These terms and conditions of service (the “Terms of Service”) govern the supply of services (the “Services”) by ScalePoynt Solutions LLC. (“Supplier”, “us”, “we”, “ours” and words of like import) to our clients (in these Terms of Service “Client”, “you” and “yours” and words of like import mean the person to which we are providing Services under these Terms of Service) under order forms (each, an “Order Form”) and Service delivery terms (each, “Service Delivery Terms”) that you and we may agree to from time to time. An Order Form and Service Delivery Terms may also reference one or more appendices (each, a “Work Appendix”) setting out additional details of the Services to which it relates. Supplier and Client are referred to together in these Terms of Service as the “Parties”.
These Terms of Service, together with the applicable Order Form and one or more applicable Service Delivery Terms and Work Appendices, constitute a legally binding agreement (when used in reference to a particular Order Form and Service Delivery Terms or particular Services, the agreement resulting from these Terms of Service and the Order Form, Service Delivery Terms and Work Appendices is referred to as the or this “Agreement”) between the Parties, and govern our delivery and your receipt and use of the Services described in the Agreement.
An Agreement is effective from and after the effective date stated in the applicable Order Form or Service Delivery Terms, or if no effective date is stated in that Order Form or Service Delivery Terms, from and after the date on which the last of the Parties executes that Order Form, or if both do not execute an Order Form, from and after the date we commence performing the applicable Services at your request (the “Effective Date”).
These Terms of Service apply notwithstanding the terms of any purchase order or RFP or other terms of yours of any kind, unless we have expressly agreed otherwise in the applicable Order Form.
If we perform Services for you before we enter into an Agreement with you for those Services, these Terms of Service shall apply to those Services for such period, and continue to apply to those Services even if we do not enter into any Order Form or any other written agreement with you concerning those Services.
1. Services; Schedules
We will provide the Services agreed to from time to time by the Parties. Unless an Order Form provides for particular dates, all deadlines and date milestones in the Order Form and during delivery of the Services are approximate. You acknowledge that if there are delays in Services due to you, any deadline or date milestone that applies to us and is affected by such delays shall be extended on a day-for-day basis by the amount of the delay. Such delays may also result in additional costs, to be discussed and agreed by the Parties at the applicable time. We shall use reasonable efforts to give you reasonable notice of any such delays that you cause.
Services. We will provide the Services described in one or more Order Forms agreed to from time to time by the Parties.
Schedules. Unless an Order Form or a Work Appendix expressly states that we warrant that Services shall be performed by or on particular dates, all dates and other timelines that we provide are good faith estimates only, and we have no liability for any delays.
2. Project Team
Project Team. The Services will be performed by the project team set out in the applicable Order Forms, Work Appendices, and Service Delivery Terms (each, a “Project Team”). We will provide Project Team resources via employees and subcontractors as deemed appropriate by us. Where Project Team resources are identified as “Key Personnel” in an Order Form, we will make reasonable efforts to give notice to you of changes in those personnel (such as for reasons of illness, resignation, termination of employment, or other causes) and to replace them with personnel of comparable seniority.
Change Procedures. Each party will follow the procedure set out in this Section 3 for any change, addition, reduction, deletion, modification, relocation, improvement, amendment, delay, rescheduling or adjustment (a “Change”) to the Services, excluding any day-to-day service requests within the scope of the Services.
Change Requests. Either Party may send a notice to the other party requesting a Change (each, a “Change Request”), which notice will specify the Change in reasonable detail to enable the other Party to evaluate it. The other Party shall timely consider and respond to any Change Request. If you make a Change Request, we will timely provide you with a proposal (“Change Order Proposal”) describing the costs, schedule impact and other relevant details of the Change Request. No Change Request will be binding upon the Parties unless accepted in writing.
Resource Additions. If new Project Team resources are agreed to be added to an engagement before the Parties document their agreement in writing, the terms discussed between them in writing, via email or messenger chat or otherwise, shall be binding until a new or amended Order Form or other Agreement document is in place, and any terms not agreed in writing shall be consistent with the latest active Order Form, and co-termed with its duration (unless otherwise agreed).
