This master services agreement (the “Agreement”) is between TURNIUM TECHNOLOGY GROUP, INC., a British Columbia company having an address of 1127 W15th St, North Vancouver, BC, V7P 1M7 (“Turnium”), and CUSTOMER (the “Licensee”).
Turnium is in the business of providing computer network solutions;
The Licensee wishes to purchase a licence to use the computer network solutions for internal business purposes in (the “Region”);
Turnium is the owner of the Turnium Product and the Turnium Services (as such terms are defined herein); and
Turnium wishes to provide to the Licensee the Turnium Product and the Turnium Services for the purposes of the Licensee or its Authorized Users (as defined herein) use in accordance with the terms of this Agreement.
NOW THEREFORE in consideration of the mutual promises and agreements set forth below, and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by the parties), the parties agree as follows:
1. THE TURNIUM PRODUCTS
1.1 Grant of License. Pursuant to the terms of this Agreement, Turnium hereby grants to the Licensee and its Authorized Users a non-exclusive, non-transferable license within the Region and during the term of this Agreement to use the Turnium Product for its internal business operations, and subject to the provisions of the Documentation and the End User License Agreement. The Licensee agrees to be bound by the terms and conditions of the End User Licence Agreement. The Licensee shall have no right to license, distribute or otherwise transfer the Turnium Products other than those rights specifically granted hereunder.
1.2 Restrictions. Licensee shall not itself, or through any affiliate, agent or third party: (a) sell, lease, license or sublicense the Turnium Product; (b) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the Turnium Product, in whole or in part, except to the extent such restriction is prohibited by applicable law; (c) modify or create derivative works from the Turnium Product; (d) modify, remove or obscure any copyright or other proprietary notices contained on the Turnium Products or in the Turnium Products program code; or (e) use the Turnium Product for any other purpose without the prior written approval of Turnium.
1.3 Ownership. Subject only to the limited rights and licenses expressly granted to the Licensee in this Agreement, Turnium shall retain and own all right, title, and interest in and to the Turnium Products, and each copy thereof, and all Intellectual Property Rights with respect thereto. Turnium retains all rights not expressly granted to the Licensee hereunder. The Licensee shall have no rights with respect to any source code forming part of the Turnium Products.
2. The Turnium Services
2.1 Turnium Services. Subject to the terms and conditions in this Agreement, the Licensee hereby agrees to retain Turnium to perform the Turnium Services and Turnium hereby agrees to accept such engagement with the Licensee, for the consideration set forth in each Service Schedule. This Agreement sets forth the terms and conditions applicable to the Turnium Services to be performed by Turnium pursuant to each Service Schedule.
2.2 Customer Support. Turnium shall be responsible for providing customer support as outlined in the Service Schedule. If complications arise due to the Licensee’s actions, then Turnium may elect to charge the Licensee for problem resolution at the rates quoted in the applicable Service Schedule.
3. Service Schedules
3.1 Scope and Use. The parties shall enter into a service schedule, substantially in the form attached hereto as Schedule A, in respect of the provision of the Turnium Product and the Turnium Services to the Licensee (each, a “Service Schedule”). Each Service Schedule will constitute a separate agreement which incorporates the terms and provisions of this Agreement. References to this Agreement will include any Service Schedules in effect at the relevant time.
4.1 Pricing. The price for the Turnium Product and the Turnium Services shall be as stated in each Service Schedule.
4.2 Expenses. Each party is responsible for its own expenses in relation to this Agreement and the delivery of services, unless otherwise set forth in this Agreement or the Service Schedules.
4.3 Payment. The Licensee will pay or cause to be paid to Turnium the prices as stated in each Service Schedule.
4.4 Invoicing. Turnium shall invoice the Licensee monthly in advance, commencing at the start of the billing cycle. Unless otherwise set forth in a Service Schedule, payment for the Turnium Product and Turnium Services will be due within thirty (30) days of receipt by the Licensee of the corresponding invoice. Applicable taxes, including Goods and Services Tax, will be paid by the Licensee net of any fee for product and services. Accounts not paid within 30 days after receipt of the applicable invoice will accrue interest at the rate of 2% per month (an effective annual rate of 26.824% per year), from the date the Licensee received the invoice until payment in full is received by Turnium.
