1. Definitions. Aid IT Services includes, if applicable, its parent(s), subsidiaries, successors, shareholders, directors, officers, agents, representatives, employees, contractors, sub-contractors, assigns, affiliates, licensees and “we”. Client includes, if applicable, its parent(s), subsidiaries, successors, shareholders, directors, officers, agents, representatives, employees, contractors, sub-contractors, assigns, affiliates, licensees, Customer, Clients customer, you, your and any person authorizing Aid IT Services to access a computing device or application pursuant to this Agreement. Each of Aid IT Services and Client are a party to this Agreement and together are the parties. Agreement means this Agreement and includes the term herein, hereof, hereto and hereunder. Any reference, whether the singular or the masculine is used herein, same shall be deemed to include reference to the plural, feminine, body corporate or any entity as necessary. The term “including” is meant to mean including but not limited to, if not already stated. A breach or default of this Agreement is when one party does not meet their obligations of any representation, warranty, covenant or agreement of this Agreement. The term “employee” includes contractor, sub-contractor, agent, peddler, worker, staff, team member or affiliate. The Disclosing Party is the party disclosing any particular item of Confidential Information to the party which receives or otherwise obtains such information. The Receiving Party is the party who receives or otherwise obtains any particular item of Confidential Information. Fees refers to the form of Aid IT Services’ compensation. A Monthly Fee is a fee which is paid once a month for monthly services until the termination of an agreement. Working days or Business Days refers to any day other than a Saturday, Sunday or Statutory Holiday in the province of Alberta. Working Hours or Business Hours refers to Monday to Friday from 9am to 5pm. Product means any goods of a tangible or intangible nature purchased on behalf of Client including but not limited to website: software, programs, applications, services, subscriptions, SaaS and other similar forms of website technology products. Website includes domain, network and any connected or related IP. The term “Quote” includes proposal, statement of work, work order or other similar kind of document but not the estimate of time indicated above. An approved Quote is that which is provided by Aid IT Services and approved by Client.
I. Aid IT Services agrees that Services will be provided in compliance with all applicable laws, rules and regulations, and with the standard of care customary within the industry under which the Services are being provided. Client will not require Aid IT Services to perform any assignments or tasks in a manner that would violate any applicable law or regulation. Client will cooperate with Aid IT Services in taking any actions that Aid IT Services reasonably believes are necessary to comply with the regulatory obligations that have been undertaken by Aid IT Services on behalf of Client.
II. The Services to be performed hereunder shall be performed within the scope of the Services herein or any attachment or schedule hereto. Services may be specified in Quotes to be approved by Client, as required by Aid IT Services or Client. To the extent the terms referred to in a Quote differ from what is set forth in this Agreement, the specific terms of the Quote shall prevail but only to the extent of any conflict between the approved Quote and this Agreement, any terms of this Agreement which do not conflict with the terms of an approved Quote shall prevail. Notwithstanding anything contained herein to the contrary, Aid IT Services reserves the right to decline providing or performing any Services for any reason. Aid IT Services and Client each reserve the right to require an approved Quote or additional documentation to be signed prior to the performance of Services. Each party may do so by notifying the other party. If the Client requests Services and fails to require a Quote before Services commence, the Client may no longer require a Quote and the Services provided shall be subject to this Agreement. If there is any question as to if a particular task or requested service falls within the scope of the Services hereunder, such determination shall be at the sole discretion of Aid IT Services.
III. Any material changes in the details of Services (as may be set forth in one or more Quotes) to be performed under this Agreement including changes in an agreed starting date or suspension of the Services by Client, may require changes including changes to the amount of the Quote and/or timelines. Any material change (“Program Change Request”) shall require a revised Quote approved by Client or a written amendment signed by both parties. A Program Change Request will become effective when an amendment is executed by both parties or when a revised Quote is provided by Aid IT Services and approved by Client, and Aid IT Services will be given a reasonable period within which to implement the changes. Both parties agree to act in good faith and promptly when considering a Program Change Request submitted by the other party. Aid IT Services reserves the right to postpone effecting material changes in Services or Additional until the parties agree to and execute the corresponding Program Change Request as described in herein.