3. Artificial Intelligence and Other Automated Tools
AI Use. In performing the Services, we may use third-party artificial intelligence, machine learning, and other automated tools (“AI Tools”) as part of our development and delivery processes, including in the creation of Work Product. Our use of AI Tools is “priced in” to our Services, and subject to our express covenants and warranties, Client assumes all risks of using Work Product that is created with AI Tools. In particular, (i) Work Product created with AI Tools may not be subject to copyright or other Intellectual Property Rights and we are therefore unable to assign any copyright or other Intellectual Property Rights in any such Work Product to Client, (ii) unless otherwise expressly agreed in writing, we do not represent or warrant that the providers of AI Tools used in connection with the Services provide training-exclusion guarantees or assurances that they will treat inputs to or outputs from their AI Tools as confidential information.
AI Tool Use Restrictions. If Client requires specific restrictions on our use of AI Tools, such restrictions must be given in writing to the primary contact designated under the applicable Order Form and incorporated into that Order Form before it becomes effective. If such restrictions are requested by Client after that time, any such restrictions requested by Client must be acceptable to us. If Client wishes us to use only particular AI Tools, we reserve the right to require Client to provide us with access to such AI Tools at Client’s expense under Client’s AI Tools accounts.
4. Fees and Expenses; Billing; Taxes.
Fees. In consideration for providing the Services, you will pay us the applicable fees set out in the Agreement (the “Fees”).
Expenses. You will also pay us any travel or related expenses included in an invoice that we incur in performing the Services and (i) that are expressly set out in the Agreement; or (ii) that you approve in writing.
Payment Terms. We will invoice you in advance and on a monthly basis, or at our option on an as-incurred basis for expenses. You will pay all amounts invoiced in accordance with this Section within five (5) days of receipt of the invoice, unless otherwise specified in the Agreement.
Taxes. You shall pay all sales and excise taxes, including HST, GST, VAT, and similar taxes, duties, government charges, on amounts due under an Agreement.
Currency. All references to currency in this Agreement shall mean US dollars.
Disputes. If you in good faith dispute any amounts invoiced, the Parties will promptly address and escalate the dispute with a view to resolving the dispute as quickly as commercially reasonable.
Prorating. We shall prorate any partial periods based on the number of weekdays engaged in that period out of the total number of weekdays in that period. For clarity, if an engagement starts 5 weekdays into a 23 weekday month, the month shall be prorated at 18/23 days = 78% of Fees for that period.
Calendar-Aligned Billing. We may include the Fees due for the next period if a billing period is shorter than fifteen (15) days.
5. Progress Reporting.
The Parties may have meetings or telephone conferences, from time to time as may be appropriate, for tracing and discussing the progress of, and exchanging information relating to providing, the Services.
6. Confidentiality.
Confidential Information. The non-disclosure agreement entered into by the Parties (the “NDA”) shall continue, and shall apply to information that they provide to each under this Agreement. All such confidential information is referred to as “Confidential Information” in this Agreement. In the event of any conflict or inconsistency between any part of this Agreement and the NDA, this Agreement shall prevail to the extent of the inconsistency.
Supplier IP Development. This Section 6 shall not be construed to limit our right to independently develop or acquire products, provided it is done without use of your Confidential Information. Further, we shall be free to use for any purpose the residuals resulting from access to or work with your Confidential Information, provided that we shall not disclose your Confidential Information except as expressly permitted pursuant to the terms of the Agreement. The term "residuals" means information in intangible form, which is retained in unaided memory by persons who have had access to your Confidential Information, including ideas, concepts, know-how or techniques contained therein. We shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. For clarity, no right is granted under this Section to us to use your Intellectual Property Rights.
7. Information Security.
We shall continuously maintain, follow, enforce, review and update our security and backup procedures, which at a minimum shall at all times be compliant with applicable laws, consistent with recognized industry-accepted best practices in North America to prevent the accidental, unauthorized, or unlawful access, disclosure, destruction, or alteration of your Confidential Information or other assets in our possession or under our management.
