This Services Agreement (“Agreement”) is made between Discovered Intelligence Inc., a corporation duly incorporated under the laws of Canada, and having its registered office at 2421 Huron Park Place, Mississauga, Ontario, Canada, L5C 4J9 (“Discovered Intelligence“) and Company (“Company”) and comprises the following terms and conditions.
Discovered Intelligence and Company desire to have Discovered Intelligence perform services for Company, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. SCOPE
1.1. Statements of Work. Company and Discovered Intelligence may execute statements of work that describe the specific services to be performed by Discovered Intelligence, including any work product to be delivered by Discovered Intelligence (as executed by the parties, a “Statement of Work”). Each Statement of Work will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein.
1.2. Performance of Services. Discovered Intelligence will perform or cause to be performed the services specified in each Statement of Work (the “Services”) in accordance with the terms and conditions of this Agreement and of each Statement of Work. Discovered Intelligence reserves the right to subcontract any of the Services, provided any such contractor(s) meet the requirements and conditions of this Agreement and any related Statements of Work. Discovered Intelligence may replace or change employees and subcontractors as required.
1.3. Non Exclusivity. Nothing in this Agreement will be deemed to restrict or limit Discovered Intelligence’s right to perform similar services to the Services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that Discovered Intelligence complies with its obligations under Section 5 with respect to Company Confidential Information. Discovered Intelligence may develop for itself or for others, materials that are competitive with those produced as a result of the services provided hereunder, irrespective of their similarity to the Deliverables.
1.4. Changes to Statement of Work. Company may submit to Discovered Intelligence written requests to change the scope of Services described in a Statement of Work (each such request, a “Change Order Request”). Discovered Intelligence may, at its discretion, consider such Change Order Requests, but Discovered Intelligence has no obligation to do so. If Discovered Intelligence elects to consider such a Change Order Request, then Discovered Intelligence will promptly notify Company if it believes that the Change Order Request requires an adjustment to the fees (which may be increased or decreased) or to the schedule (which may be shortened or extended) for the performance of the Services. In such event, the parties will negotiate in good faith a reasonable and equitable adjustment to the fees and/or schedule, as applicable. Discovered Intelligence will continue to perform Services pursuant to the existing Statement of Work and will have no obligation to perform any Change Order Request unless and until the parties have agreed in writing to such an equitable adjustment.
1.5. Company Responsibilities. In connection with each Statement of Work, Company acknowledges that Company’s timely provision of (and Discovered Intelligence’s access to) Company’s facilities, equipment, assistance, cooperation, data, information and materials from Company’s officers, agents and employees, as may be applicable for each Statement of Work (“Cooperation”) is essential to the performance of the Services, and that Discovered Intelligence shall not be liable for any deficiency in performing the Services if such deficiency results from Company’s failure to provide full Cooperation as required hereunder. Cooperation includes, but is not limited to, (i) designating a project manager or technical lead to interface with Discovered Intelligence during the course of the Services, (ii) allocating and engaging additional resources as may be required to assist Discovered Intelligence in performing the Services and (iii) making available to Discovered Intelligence any data, information and any other materials required by Discovered Intelligence to perform the Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Company Materials”). Company will be responsible for ensuring that all such Company Materials are accurate and complete.
1.6. Discovered Intelligence Obligations. While on Company’s premises, Discovered Intelligence’s employees and subcontractors shall comply with all reasonable security practices and procedures generally prescribed by Company and provided in writing to Discovered Intelligence in advance. Discovered Intelligence employees and subcontractors shall not be required to sign any waivers, releases or other documents to gain access to Company’s premises in connection with the performance of the Services and any such waivers, releases or other documents shall be invalid and shall have no effect.
1.7. Designated Contacts. Each party will designate in each Statement of Work an individual who will be the primary point of contact (the “Primary Contact”) between the parties for all matters relating to the Services to be performed thereunder. A party may designate a new Primary Contact by written notice to the other party.
1.8. Relationship of the Parties. Discovered Intelligence is performing the Services as an independent contractor, is not an employee, agent, joint venture or partner of Company. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise. Discovered Intelligence acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Company makes available to its employees. Discovered Intelligence is solely responsible for all taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between Discovered Intelligence and its personnel and the performance of Services by such personnel.
2. PAYMENT
2.1. Fees. For Discovered Intelligence’s performance of Services, Company will pay Discovered Intelligence fees calculated in accordance with the terms set forth in the applicable Statement of Work.