IV. Client understands and agrees that prior to allowing Aid IT Services to access a website, client portal, computing device, mobile device, program or application, pursuant to this Agreement, it is Clients responsibility to backup all data which is located on website, client portal, computing device, mobile device, program or application to another location. Client understands and agrees that Aid IT Services shall not be responsible under any circumstance in the event Clients data is lost or is found to be corrupt during our Services. Aid IT Services reserves the right, at any time, to refrain from providing any Services ordered or otherwise approved, for any reason, subject only to Aid IT Services’ commercially reasonable effort to do no harm. If payment has been made, Aid IT Services will refund the Clients payment, wholly or in part, and shall not be responsible for any loss to Client. Client agrees to provide Aid IT Services with the name(s) of the person or persons, who are approved to direct the Services, authorize access and answer questions. Fees charged are for expertise, advice, estimations, projections, tests, the use of tools, interpreting information, time spent, not results. Someone of 18 years of age or more must be present for on-site Services to be provided. Aid IT Services reserves the right to refrain from providing Services under such circumstance, and to charge a fee. Aid IT Services assumes any computer system, login information and software keys provided by Client are licensed, legal and legitimate. All hardware and software provided by Client are assumed to be free from defect and viruses unless Client notifies Aid IT Services of such defect or virus. Any damage arising from a product defect is Clients responsibility and Client will not initiate a claim or claims against Aid IT Services including any proceedings for damages relating to product defects. Aid IT Services makes no representation or warranty with respect to results or outcomes relating to the Services and for certainty, without in any way limiting the foregoing, Aid IT Services does not guarantee (1) any specific result including complete, full or guaranteed security, (2) that Services will eliminate or reduce risk to zero from a viruses, spyware, ransomware, malwares, hackers and/or other online or offline threats, (3) any specific ranking on any search engine, (4) any specific amount of designated domain or website up-time.
V. Client agrees that Aid IT Services may use the services of its affiliates, contractors’ and consultants to fulfill Aid IT Services’ obligations under this Agreement. Any affiliate, contractor or consultant so used shall be subject to all of the terms and conditions applicable to Aid IT Services under this Agreement and entitled to all rights and protections afforded to Aid IT Services under this Agreement. Aid IT Services agrees that Clients affiliates may interact with Aid IT Services (and its affiliates, contractors and consultants) subject to this Agreement. In such event, Clients affiliates shall be bound by all the terms and conditions of this Agreement and entitled to all rights and protections afforded to Client under this Agreement.
VI. Aid IT Services acknowledges and agrees that it may be providing Services to Clients customer or franchisee. In such circumstance, for certainty, Aid IT Services will invoice Client and Client will invoice Clients customer. Client acknowledges and agrees that Aid IT Services may be providing Services to Client or Clients customer by way of a sub-contractor. In such circumstance, for certainty, Aid IT Services’ sub-contractor will invoice Aid IT Services and Aid IT Services will invoice Client. Other than as described in this Agreement or any approved Quote, each party is responsible for their own costs.
3. Products. Client understands and agrees that any products delivered to Client or procured for Client in any way by Aid IT Services, pursuant to this Agreement, regardless whether or not those products take the form of hardware or software, are products which were not the manufactured or developed products of Aid IT Services but rather those of the manufacturer or developer and Aid IT Services shall assume no responsibility for their defect, delay, unintended consequence or loss of income related to it. Procured products are products which are pre-authorized by Client and which must be paid for in advance to Aid IT Services or to the distributor of the products. Aid IT Services may recommend or suggest products from time to time, each of these proposed products is purchased at Client’s risk and therefore it is Client’s responsibility to research the products before giving authorization to Aid IT Services to purchase the products. Title or ownership to any Products shall not pass to Client until the Product has been paid for. Aid IT Services may be ordering your products from an affiliated distributor who may be compensating Aid IT Services in the form of commissions or royalties. Client understands and agrees to Aid IT Services being compensated by a distributor in this respect and agrees that any such payments received by Aid IT Services will not reduce the agreed upon amount of fees to be received by Aid IT Services from Client in connection with the Services described herein.
4. Billing Terms.
I. The Client agrees to pay the Fees described herein or any approved Quote, for Services rendered pursuant to this Agreement. Client will pay invoices without any offset or deduction. This is not a profit-sharing agreement and each party has no obligation to share profits with the other party.
II. Time shall be counted or billed to Client in no less than 15-minute increments when Services are provided remotely or in no less than 30-minute increments when Services are provided onsite. Any Services provided remotely have a 30-minute minimum charge and any Services provided onsite have a 60-minute minimum charge. If an approved Quote does not have a payment schedule, Aid IT Services may invoice Client according to the terms and conditions of this Agreement, for any outstanding amounts due pursuant to this Agreement or any approved Quote.
III. Partial hours to be invoiced proportionately. For example, FIFTEEN (15) minutes of Services for ONE (1) Technician or SME will be billed to Client by taking the fraction of any partial hour of Services, in this example (15/60) and multiplying it by the applicable hourly Services rate described elsewhere in this Agreement.
IV. Fees are exclusive of taxes, levies, duties and other governmental charges. Where applicable, Aid IT Services will invoice the customer for such.
V. It is the Clients responsibility to notify Aid IT Services of any disputed invoices within three (3) days of receipt of Aid IT Services’ invoice. If Client does not dispute an invoice within three (3) days of receipt of Aid IT Services’ invoice, Client hereby waives Clients opportunity to dispute the invoice.
VI. Client understands and acknowledges that Services which are requested and provided without an approved Quote are to be invoiced to Client subject to the terms and conditions of this Agreement. If an approved Quote does not have a payment schedule or additional payment terms, the payment terms contained herein shall apply.