We will implement, and will ensure that our Project Team who have access to your Confidential Information will maintain and follow, reasonable and appropriate technical and organizational safeguards, internal controls, and information security routines against, among other things, the accidental, unauthorized or unlawful access, disclosure, destruction, loss or alteration of any of your Confidential Information in our or our Project Team’s possession or control or that we or they process, and to protect the confidentiality, integrity and availability of our software, equipment and systems and your Confidential Information. Such data safeguards will be at least as good as the practices we use for our own Confidential Information.
8. Intellectual Property Rights.
Definition. As used in an Agreement, “Intellectual Property Rights” means: (i) any and all proprietary rights anywhere in the world provided under: (A) patent law; (B) copyright law (including moral rights); (C) trade-mark law; (D) design patent or industrial design law; or (E) any other statutory provision or common law principle applicable to the Agreement, including trade secret law; (ii) any and all applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing; and (iii) any and all licences and waivers and benefits of waivers of the intellectual property rights set out in clauses (i) and (ii) above, all future income and proceeds from the intellectual property rights set out in clauses (i) and (ii) above, and all rights to damages and profits by reason of the infringement or violation of any of the intellectual property rights set out in clauses (i) and (ii) above.
Work Product. You own and will own all right, title and interest that we have, including all of our Intellectual Property Rights, in and to all deliverables, source code, documentation, content, technology, materials and other work products developed, produced or provided by us to you in the performance of the Services for you (the “Work Product”), and we hereby do transfer and assign, and agree to transfer and assign to you, in each case effective upon and subject to your payment of all Fees required to be paid under that Order Form through to its termination or expiry, the Work Product and all of our Intellectual Property Rights therein, and waive all other rights therein. Work Product does not include any Supplier IP.
Client IP. In order to facilitate our performance of the Services, you may provide to us certain of its or its licensors’ software, content, materials, technology, software programs, application programming interfaces, business rules, business processes, models, tools, customer information, and proprietary materials of yours that are or have been procured, created or developed by or for or licensed to you (collectively, the “Client IP”). As between the Parties, Client IP is your property. You hereby grant to us during the Term a non-exclusive and revocable license to use the Client IP solely to the extent required in order to perform the Services, and you reserve all other rights thereto.
Supplier IP.
In providing the Services, we may use, modify, enhance and develop its own software and other intellectual property, including but not limited to operating playbooks and processes, reference architecture designs, contracts and agreements, automation scripts, sales material, onboarding and rollout procedures and materials, and source code, as well as documentation related to any of the foregoing (collectively, the “Supplier IP”). For clarity, Supplier IP does not include any of your Confidential Information. For additional specificity, the applicable Order Forms and/or Service Delivery Terms may describe and scope specific Supplier IP to be used in the Services. As between the Parties, Supplier IP is our property.
To the extent that in providing the Services we provide or deliver to you any Supplier IP in the performance of the Services under an Order Form (“Approved Supplier IP”), we hereby grant to you, effective upon and subject to your payment of all Fees required to be paid under that Order Form through to its termination or expiry, a non-exclusive, perpetual (subject to any termination of the Agreement by us for non-payment by you), transferable, sublicensable license to use the Approved Supplier IP for your own internal use in connection with such Service. You may use, modify, enhance, adapt, and create derivative works from Approved Supplier IP exclusively for your own internal use only.
Open Source and Third-Party Components. The Work Product and any Deliverables may include or be integrated with third-party software, libraries, or open source components, provided that we will not use any so-called “copyleft” materials without your prior consent. Such components are subject to their applicable third-party or open source license terms, which shall govern their use solely with respect to those components. Nothing in this Agreement transfers ownership of any such third-party or open source components to you.
9. Representations and Warranties; Remedy; Certain Disclaimers.
Each Party represents and warrants to the other Party that it has the right and authority to enter into an Agreement and to grant all rights granted by such Party in the Agreement.
We represent and warrant to you that we will perform or cause to be performed (including through appropriate supervision and inspection) the Services and otherwise fulfill its obligations hereunder honestly and in good faith, exercising skill, care and diligence in accordance with recognized professional and industry standards among consultants, and in a timely manner and in accordance with the terms and conditions of the Agreement and all applicable laws.