2.2. Expenses. Unless otherwise specified in the applicable Statement of Work, upon invoice from Discovered Intelligence, Company will reimburse Discovered Intelligence for all reasonable expenses incurred by Discovered Intelligence while performing the Services, including without limitation, transportation services, lodging, meal and out-of-pocket expenses, and third party online and offline research services directly related to the provision of the Services. Discovered Intelligence will include, upon request, reasonably detailed documentation of all such expenses in excess of CAD$25 with each related invoice.
2.3. Payment Terms. Discovered Intelligence will invoice Company on a regular basis for all applicable fees and expenses incurred in connection with the performance of the Services and other payments due under this Agreement and any Statement of Work. Company will pay each such invoice no later than thirty (30) days from the date of the invoice. Any amounts under the invoice not paid within such thirty (30) day period will accrue interest starting on the date that is thirty (30) days after Company’s receipt thereof at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is lower.
2.4. Taxes. All fees, expenses and other amounts payable to Discovered Intelligence hereunder do not include any harmonized sales, use, value added, excise or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Company (excluding any taxes based on Discovered Intelligence’s net income). Company will promptly reimburse Discovered Intelligence for any such amounts that Discovered Intelligence pays on Company’s behalf.
2.5. Deficiencies. In the event of deficiencies in the provision of the Services, including but not limited to, nondelivery or a breach of the terms or conditions of this Agreement, Company shall be entitled to withhold payment in respect of same, until such deficiency is corrected. Company shall pay for accepted work not in dispute.
3. REPORTS & INVOICES
3.1. Invoices. Discovered Intelligence shall identify in each invoice issued, the Services rendered or the particulars of expenses incurred and paid. Company reserves the right to audit all invoices pertaining to Services rendered to Company by Discovered Intelligence, and Discovered Intelligence shall give Company access to all supporting documentation to enable Company to perform such audit.
3.2. Progress Reports. Upon Company’s request, Discovered Intelligence shall submit weekly progress and activity reports regarding the Services performed pursuant to a particular Schedule. Such reports are subject to verification and audit.
4. OWNERSHIP & INTELLECTUAL PROPERTY RIGHTS
4.1. Company Ownership. Company will own all rights, title and interest in any work product specifically identified in a Statement of Work as “Company owned” (“Work Product”), including all Intellectual Property Rights (as defined below) therein. Discovered Intelligence hereby assigns to Company all rights, title and interest in and to the Work Product (excluding all Discovered Intelligence Materials (defined in Section 4.2) incorporated into the Work Product or on which the Work Product is based). At Company’s request and expense, Discovered Intelligence shall assist and cooperate with Company in all reasonable respects and shall execute documents, and take such further acts reasonably requested by Company to enable Company to acquire, transfer, maintain, perfect and enforce its ownership rights in the Work Product.
Intellectual Property Rights.
Intellectual Property Rights include all related worldwide patents, patent applications and disclosures, copyrights rights (including copyrights, copyright registrations and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboards, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases), moral rights, trademarks, trade secrets and other rights with respect to confidentiality or proprietary information, know-how, other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; rights of priority and any other intellectual or industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing
4.2. Discovered Intelligence Ownership.
(i) Subject to Company’s rights in the Company Materials and in the Work Product, as between the Company and Discovered Intelligence, Company agrees that Discovered Intelligence shall own (and Company hereby assigns to Discovered Intelligence) all other Intellectual Property Rights, including, without limitation, any improvements or modifications to Discovered Intelligence’s proprietary computer software programs and related materials, that Discovered Intelligence, or personnel working for or through Discovered Intelligence, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing the Services or as a result of such Services whether or not eligible for patent, copyright, trademark, trade secret or other legal protection (collectively, “Discovered Intelligence Materials”). Company acknowledges that Discovered Intelligence, in its sole discretion, shall have the right to license the Discovered Intelligence Materials or any portion thereof into products or services for use by other licensees or customers of Discovered Intelligence. At Discovered Intelligence’s request and expense, Company shall assist and cooperate with Discovered Intelligence in all reasonable respects and shall execute documents, give testimony and take such further acts reasonably requested by Discovered Intelligence to enable Discovered Intelligence to acquire, transfer, maintain, perfect and enforce Intellectual Property Rights and other legal protection for the Discovered Intelligence Materials.