4.5 Start of Billing Cycle. The billing period shall commence immediately upon delivery of the Device to the Licensee, regardless of whether the Licensee has put the Device into service or not;
4.6 Fixed Payment Schedule. The Parties accept and acknowledge that the Service Schedule will set a fixed term and fixed price for delivery of the Turnium Product and Turnium Services to the Licensee.
4.7 Compensation upon Termination. In the event of the early termination of any Service Schedule, or any portion of any Service Schedule, by the Licensee, a lump sum payment of 50% of the total value of Turnium Product and Turnium Services remaining to be delivered under that Service Schedule will immediately be due to Turnium.
4.8 Renewal of Service Schedule. There shall be no automatic renewal of Service Schedules at the end of the Service Schedule Term. Renewals of Service Schedules shall be at the then current rates.
4.9 Suspension of Services. Despite any other provision of this Agreement or any Service Schedule, Turnium reserves the right to suspend the provision of the Turnium Products or the Turnium Services to be performed on a future date as contemplated under any Service Schedule in the event that Turnium does not receive payment in timely manner from the Licensee in accordance with the applicable terms of any Service Schedule, and any such suspension of the Turnium Product or Turnium Services will in no way give rise to any right of termination by the Licensee nor any claim by the Licensee for breach of the obligations of Turnium under this Agreement or any Service Schedule.
4.10 Creditworthiness and References. The Licensee consents and agrees that Turnium has the right to review the Licensee’s credit rating from time to time, and request of the Licensee valid trade references, and consents to the receipt and provision of account information from and to credit grantors, credit bureau and suppliers of services. Turnium reserves the right to require the Licensee to provide a deposit in an amount not to exceed three (3) months recurring monthly charges for the Turnium Product and Turnium Services set out in any of the Service Schedules, prior to the installation of a Turnium Product and Turnium Service, at the sole discretion of Turnium.
5. CONTRACT ADMINISTRATION
5.1 Authorizations. The signature or initials of the Principal Contacts on Service Schedules or changes or amendments to Service Schedules will be binding on each respective party.
5.2 Replacement of Principal Contact. If either party decides at any time to replace the person serving as its Principal Contact, it may do so by written notice to the other party.
5.3 Reliance on Information. The Licensee acknowledges that Turnium will, in the normal course of providing the Turnium Product and Turnium Services, be relying upon the completeness and accuracy of information to be provided by the Licensee, and the responsibility for ensuring such completeness and accuracy will remain with the Licensee.
6. MARKETING AND SALES SUPPORT
6.1 Website. The Licensee will be permitted to use the name and logo of Turnium on its website. Turnium will be permitted to use the name and logo of the Licensee on its website and to state on its website and otherwise disclose to potential customers of Turnium that the Licensee is or was a Licensee of Turnium.
6.2 Publicity. The parties agree they will not issue any formal press releases, business cases, case studies, white papers and the like that include the either party’s branding, imaging, logos, and / or endorsement without written consent of the other party.
The Licensee warrants that it will comply in all respects with the export and re-export restrictions set forth in the export license (if necessary) for every item shipped to the Licensee and will otherwise comply with applicable Canadian, United States or foreign laws and regulations in effect from time to time.
8.1 Representation. At no time shall the Licensee represent themselves as anything more than a Licensee of Turnium; and the Licensee shall never claim to make any such representation to its customers or any other third party. The Licensee shall not misrepresent Turnium, the Turnium Product, Turnium Services, or the capabilities of Turnium. Any misrepresentations by the Licensee shall be considered a breach of this Agreement and subject to termination conditions contained herein.
9. TERM AND TERMINATION
9.1 Term. This Agreement becomes effective in accordance with section 18.11 and shall remain in effect perpetually unless otherwise terminated as provided herein; provided, however, that this Agreement will continue to remain in effect with respect to any Service Schedule entered into under this Agreement until such Service Schedule is itself terminated or performance thereunder is completed.