We shall not have any responsibility for the accuracy, quality, integrity, legality, non-infringement, reliability, or suitability of any Client IP or third party materials, or for obtaining rights to use or title to any Client IP, or for any losses, costs, damages, expenses or liabilities that Client IP or third party materials or their use may cause.
EXCEPT AS SPECIFICALLY SET FORTH OR REFERENCED IN AN AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF EITHER PARTY, EXPRESS, IMPLIED, STATUTORY, COLLATERAL, OR OTHERWISE, REGARDING ANY MATTER, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Indemnities.
Supplier Indemnities.
We shall defend, indemnify and hold you harmless from and against all losses, costs, damages, expenses and liabilities (including reasonable legal fees and court costs) which may be suffered or incurred by you resulting from any claim by any third party arising out of:
the infringement, violation or misappropriation of any third party copyright or trade secret by the provision, receipt or use of the Work Product, Supplier IP or the Services by you in accordance with this Agreement.
Notwithstanding Section 10(a)(i), we shall have no obligation to indemnify you for any claim arising from (i) improvements or modifications made to any Work Product, Supplier IP or deliverable by any Person other than us or any person for whom we are responsible hereunder, (ii) use of any Intellectual Property Rights not supplied by us, including any Client IP or third party materials, (iii) claims arising from the use of Work Product, Supplier IP or a deliverable in combination with any Intellectual Property Rights not supplied by us if the claim would not have arisen but for such combination, (iv) unauthorized use of any Work Product, Supplier IP or deliverable or use not in accordance with documentation provided by us to you describing the intended use thereof, (v) your continued use of Work Product, Supplier IP or deliverables after we have provided a non-infringing version of same that otherwise complies with the requirements of the Agreement, or (vi) Work Product created by AI Tools.
If any part of Work Product, Supplier IP, a deliverable or the Services becomes, or in our opinion is likely to become, the subject of an infringement claim, we will, at our option: (A) at our expense obtain for you the right to continue to use the applicable Work Product, Supplier IP, deliverable or Services as provided in the Agreement; or (B) at our expense replace the applicable Work Product, Supplier IP, deliverable or Services with another product or service that provides similar functionality and otherwise complies with the requirements of the Agreement.
Client Indemnity. You shall defend, indemnify and hold us harmless from and against all losses, costs, damages, expenses and liabilities (including reasonable legal fees and court costs) which may be suffered or incurred by us resulting from any claim by any third party in respect of, arising out of or as a result of the infringement, violation or misappropriation of the Intellectual Property Rights of any person by the Client IP.
Indemnification Process. The party seeking indemnification of a claim as provided for in an Agreement shall give the indemnifying party: (a) prompt written notice of such claim; (b) authority to control and direct the defence or settlement of such claim; and (c) such information and assistance as the indemnifying party may reasonably request, at indemnifying party’s expense, in connection with such defence or settlement. Notwithstanding the foregoing, the indemnifying party will not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto or unless the indemnified party provides its prior written consent to such settlement. In any action that the indemnifying party provides defence on behalf of the indemnified party, the indemnified party may participate in such defence at its own expense by counsel of its choice.
11. Limitation of Liability.
Maximum Aggregate Liability. Subject to Section 11(c), each Party’s liability, if any, to the other Party arising out of or in any way related to an Order Form or the performance of its duties and obligations thereunder (including under the NDA), other than your obligation to pay amounts due under the Agreement, will for all purposes in total be limited to direct damages in an amount not to exceed the Fees actually paid by you pursuant to the Order Form over the lesser of (i) the then current term of the Order Form and (ii) the twelve (12) months preceding the date of the claim.
Limitations on Damages. Subject to Section 11(c), in no event, whether as a result of breach of contract, tort liability (including negligence or strict liability) or otherwise, shall either Party be liable to the other for any special, indirect, incidental, exemplary, punitive, aggravated or consequential damages, or for damages for any loss of profits, loss of business, loss of revenue, or loss of anticipated savings or third party damages, or for damages for any loss of, or damage to, data, reputation, or goodwill.