(ii) Subject to the terms and conditions of this Agreement, Discovered Intelligence shall grant to Company a worldwide, non-exclusive, non-transferable, non-sub-licensable, revocable license to use the Discovered Intelligence Materials contained in any deliverable of Discovered Intelligence under a Statement of Work solely for Company’s internal business purpose. Company shall not, without the written consent of Discovered Intelligence, (a) use the Discovered Intelligence Materials except as expressly authorized in this Agreement; (b) copy the Discovered Intelligence Materials (except for reasonable backup purposes); (c) modify, adapt, or create derivative works of the Discovered Intelligence Materials; (d) rent, lease, loan, resell, transfer, sublicense (including but not limited to offering any of the functionality of the Discovered Intelligence Materials on a service provider, hosted or time sharing basis) or distribute the Discovered Intelligence Materials to any third party; (e) decompile, disassemble or reverse-engineer the Discovered Intelligence Materials or otherwise attempt to derive the Discovered Intelligence Materials source code; or (f) authorize any third parties to do any of the above. For the avoidance of doubt, Discovered Intelligence Materials shall not include any Discovered Intelligence software (“Discovered Intelligence Software”) and any Discovered Intelligence Software shall be licensed pursuant to a Discovered Intelligence Software License Agreement entered into between the parties.
4.3. Reservation of Rights. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other Intellectual Property Rights, and each party retains all right, title and interest in and to their respective technologies and other Intellectual Property Rights.
5. CONFIDENTIAL INFORMATION.
5.1. Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (A) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (B) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, or (C) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. “Confidential Information” shall include, but is not limited to, research, products, software, services, database, business plans, development materials, inventions, processes, specifications, technology designs, drawings, diagrams, engineering materials, physical configuration of technology, marketing materials, techniques, mask works, documentation, customer information, pricing information, procedures, data concepts, financial information and employee files. Without limiting the foregoing, (i) Discovered Intelligence Confidential Information includes the Discovered Intelligence Materials, (ii) Company Confidential Information includes Company Materials and Work Product, and (iii) Confidential Information of both parties includes the terms of this Agreement and any Statement of Work hereunder.
5.2. Use and Disclosure Restrictions. The receiving party of Confidential Information (“Recipient”) agrees: (i) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in the strictest of confidence; (ii) not to disclose such Confidential Information to any third parties; and (iii) not to use any such Confidential Information for any purpose other than in furtherance of this Agreement and any Statement of Work and the activities described herein and therein. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees and consultants (collectively, “Representatives”) who have a bona fide need to know such Confidential Information, but solely to the extent necessary to pursue the activities described herein and for no other purpose; provided that each such Representative first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other party’s Confidential Information as those set forth in this Agreement. Recipient shall be responsible for any breach of these confidentiality obligations by its Representatives, which shall be considered a breach by Recipient. Any disclosure of Confidential Information to Recipient by (a) Discloser or any of its affiliates or (b) any unaffiliated third party at the request of Discloser shall be deemed to be a disclosure made by Discloser under this Agreement.
5.3. Exclusions. The obligations of Recipient under Section 5.2 shall not apply to any Confidential Information which: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access to any Confidential Information of Discloser.
5.4. Required Disclosures. The provisions of Section 5.2 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction; provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser reasonable advance notice of such required disclosure in order to enable Discloser to prevent or limit disclosure. Recipient shall only disclose that portion of such Confidential Information that, in the opinion of its legal counsel, is reasonably required to be disclosed and shall exercise all commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information it discloses.
5.5. Independent Development. Recipient reserves the right to develop and market any technology, products or services or pursue business opportunities that compete with or are similar to those disclosed by Discloser under this Agreement without the use of the Discloser’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Recipient from employing general ideas, concepts or techniques which may be retained in the unaided human memory by Recipient personnel in the course of their review of the Confidential Information (but without any attempt to memorize such information). The foregoing sentence shall not, however, grant Recipient any rights under any patents or copyrights.
5.6. Return or Destruction of Confidential Information. Upon termination of this Agreement or an applicable Statement of Work, Recipient will promptly return to Discloser, or at Discloser’s option, destroy, all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
5.7. Injunctive Relief. Each party acknowledges that the unauthorized use or disclosure of Discloser’s Confidential Information would cause Discloser to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, each party agrees that Discloser will have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
6. COMPUTER ACCESS
6.1. Access. If it is necessary for Discovered Intelligence to have access to and to use Company’s computer systems in performing the Services, Discovered Intelligence shall limit such access and use, solely to the performance of the Services and shall not access or attempt to access any computer systems, files, software or services other than those required for the performance of the Services. Discovered Intelligence shall limit such access to those resources required to have such access in connection with performance of the Services.