9.2 Term of Service Schedule. Unless otherwise stated in the applicable Service Schedule, the term of the Service Schedule will last until performance thereunder is completed (the “Service Schedule Term”). The Service Schedule Term commences on the date the Service Schedule is signed by both parties (the “Service Schedule Effective Date”), unless otherwise stated in the applicable Service Schedule.
9.3 Termination by Licensee. The Licensee may, at its sole option and for its own convenience, terminate any or all Service Schedules in effect or this Agreement upon not less than 30 days’ written notice to Turnium. In the event of such early termination of a Service Schedule by the Licensee, a lump sum payment of 50% of the total value of Turnium Product and Turnium Services remaining to be delivered under the Service Schedules shall be immediately be due to Turnium. Turnium will inform the Licensee of the total value of Turnium Product and Turnium Services remaining to be delivered under the Service Schedules.
9.4 Partial Termination by Licensee. The Licensee may terminate certain Turnium Product or Turnium Services under an applicable Service Schedule at one or more locations without terminating the entire Service Schedule or this Agreement. In the event of such early termination of a portion of the Service Schedule by the Licensee, a lump sum payment of 50% of the total value of those terminated Turnium Product and Turnium Services remaining to be delivered under the Service Schedules will immediately be due to Turnium and will be reflected on the next invoice provided to the Licensee.
9.5 Termination by Turnium. Turnium may immediately terminate this Agreement and all associated Service Schedules for any Material Breach. Without limiting the foregoing, Turnium may, at its sole discretion, provide the Licensee with notice of such Material Breach, and offer a cure period during which time the Licensee may cure such Material Breach without termination.
9.6 Termination for Convenience by Turnium. Turnium may terminate this Agreement upon not less than 90 days’ written notice to the Licensee, provided, however, this Agreement will continue to remain in effect with respect to any Service Schedule already issued hereunder until such Service Schedule is itself terminated or performance thereunder is completed.
9.7 Termination on Infringement Action. Turnium may terminate this Agreement and any Service Schedule if Turnium, acting reasonably, is not able to resolve claims, actions, or demands alleging that the Turnium Product, or any part thereof, infringes or misappropriates any patent, trademark, copyright, or trade secret right of any third party, in accordance with section 14.2.
9.8 Termination on Insolvency. Either party may terminate this Agreement and all associated Service Schedules immediately upon notice in writing to the other party if such other party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or is unable to pay its debts as they come due.
9.9 Survival. Despite any termination of this Agreement or a Service Schedule, the provisions of this Agreement or any Service Schedule that by their nature are intended to survive such termination will remain in effect. Furthermore, this Agreement will continue to remain in effect with respect to any Service Schedule already issued hereunder until such Service Schedule is itself terminated or performance thereunder is completed.
9.10 Effects of Termination. Upon termination of the Service Schedule or this Agreement:
(a) Turnium shall immediately cease to deliver the Turnium Services;
(b) Turnium shall notify the Licensee of the termination of Turnium Services;
(c) the Licensee shall return, or cause to be returned, all Turnium Product at their earliest convenience, but in any event, not less than thirty (30) days following the termination of the Service Schedule or this Agreement;
(d) In the event of failure by the Licensee to return, or cause to be returned, Turnium Product within these 30 days, a lump sum payment of 450.00 per Device will immediately be due to Turnium and will be reflected on the next invoice provided to the Licensee (the “Device Fee”);
(e) Upon payment of the Device Fee, the Licensee shall no longer be required to return the Device to Turnium; and
(f) Section 9.10(c) and 9.10(d) shall not apply to Devices otherwise purchased by the Licensee.
10.Relationship, Authority, and Non-Exclusivity
10.1 Relationship of the Parties. Turnium and the Licensee acknowledge that none of the provisions hereof shall be construed to create a partnership association, employer-employee relationship or a joint venture between the parties or the parties’ personnel, and that this Agreement is and will be construed exclusively as a contract for provisioning of product and services.
10.2 Authority. The parties and their personnel do not have any right, power or authority to create any obligation or duty, express or implicit, on behalf of the other party, and each party agrees that neither such party nor its personnel shall represent itself or themselves as having such right, power or authority.