Breach of Service Obligations. Your sole remedy for any breach by us of our service obligations under the Agreement other than its confidentiality obligations, other than your remedy of termination for material breach, shall be our reasonable efforts to correct any such breach in a timely manner. For clarity, you have no right under the Agreement for damages for any breach by us of its service obligations under the Agreement other than its confidentiality obligations. This exclusion of remedies shall not apply to our gross negligence or wilful misconduct. For purposes of the Agreement, “material breach” means a breach of the Agreement that deprives the innocent party of substantially the whole of the benefit of the Agreement. For clarity, any default by you of its payment obligations under the Agreement constitutes a material breach.
Exceptions. Sections 11(a) and 11(b) will not limit your liability or obligations under Section 10 (Indemnity) or Section 14 (Non-Solicitation), or for your infringement of our Intellectual Property Rights. For clarity, Sections 11(a) and 11(b) shall apply to and limit all claims against us, including claims arising from or relating to Section 6 (Confidentiality) or under the NDA, Section 10 (Indemnity), infringement of Intellectual Property Rights, and any other provision of the Agreement.
12. Term; Termination; Suspension.
Term. This Agreement will commence on the Effective Date and will continue during the term of any outstanding Orders until terminated in accordance with its terms (the “Term”).
Termination of Agreement for Material Breach, Bankruptcy etc., Convenience. Each Party may terminate an Agreement immediately upon written notice to the other Party:
if the other Party materially breaches the Agreement and, if that breach is curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach; or
if the other Party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the Party’s consent, if the other Party assigns its property to its creditors or performs any other act of bankruptcy or becomes insolvent and cannot pay its debts when they are due, or the other Party ceases to carry on all or substantially all, of its business that relates to the Services; or
for convenience if there are no Order Forms in effect hereunder at the time.
No Client Termination of Agreement or Order Form for Convenience. You may not terminate this Agreement or any Order Form for convenience except under Section 12(b)(iii). You will remain liable for all amounts due under any Order Forms through to the end of the applicable terms.
Supplier Termination of Agreement for Convenience. We may at any time terminate this Agreement for convenience by providing you with fifteen (15) days written notice, provided that if any Orders are then outstanding we shall at its election either complete such Orders, or promptly after termination refund to you the pro-rated portion of any prepaid Fees that are unused at the time of termination (after deduction of all fees and expenses due or accrued due to us through to termination).
Suspension of Services for Non-Payment. We may on notice to you immediately suspend our performance of any Order Form if you are overdue in any payment obligation under this Agreement by ten (10) or more days. In addition:
Repeated Late Payment. In the event of three (3) late payments, or notification of an anticipated third (3rd) late payment (the date (or anticipated date) of the last of such late payments, the “Late Payment Date”), in a twelve (12) month period, we may suspend services, with written notice to you, within two (2) business days of the Late Payment Date.
Very Late Payment. In the event we are notified of an anticipated late payment in excess of twenty (20) days, we may suspend services, with written notice to you, within two (2) business days of the Late Payment Date.
If we suspend for such reasons, you will not be entitled to any related abatement of Fees. We will resume services as soon as reasonably possible following full receipt of all outstanding payments.
13. Other Terms Relating to Termination.
Upon the termination or expiry of an Agreement or any Order Form:
We may invoice you, and you will pay us, all amounts due for Services performed thereunder up to the effective date of expiry or termination (and for clarity, upon a termination by you for convenience, through to the end of the applicable Order Forms);
Each Party will deliver to the other Party all of the other Party’s Confidential Information, or destroy its copies thereof and certify to the other Party that it has done so, as of the effective date of expiry or termination; and
Termination does not affect a Party’s accrued rights and obligations at the date of termination.
14. Non-Solicitation.
You will not, without our prior written consent, solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of any other person, any of our Personnel during the Term or during the twelve (12) months following termination or expiration of this Agreement. The foregoing will not apply to general solicitation in connection with any solicitation or recruitment not targeted at such Personnel, including, without limitation, through general advertisements or the efforts of any recruiting or employment agencies not targeted at such Personnel. For purposes of this Section, “Personnel” means any employee and any direct or indirect independent contractor. If you do employ or contract with any of our Personnel in breach of this Section or enter into an agreement with Personnel to do so, you shall promptly notify us of all particulars of the employment or engagement, and shall on demand from us promptly pay to us the sum of USD$100,000 per Personnel in recognition of the substantial cost to us of identifying, employing, contracting with and training Personnel. The Parties agree that this sum is a genuine pre-estimate of liquidated damages that may result from such a breach and the obligation to pay it in such circumstances is not a penalty.