6.2. Confidential Information. All user identification numbers and passwords disclosed to Discovered Intelligence and any information obtained by Discovered Intelligence as a result of access to and use of computer systems shall be deemed to be and treated as, Confidential Information under this Agreement. Discovered Intelligence shall cooperate in the investigation of any apparent unauthorized access to any computer systems in the context of this Agreement.
7. WARRANTY.
7.1. Services Warranty. Discovered Intelligence warrants that the Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Services. As Company’s sole and exclusive remedy and Discovered Intelligence’s entire liability for any breach of the foregoing warranty, Discovered Intelligence will, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty or refund to Company the fees paid for the non-conforming Services.
Warranty Disclaimers. THE EXPRESS WARRANTIES IN SECTION 7.1 ARE IN LIEU OF, AND DISCOVERED INTELLIGENCE DISCLAIMS, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SUCH WARRANTY SHALL CONSTITUTE DISCOVERED INTELLIGENCE’S SOLE OBLIGATION AND COMPANY’S SOLE REMEDY IN CONTRACT, TORT OR OTHERWISE WITH RESPECT TO THE SERVICES. DISCOVERED INTELLIGENCE DOES NOT WARRANT THAT THE OPERATION OF THE DISCOVERED INTELLIGENCE MATERIALS OR ANY OF THE SERVICES PERFORMED PURSUANT TO ANY STATEMENT OF WORK WILL BE UNINTERRUPTED OR ERROR-FREE.
8. TERM AND TERMINATION.
8.1. Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Discovered Intelligence is performing Services pursuant to any Statement of Work.
8.2. Termination for Default. Each party will have the right to terminate this Agreement or any Statement of Work if the other party breaches any material term of this Agreement or Statement of Work and fails to cure such breach within thirty (30) days after receipt of written notice thereof. Notwithstanding the foregoing, a material breach of Section 4.2(ii) shall be grounds for immediate termination. Notice of termination of any Statement of Work shall not be considered notice of termination of this Agreement unless specifically stated in the notice; provided, however, any termination of this Agreement shall automatically terminate all Statement(s) of Work. The decision to terminate shall not be construed as an election of remedies or a waiver thereof, and Company and Discovered Intelligence, as the case may be, shall be entitled to its remedies at law and in equity. The failure to object to an act of default shall not be deemed a waiver thereof.
8.3. Termination without Cause. If there are no open Statements of Work and there are no Services being provided under any Statements of Work, then either party shall have a right to terminate this Agreement by providing 30 days written notice to the other.
8.4. Effect of Termination. Upon the expiration or termination of this Agreement or of any Statement of Work: (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (ii) Company will, within thirty (30) days after receipt of Discovered Intelligence’s invoice, pay all accrued and unpaid fees and expenses. Notwithstanding the foregoing to the contrary, the Recipient may retain copies of project notes and work product for reference purposes, which the Recipient shall continue to treat as Confidential Information under this Agreement. For the avoidance of doubt, anything that is stored on routine back-up media solely for the purpose of disaster recovery shall be subject to destruction in due course, provided that, employees are precluded from accessing such information in the ordinary course of business prior to destruction. For clarity, the termination or expiration of this Agreement or any Statement of Work shall not absolve any party for any breach of obligation or liability that arose under this Agreement, or an applicable Statement of Work prior to such termination.
9. INDEMNIFICATION. Each party (an “indemnifying party”) will defend (or settle), indemnify and hold harmless at its expense, any action brought against the other party (an “indemnified party”) by a third party to the extent that it is based upon a claim for bodily injury, personal injury (including death) to any person, or damage to tangible property resulting from the negligent acts or willful misconduct of the indemnifying party or its personnel hereunder, and will pay any reasonable, direct, out-of-pocket costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against the indemnified party (or are payable in settlement by the indemnified party); provided that the indemnified party: (i) promptly notifies the indemnifying party in writing of the claim; (ii) grants the indemnifying party sole control of the defense and settlement of the claim; and (iii) provides the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The indemnifying party will have no obligation under this Section to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party or its employees or subcontractors.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL DISCOVERED INTELLIGENCE BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR ANY WORK PRODUCT PROVIDED BY DISCOVERED INTELLIGENCE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF DISCOVERED INTELLIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DISCOVERED INTELLIGENCE’S TOTAL LIABILITY TO COMPANY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO DISCOVERED INTELLIGENCE BY COMPANY UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.
11. NON-SOLICITATION AND NON-COMPETITION
11.1. Non-Solicitation. During the term of this Agreement and for a period of six (6) months thereafter, neither party shall directly or indirectly employ, solicit or retain the services of the personnel of other party or its contracted affiliates that are involved in the receipt or provision of Services under this Agreement, for its own benefit or the benefit of another.