10.3 Non-Exclusive. The provision of products and engagement of Turnium under this Agreement and under any Service Schedule is non-exclusive and Turnium shall be permitted to provide for any third party, including a competitor of the Licensee, products and services that are the same or similar to the Turnium Product or Turnium Services to be provided to the Licensee hereunder.
11. Representations and Warranties
11.1 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that:
(a) it is incorporated and validly existing as a corporation under the laws of the jurisdiction of its incorporation;
(b) it has the power and capacity to enter into and perform its obligations and grant the rights, licences and authorizations it grants and is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action of such party; and
(d) when executed and delivered by the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2 Turnium warranty. Subject to the limitations set forth in this Agreement, Turnium warrants that the Turnium Product will perform substantially in accordance with the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement, for the duration of the term. Turnium’ sole obligation under this warranty is to use reasonable efforts to correct or to replace any non-conforming component of the Turnium Product or, in Turnium’ sole discretion, to require return of the Turnium Product and refund as per section 13.2. The foregoing states the entire liability of Turnium and the exclusive remedy of Licensee with respect to breach of the warranty provided in this Section 11.2. The warranty in this Section 11.2 is made to and for the benefit of Licensee only and is non-transferable and non-assignable.
11.3 Exception. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 11.2 does not apply to problems arising out of or relating to:
(a) Turnium Product that is modified or damaged by the Licensee or its Authorized Users;
(b) any operation or use of, or other activity relating to, the Turnium Product other than as specified in the Documentation, including any incorporation in the Turnium Product of, or combination, operation or use of the Turnium Product in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for the Licensee’s use in the Documentation, unless otherwise expressly permitted by Turnium in writing;
(c) the Licensee’s or any third party’s negligence, abuse, misapplication or misuse of the Turnium Product, including any use of the Turnium Product other than as specified in the Documentation or expressly authorized by Turnium in writing;
(d) the Licensees failure to promptly install all Updates that Turnium has previously made available to the Licensee;
(e) the operation of, or access to, the Licensee’s or a third party’s system or network;
(f) any open-source components, beta software, software that Turnium makes available for testing or demonstration purposes, temporary software modules or software for which Turnium does not receive a licence fee;
(g) the Licensee’s material breach of any provision of this Agreement; or
(h) any other circumstances or causes outside of the reasonable control of Turnium (including abnormal physical or electrical stress).
11.4 Compliance with Laws. Each party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.
12.1 Disclosure of Confidential Information. Confidential Information exchanged between the Licensee and Turnium may be disclosed orally, in writing, or through transiting over Turnium’s service. Each party shall hold the other’s Confidential Information in confidence, use it only to further the purposes of this Agreement. Each party shall disseminate the other’s Confidential Information only to those of its employees, contractors or consultants who have a need to know such Confidential Information for the furtherance of this Agreement, and who have executed appropriate agreements requiring them to maintain the confidentiality of such Confidential Information. The foregoing shall not restrict any disclosure by either party required by law or government authority; provided that it gives the other party reasonable notice and opportunity to seek a protective order or other method of limiting the scope of such disclosure.
12.2 Exceptions. The restrictions set forth in this Agreement with respect to the non-disclosure of the Confidential Information will not apply to:
(a) any portion of the Confidential Information in the public domain at the time of the receipt thereof;
(b) any portion of the Confidential Information that, after the recipient’s receipt thereof, becomes a part of the public domain through no act or omission of the recipient;
(c) any portion of the Confidential Information that the recipient can show was lawfully within its possession prior to its receipt thereof from the party disclosing the Confidential Information;
(d) any portion of the Confidential Information received in good faith by a recipient from a third party, who was lawfully in possession of, and had the right to disclose the same;
(e) any portion of the Confidential Information that the parties agree in writing to release from the terms of this Agreement; or
(f) any portion of the Confidential information which a recipient can show was developed or acquired independently by it or its respective agents, representatives, or Turnium’s without reference to the Confidential Information.