15. Force Majeure.
No Party will be liable to the other Party for any failure or delay in fulfilling an obligation hereunder, if said failure or delay is attributable to circumstances beyond its control, including, but not limited to, any fire, labor dispute or government measure (“Force Majeure”). Any deadline for fulfilling a Party’s obligations will be extended for a period of time equal to that of the continuance of the Force Majeure, provided that the Party uses reasonable efforts to minimize the effect of the Force Majeure on its performance under the Agreement. If either Party determines that it is unable to perform any of its obligations hereunder as a result of an event of Force Majeure, it will notify the other Party in writing of the occurrence of and reason for any such delay within a reasonable period of time after the commencement of the cause thereof. Notwithstanding the continuance of an event of Force Majeure, a Party may not delay performance of its obligations under any circumstances by more than thirty (30) days, otherwise the other Party may terminate the Agreement and, in the case of your termination, perform the same services yourself or obtain the same services from a third party.
16. References to Client.
During the Term, we may on our websites, promotional material, and similar materials make reference to you and include your logo, marks and other branding.
17. Non-Disparagement.
At no time shall you make any statement, either oral or in writing, that would have the effect of disparaging, discrediting, or defaming us or Personnel or lowering their reputation in the estimation of reasonable persons, including to our customers and prospective customers.
18. Survival.
The expiration or termination of an Agreement will not affect or prejudice any rights or obligations which have accrued or arisen under an Agreement prior to the time of such termination and those rights and obligations will survive the expiration or termination of this Agreement. Notwithstanding any other provision of this Agreement, Sections 6 (Confidentiality), 8 (Intellectual Property Rights), 10 (Indemnities), 11 (Limitation of Liability), 12 (Term; Termination: Suspension), 13 (Other Terms Relating to Termination), 14 (Non-Solicitation), 17 (Non-Disparagement), 19 (Governing Law), 20 (Notices), and 21 (General) of this Master Services Agreement, this Section 18, and all other provisions of an Agreement necessary to give effect thereto will survive the expiration or termination of an Agreement and remain in full force and effect.
19. Dispute Resolution; Governing Law.
Dispute Notice. Prior to initiating any litigation arising out of or relating to this Agreement (other than with respect to your default of any payment obligation in the Agreement), the disputing Party shall deliver written notice to the other party describing the dispute in reasonable detail (a "Dispute Notice"). Within ten (10) business days after delivery of a Dispute Notice, each party shall designate a senior executive with authority to resolve the dispute, and those executives shall meet (in person or by videoconference) and negotiate in good faith to resolve the dispute. No party may commence any legal proceedings with respect to a dispute that is subject to this Section until at least forty-five (45) days have elapsed from the date the Dispute Notice was delivered, unless the parties jointly agree in writing that further negotiation would be futile.
Injunctive Relief. Nothing in this Section shall prevent either party from seeking temporary, preliminary, or permanent injunctive relief, or any other form of equitable relief, from a Texas court of competent jurisdiction at any time, without regard to the negotiation period set forth herein, where such party reasonably believes that such relief is necessary to prevent irreparable harm. All applicable statutes of limitation and any contractual limitation periods shall be tolled from the date a Dispute Notice is delivered until the earlier of (a) the date the dispute is resolved in writing by the parties, or (b) the expiration of the forty-five (45) day negotiation period (or any agreed extension thereof).
Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and applicable federal law. The Parties submit to the exclusive jurisdiction of the state and federal courts located in Texas for any permitted court proceedings arising out of or relating to this Agreement.