11.2. Non-Competition. During the term of this Agreement and for a period of six (6) months thereafter, Discovered Intelligence shall not, for purposes competitive with the Company, solicit or attempt to solicit business, directly or indirectly with Company’s customers involved in receipt or provision of the Services under this Agreement.
12. APPLICABLE LAWS AND REGULATIONS
12.1. Rules. Discovered Intelligence, when in or upon Company’s premises, shall obey all rules and regulations regarding the conduct of employees or non-employees on the premises, including but not limited to security rules and regulations.
12.2. Laws. Discovered Intelligence shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, municipal, and local governing bodies having jurisdiction over the Services or any part thereof. Discovered Intelligence shall indemnify, defend and save harmless Company from any and all liabilities and penalties arising from any non-compliance or violation of such laws, ordinances, codes and regulations.
13. GENERAL PROVISIONS.
13.1. Survival. Sections 4 – Intellectual Property (except 4.2(ii)), 5 – Confidential Information, 9 – Indemnification, 10 – Limitation of Liability, 11 – Non-Solicitation and Non-Competition, and this Section 13, shall survive the expiration or earlier termination, for any reason, of this Agreement. Section 4.2(ii) shall survive expiration, but not termination of this agreement.
13.2. Assignment. Company may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Discovered Intelligence may assign this Agreement in whole or in part to an affiliate, upon written notice to Company (such notice to be delivered electronically or otherwise) or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, or the sale of all or substantially all of Discovered Intelligence’s assets or ownership rights or the sale of that portion of Discovered Intelligence’s business to which this Agreement relates. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
13.3. Governing Law. This Agreement shall be governed by. and construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the Parties hereto irrevocably and unconditionally agree to submit to the courts of the Province of Ontario and all courts competent to hear appeals there from.
13.4. Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by email delivery, by overnight courier delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and except as otherwise stated, in each instance will be deemed given upon receipt. All communications will be sent to the mail or email addresses set forth below. Notice given by counsel to a party shall be considered notice given by a party. Any notice or demand shall be deemed to have been given upon actual delivery (or refusal of delivery). Notwithstanding the foregoing, notices delivered by email shall be deemed delivered as of the date the email transmission is sent, provided that (a) the email is sent to the email address below and (b) a recipient using the email address below has expressly acknowledged receipt by response email or a copy of the notice is sent by overnight courier to the addressee within three (3) business days of the email transmission.
(a) Notices to Discovered Intelligence:
Discovered Intelligence Inc.
2421 Huron Park Place
Mississauga, Ontario
L5C 4J9
contact@discoveredintelligence.ca
(b) Notices to Company:
The address or e-mail address set forth on the applicable Statement of Work.
13.5. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provision
13.6. Entire Agreement. This Agreement, including all Statements of Work, and any confidentiality or nondisclosure agreement entered into between the parties constitute the complete and exclusive understanding and agreement between the parties and supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. In the event of a conflict between the provisions of this Agreement and the provisions of a Statement of Work, the provisions of the this Agreement will govern and control. Any waiver, modification or amendment of any provision of this Agreement or any Statement of Work will be effective only if in writing and signed by duly authorized representatives of both parties. Any pre-printed terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement shall be disregarded unless otherwise expressly agreed to in a separate written amendment to this Agreement signed by both parties. Any quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions of this Agreement shall have no effect as amendments of, objections to or modification of this Agreement.
13.7. Severability. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
13.8. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment obligations) due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, shortages of or inability to obtain labour, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
Notwithstanding the foregoing, a delay in performance by Discovered Intelligence which exceeds ten (10) days shall be an event of default. In such a case, Company may, at its sole discretion, give notice of termination in accordance with the terms contained in Section 8 – Termination for Default.
13.9. Dispute Resolution. Any dispute arising between the Parties shall be promptly referred to the Parties’ respective authorized senior representatives for resolution, upon the receipt of a Notice of Dispute by either Party. In the event the senior representatives fail to resolve the dispute within five (5) business days then the dispute may be submitted to arbitration. Discovered Intelligence shall continue to provide the Services pending resolution of the dispute. Arbitration shall be held in Toronto, Ontario and shall be conducted in accordance with the Arbitration’s Act (Ontario). The following matters shall be excluded from arbitration: a decision by either Party to terminate this Agreement pursuant to Section 8; any lawsuits involving third parties; or intellectual property claims, whether initiated by third parties or the Parties to this Agreement.