12.3 Confidentiality of Agreement. The Licensee agrees that the terms and conditions of this Agreement will be treated as Confidential Information, provided however, that the obligations of confidentiality set forth above in this Agreement will not apply to any provision of this Agreement inherently disclosed by Turnium’s provision of the Turnium Product or Turnium Services hereunder.
13.1 Disclaimer of Warranties. Except as provided in section 11, the Turnium Product and Turnium Services provided and deliveries made under each Service Schedule are provided “AS IS,” without warranty of any kind whatsoever. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TURNIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE TURNIUM PRODUCT OR TURNIUM SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, REGARDING THE SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF TURNIUM WHATSOEVER.
13.2 LIMITATION OF LIABILITY. EXCEPT IN RESPECT OF TURNIUM’S INDEMNITY OBLIGATIONS UNDER SECTION 14, IN NO EVENT WILL TURNIUM’S AGGREGATE LIABILITY TO THE LICENSEE (INCLUDING LIABILITY TO PERSON OR PERSONS WHOSE CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY THE LICENSEE), WITH RESPECT TO ANY AND ALL CLAIMS (INCLUDING BREACH OF CONDITION OR FUNDAMENTAL TERM OR FUNDAMENTAL BREACH) AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE TURNIUM PRODUCT OR TURNIUM SERVICES, OR USE OF OR INABILITY TO USE THE TURNIUM SERVICES (OTHER THAN AS PROVIDED IN THE APPROPRIATE SERVICE SCHEDULE AS “UPTIME”) IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF ANY DUTY) OR UNDER ANY OTHER LEGAL THEORY OTHERWISE EXCEED THE AMOUNT PAID BY LICENSEE TO TURNIUM IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT CAUSING SUCH LIABILITY. TO EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, TURNIUM’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW.
13.3 EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, LOST REVENUE, PROFIT OR DATA, OR INTERRUPTION OF BUSINESS, OR TEMPORARY OR PERMANENT LOSS OF USE OF THE TURNIUM PRODUCT, OR LOSS OR CORRUPTION OF DATA, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER TORT, CONTRACT, INDEMNITY OR OTHERWISE) ARISING OUT OF THE TURNIUM PRODUCT OR TURNIUM SERVICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
13.4 Liability for Licensee content. The parties acknowledge and agree that Turnium does not monitor the Confidential Information processed through the Turnium Product and Turnium Services. The parties agree and acknowledge that Turnium minimizes access to the Confidential Information by Turnium, its employees, its contractors, its partners, and its agents except where necessary or incidental to the provision of the Turnium Services in the Service Schedules. The parties agree and acknowledge that Turnium relies upon the Licensee to abide by and enforce with its Authorized Users, Turnium’s Acceptable Use Policy. Should the Licensee or one of its Authorized Users breach the Acceptable Use Policy and Turnium becomes aware of such breach, Turnium may in its sole discretion immediately and without notice terminate the applicable Service Schedule and this Agreement as provided herein or take such other actions as may be available to it in order to protect itself from liability, which may include legal action or seeking of injunctive relief. At all time during the term of this agreement the Licensee shall indemnify and hold harmless Turnium from any and all claims which may be made against Turnium by any party in relation to the Confidential Information.
14.1 Indemnity. Each party shall indemnify and hold harmless the other party and that other party’s directors, officers, employees, contractors and agents, from any and all damages, losses, costs or liabilities (including reasonable legal fees and the cost of enforcing this Agreement) arising out of or resulting from any breach of this Agreement by such party or such party’s negligence or intentional misconduct.