20. Notices.
Notices sent to either Party as required by, or pursuant to, an Agreement must be in writing and will be effective when delivered in person, by mail or, in the case of routine operational notices, by email, one (1) day after being sent by overnight courier or email, or two (2) days after being sent by first class mail postage prepaid, to the addresses set forth in the Order Form. Claims under an Agreement and any other legal notices must be delivered by hand or mail, and also by email.
21. General.
The Parties are Independent. Our relationship to you is that of an independent supplier. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither Party has any authority of any kind to bind the other Party in any respect.
The Parties are Responsible for their Own Personnel. Each Party is solely responsible for: (i) all wages, salaries and other amounts due to its respective employees, permitted subcontractors or representatives; and (ii) all obligations in respect of its employees, permitted subcontractors or representatives relating to income tax withholdings, employment insurance premiums, workers’ compensation, health care and pension plan contributions, and other similar employment-related responsibilities and liabilities.
Waivers. A waiver of any default, breach or non-compliance under an Agreement is not effective unless in writing and signed by the Party to be bound by the waiver.
Amendment. We may on not less than thirty (30) days notice to you give notice of amendment to these Terms of Service or Service Delivery Terms. The notice shall provide particulars of all changes to the Agreement that are included in the amendment. If you do not give us notice of objection to such amendment by the end of such thirty (30) day period, you shall be deemed to have agreed to such amendment effective the day after such period, and the Terms of Service and Service Delivery Terms shall be deemed to have been amended effective as of such day. After receipt of your notice of objection, we shall each negotiate in good faith to resolve our disagreement over the amendment. If we do not agree on the amendment, the amendment as we originally proposed shall take effect upon the next renewal of the Agreement. No other modification of or amendment to this Agreement will be valid or binding unless set out in writing and duly executed by the Parties.
Enurement, Assignment. An Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective successors and permitted assigns. Either Party may upon the prior consent of the other Party (which shall not be unreasonably withheld or delayed) assign the Agreement and then outstanding Order Forms in their entirety to an affiliate, or to any entity to which it may merge, amalgamate, or otherwise transfer a substantial portion of its business or any line of business, outsource, or divest a particular department or line of business. A Party may not otherwise assign an Agreement or any right or obligation hereunder to any person, without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed.
Subcontracting. We may delegate or subcontract all or any part of the Services to any third party. The delegating or subcontracting of all or any part of our obligations set out in an Agreement to any third party will not relieve us from any obligation or liability under the Agreement, and we will remain responsible for the performance its obligations subcontracted to and performed by all such third parties to the same extent as if such obligations were performed by us.
Entire Agreement. These Terms of Service, together with an Order Form and Service Delivery Terms and Work Appendices attached to them and any agreements and documents to be delivered pursuant to their terms, constitutes the entire agreement between the Parties pertaining to the subject matter of that Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of any of the Parties in respect of the subject matter thereof.
Conflict and Priority. In the event of any conflict or inconsistency between any provisions of the Agreement, the conflict or inconsistency shall be resolved in accordance with the following priority: (i) Order Form; (ii) Work Appendix; (iii) this Terms of Service; and (iv) Service Delivery Terms, provided, however, that the provisions of a Service Delivery Terms will prevail over this Terms of Service to the extent the Service Delivery Terms states that it prevails and expressly refers to the provisions of this Terms of Service over which it prevails.
Severability. If a court or other lawful authority of competent jurisdiction declares any provision of this Agreement invalid, illegal or unenforceable, such provision will be severed from this Agreement and this Agreement will continue in full force and effect with respect to all other provisions and all rights and remedies accrued under such other provisions and sections will survive any such declaration.
No Contra Proferentum. The Agreement has been negotiated and approved by the Parties. Notwithstanding any rule or maxim of law or construction to the contrary, any ambiguity or uncertainty will not be construed against either of the Parties by reason of the authorship of any of the provisions of the Agreement.
Counterparts. The Order Form may be executed in counterparts and by electronic delivery, each of which will be deemed an original, and both of which taken together will constitute one and the same agreement.
Export Compliance. Client represents that it is not located in, under control of, or a national or resident of any country or party subject to U.S. export restrictions or sanctions. Client agrees to comply with all applicable U.S. export control and sanctions laws. Supplier may suspend or terminate services if required to comply with such laws.
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