14.2 Turnium shall indemnify and hold the Licensee harmless from and against any claims, actions, or demands alleging that the Turnium Product, or any part thereof, infringes or misappropriates any patent, trademark, copyright, or trade secret right of any third party; provided that the Licensee promptly notifies Turnium of any such claim, allows Turnium to control the defense and provides reasonable information and assistance to Turnium (at Turnium’s expense) in the defense of the claim. The Licensee shall permit Turnium to replace or modify any affected Turnium Product or part thereof to avoid infringement, or to procure for the Licensee the right to continue to use and remarket such Turnium Product. If neither of such alternatives is reasonably possible, Turnium may require the Licensee to return the affected Turnium Product to Turnium and terminate any obligation to supply such Turnium Product to the Licensee or its Authorized Users under this Agreement and any Service Schedules, and Turnium’s sole liability in regard to such return shall be to refund an amount, the maximum of which is the license fees paid to Turnium for Turnium Product or Turnium Services which were not delivered as a result of such infringement, on the invoice immediately preceding such claim. Turnium shall have no obligation with respect to claims, actions, or demands to the extent that they are based upon (i) the combination of the Turnium Product with any items not supplied by Turnium, including those supplied by the Licensee, (ii) any failure by the Licensee to implement modifications or replacements distributed by Turnium to address any alleged infringement, (iii) any Intellectual Property Right in which the Licensee or any affiliate of the Licensee has a proprietary interest or (iv) any infringement caused by the Licensee or its Authorized User. This Section states the entire liability of Turnium with respect to indemnification or liability for infringement of patents, copyrights or other proprietary rights by the Turnium Product or any part thereof or by its use or operation.
15. Dispute Resolution
15.1 Negotiation. In the event of any dispute, claim, question or difference arising out of or relating to this Agreement or any breach hereof (a “Dispute”), within ten (10) calendar days of one party providing written notice to the other party that a Dispute exists, the parties shall use their best endeavours to settle such Dispute. To this effect, they shall consult and negotiate with each other, in good faith and understanding of their mutual interests, to reach a just and equitable solution satisfactory to the parties.
15.2 Mediation. If the parties are unable to resolve the Dispute within twenty (20) calendar days of the written notice under Section 15.1, then such Dispute shall be submitted to mediation. The parties shall within ten (10) calendar days of the issuance of a notice to mediate issued by a party, agree on a single mediator. The mediation session shall be held within twenty (20) calendar days thereafter and all costs of the mediator shall be equally shared between the parties. If the parties do not agree on a mediator within the ten (10) day period noted above, the matter in dispute will be submitted to arbitration pursuant to Section 15.3.
15.3 Arbitration. In the event that a dispute, controversy or claim cannot be resolved by the parties’ designates within thirty (30) days of such dispute being referred to them and the parties do not agree to proceed to mediation, or are unable to resolve matters through a mediation process within thirty (30) days from the commencement of such mediation, or the parties fail to agree on a mediator within the ten (10) day period provided under Section 15.2, such dispute, controversy or claim shall be resolved by the exclusive remedy of arbitration in Vancouver, British Columbia.
15.4 The parties agree that any arbitration proceedings will be conducted pursuant to the ADR Institute of Canada Arbitration Rules (version effective 1 December 2016) (“ADR Rules”), subject to the following modifications:
(a) The Institute as defined in the ADR Rules will not administer the arbitration, nor is notice to the Institute necessary to commence the arbitration;
(b) The tribunal shall consist of one arbitrator (the “Arbitrator”) appointed by mutual agreement of the parties or, in the event the parties cannot agree on a single arbitrator, a tribunal made up of three arbitrators will be appointed, as set out in section 3.1.4 of the ADR Rules; and
(c) The Arbitrator shall be instructed that time is of the essence in proceeding with his or her or its determination of the Dispute and, in any event, the award of the Arbitrator must be rendered within thirty (30) calendar days of the day in which the submission of such Dispute to arbitration was made;
(d) The arbitration shall take place in or about Vancouver, British Columbia;
(e) The arbitration award shall be given in writing and shall be final and binding on the parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all matters related thereto; and
(f) Judgment upon the award rendered may be entered in any court having jurisdiction, or application may be made to such court for judicial recognition of the award or an order of enforcement thereof, as the case may be.
(g) The parties may agree to additional modifications to the ADR Rules, as may be reasonable for the nature of dispute, controversy or claim arising.
15.5 If a dispute goes to arbitration, the parties will each bear their own costs for participation in the arbitration and will equally share the costs of arbitration.
15.6 Application to Court. Notwithstanding any other provision hereof, any party may apply to any court of competent jurisdiction for temporary or interim relief by way of injunction, restraining order or other form of equitable relief in respect of any Dispute hereunder, but such Dispute shall thereafter be submitted to arbitration in accordance herewith. Such Dispute may be submitted to the jurisdiction of a court of competent authority thereafter to be finally determined in accordance with the rules and procedures of such court in the sole discretion of the Arbitrator.
16.1 In this Agreement: the words “include” or “including” when following any general term of statement are not to be interpreted as limiting the general term or statement to the specific items or matters set forth or to similar terms or matters but rather as permitting it to refer to all other items or matters that could reasonably fall within its broadest possible scope;
the conjunction “or” shall be understood in its inclusive sense (and/or);
unless otherwise specified, all references to money in this Agreement shall be to lawful currency of Canada, unless otherwise stated in the Service Schedule;
a reference to a statute includes every regulation made pursuant thereto, all amendments to the statute or to any such regulation in force from time to time and any statute or regulations that may be passed which have the effect of supplementing or superseding such statute or such regulations;
a reference to a time or date is to the local time or date in Vancouver, British Columbia, Canada, unless specifically indicated otherwise;
the words “herein”, “hereof”, “hereby” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection, paragraph, subparagraph or other subdivision, Service Schedule or schedule; and
the singular of any term includes the plural and vice versa and the use of any term is equally applicable to any gender and where applicable to a corporate entity.
17.1 In this Agreement:
“Authorized Users” means the Licensee, its employees, and third parties delivering information technology services to the Licensee.
“Acceptable Use Policy” means the acceptable use policy which can be found at https://turnium.com/acceptable-use-policy/.
“Claims” includes all claims, actions, causes of action (whether in contract or in tort or any other theory of recovery in law or in equity), suits, proceedings, complaints, contentions, liabilities and demands of any kind whatsoever, both in law and in equity, whether implied or express;
(a) “Confidential Information” means trade secrets and other information related to Turnium or the Licensee, including contact information and Customer Data in whatever form or media, in the possession of a party, which is not generally known to the public and has been specifically identified as confidential or proprietary, or its nature is such that it would generally be considered confidential, or which a party is obligated to treat as confidential or proprietary, and includes, without limitation, technical and business information of or regarding a party, and information regarding a party’s business operations, methods and practices, including market strategies and hourly rates for personnel and information regarding the financial, legal and corporate affairs of such party, and text, images, video, data, and other information related to the Licensee or its Authorized Users.
(b) “Device” means the individual Turnium hardware unit which contains the Turnium software;
(c) “Documentation” means in respect of the Turnium Product, the documentation and technical documentation, including release information, security information, interface documentation and training material provided to Licensee.
(d) “End User License Agreement” means the end user licence agreement associated with the Turnium Product attached as Schedule “B”, as amended from time to time, and available at https://turnium.com.
(e) “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including without limitation rights in any of the foregoing).
(f) “Material Breach” means:
(i) the Licensee’s breach of section 1.2;
(ii) failure by the Licensee to make a payment due under this Agreement or a Service Schedule;
(iii) damage to the Device as a result of the gross negligence or willful misconduct of the Licensee;
(iv) misrepresentation of the Turnium Services by the Licensee;
(v) breach of Turnium’s Acceptable Use Policy or End User Licence Agreement by the Licensee or any of the Licensee’s customers that has not been cured;
(g) “Turnium Product” means the Turnium software and Device(s) as listed in the Service Schedule, including (i) supporting or diagnostic programs necessary for the proper functioning, testing or support thereof, (ii) all Updates and Upgrades thereto and (iii) all related Documentation;
(h) “Turnium Services” means the services listed in a Service Schedule, to be performed by Turnium in connection with the provision of the Turnium Product, including without limitation the installation, maintenance, management, operation, support, and storage thereof as set forth in section 2.1;
(i) “Update” means changes to Turnium Product to correct errors or defects or to make Turnium Product conform to published specifications; and
(j) “Upgrade” means improvements, enhancements, additions or changes to Turnium Product which provide a new or enhanced capability, improves performance, replaces any portion thereof, or enables third party software products to operate with the Turnium Product.
18.1 Severability. The parties intend as follows:
(a) that if any provision of this Agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
(b that if an unenforceable provision is modified or disregarded in accordance with this section 18.1, then the rest of this Agreement will remain in effect as written; and
(c) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
18.2 Enurement. This Agreement enures to the benefit of and is binding upon the parties and their respective heirs, executors, administrators, successors and assigns.
(a) For a notice or other communication under this Agreement to be valid, it must be in writing and delivered (1) by hand, (2) by a national transportation company, with all fees prepaid, or (3) by registered or certified mail, return receipt requested and postage prepaid.
(b) Subject to section 18.3(d), a valid notice or other communication under this Agreement will be effective when received by the party to which it is addressed. It will be deemed to have been received as follows:
(i) if it is delivered by hand, delivered by a national transportation company, with all fees prepaid, or delivered by registered or certified mail, return receipt requested and postage prepaid, upon receipt as indicated by the date on the signed receipt; and
(ii) if the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, then upon that rejection, refusal, or inability to deliver.
(c) For a notice or other communication to a party under this Agreement to be valid, it must be addressed to the Principal Contact for that party as set forth in section 18.13, as may be amended in accordance with section 5.2.
(d) If a notice or other communication addressed to a party is received after 5:00 p.m. on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice will be deemed received at 9:00 a.m. on the next business day.
18.4 Assignment. Neither party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided that, in the event of a sale of all or substantially all of the assets of Turnium, no such written consent shall be required from the Licensee.
18.5 Entire Agreement. The parties agree that this Agreement is the complete and exclusive statement of their agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants and all other communications between the parties relating thereto.
18.6 Amendments. Amendments to this Agreement or any Service Schedule will be effective only if in writing and accompanied by dated signatures of authorized representatives of both parties and expressly referring to this Agreement or such Service Schedule. Replacement pages initialled and dated by authorized representatives of both parties will be sufficient for that purpose. Unless otherwise indicated, an amendment to this Agreement or any Service Schedule will be effective on the date signed by both parties. Amendments to a Service Schedule are deemed to amend and replace the existing Service Schedule.
18.7 Force Majeure. Neither party will be liable hereunder for failure to perform its obligations under this Agreement or any Service Schedule due to any event of force majeure including by act of God, act of public enemy, acts of governmental bodies or agencies foreign or domestic, sabotage, riot, act of terrorism, pandemic, extreme weather condition, fire, floods, typhoons, explosions or other catastrophes, epidemics or quarantine restrictions, labour unrest, or because of any other causes beyond the reasonable control of either of the parties; provided however, that, in order to be excused from delay or failure to perform, such party must provide prompt notice to the other party and act diligently to remedy the cause of such delay or failure.
18.8 Conflict. In the event of an inconsistency or conflict between this Agreement and a Service Schedule, the provisions of the Service Schedule will govern, but only to the extent of the inconsistency or conflict.
18.9 No Waiver. Neither party shall, by lapse of time or inaction, be deemed to waive any breach by the other party of this Agreement. No waiver shall be effective unless in writing and signed by the party against which enforcement of such waiver is sought. The waiver by either party of a particular breach of this Agreement by the other party shall not be a continuing waiver of such breach, or of other breaches of this Agreement.
18.10 Governing Law. The laws of the Province of British Columbia, and the federal laws of Canada applicable therein, without giving effect to its principles of conflicts of law, govern the interpretation and all adversarial proceedings arising out of this Agreement. The courts and tribunals of British Columbia shall have the exclusive jurisdiction to hear and determine all disputes.
18.11 Effectiveness Date. This Agreement will become effective when all parties have signed it (the “Effective Date”). The date of this Agreement will be the date this Agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature).
18.12 Counterpart. If the parties sign this Agreement in several counterparts, each will be deemed an original but all counterparts together will constitute one instrument.
Principal Contacts. The parties will designate and maintain principal contacts (each, a “Principal Contact”) for purposes of all work and business between them concerning this Agreement and all notices required or permitted hereunder.