VII. Aid IT Services will invoice Client for reasonable parking charges incurred and reasonable travel time as Services, unless Services are being provided via Quote, except if the Quote contains such parking and travel charges.
5. Payment Terms.
i. Fees which are billable under this Agreement are due and payable when the Services are complete or any portion thereof or within three (3) days of any payment schedule, milestone or drawdown stated in any approved Quote on Aid IT Services’ standard form unless otherwise stated herein. When Services are provided at the Clients location, payment shall be made prior to the Technician departure from the Clients location. When Services are provided remotely, Client shall pay upon Technician completing the Services or any portion thereof.
ii. Products or equipment procured by Aid IT Services on behalf of Client shall be paid for by Client prior to the delivery of such products or equipment.
iii. Unless otherwise stated in this Agreement, any Fees due to Aid IT Services pursuant to this Agreement for Services provided at the Clients location shall be paid using Clients credit card, email transfer or cash and any Fees due to Aid IT Services pursuant to this Agreement for Services provided remotely shall be paid using credit card or email transfer.
iv. If Client disputes one or more Fees, Client shall notify Aid IT Services of the disputed Fee or Fees and pay to Aid IT Services the undisputed Fees, and the parties shall negotiate to resolve the dispute in good faith within five (5) working days of Client notifying Aid IT Services of a disputed Fee, but always using this Agreement as the basis for a resolution.
6. Ownership and Inventions. All data and information related to Services including without limitation program images and text viewable on the Internet, any HTML code relating thereto, or any program code created at the request of Client which is generated or derived by Aid IT Services as the result of Services performed under this Agreement shall be the exclusive property of Client and all title and interest therein shall vest in Client and shall be deemed to be a “work made for hire” and made in the course of the Services rendered hereunder. Aid IT Services agrees to assign to Client any inventions which relate to the Services. All such materials shall belong exclusively to Client with Client having the right to obtain and to hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Aid IT Services agrees to give Client and any person designated by Client, any reasonable assistance required to perfect the rights defined in this Section. Notwithstanding the foregoing, Client acknowledges that Aid IT Services may possess certain inventions, processes, know-how, trade secrets, improvements, other intellectual property and other assets, including analytical methods, procedures and techniques, procedure manuals, personnel data, financial information, computer technical expertise and software, which have been independently developed by Aid IT Services and which relate to its business or operations, as shown by contemporaneous written evidence (collectively “Aid IT Services ’s Property”). Aid IT Services and Client agree that any of Aid IT Services ’s property or improvements thereto which are used, improved, modified or developed by Aid IT Services under or during the term of this Agreement are the property of Aid IT Services. Client and Aid IT Services recognize that site related programs may contain code created during the development of such site related program. Notwithstanding any other provisions of this Agreement Aid IT Services shall retain a royalty-free licence to utilize any other code developed by it hereunder.
7. Warranty. The Services to be performed hereunder are professional services and advice. Aid IT Services does not warrant in any form the results or achievements of the Services provided. Aid IT Services warrants that the Services will be performed under this Agreement in a professional manner using generally accepted industry standards and practices.
8. THE WARRANTY ABOVE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, IMPLIED, EXPRESS, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, THE PERFORMANCE OF MATERIALS OR PROCESSES DEVELOPED OR PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. Aid IT Services SHALL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS, DEVELOPERS, OR CONSULTANTS IDENTIFIED OR REFERRED TO THE CLIENT BY Aid IT Services DURING ANY ASPECT OF THIS AGREEMENT UNDER ANY WORK ORDER OR OTHERWISE. THE CLIENT’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF SERVICES, OR IF SUCH REPERFORMANCE IS NOT POSSIBLE, REFUND OF AMOUNTS PAID HEREUNDER FOR SUCH NONADHERING SERVICES.
9. Aid IT Services Representations and Warranties.
i. Aid IT Services represents and warrants that each has the full right and authority to enter into this agreement; and
ii. Aid IT Services, represents and warrants that it is incorporated under the laws of Alberta and a majority of the directors and a majority of the ownership of each are held by a Canadian Citizen(s); and
iii. All of the Services to be performed by Aid IT Services hereunder will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; and
iv. Aid IT Services or Aid IT Services’ sub-contractor is the owner of or otherwise has the right to use and distribute all materials and methodologies used in connection with providing the Services.
10. Client Representations and Warranties.
i. Client represents and warrants that each has the full right and authority to enter into this agreement; and
ii. Client, if incorporated, represents and warrants that it is incorporated under the laws of its jurisdiction; and
iii. the use, of any material, software of hardware supplied by Client hereunder shall not infringe any copyright, trademark, trade secret or other third-party proprietary right; and
iv. there is no impediment to Client’s performance of its obligations hereunder.
11. Confidentiality, Non-Disclosure and Non-Solicitation.
i. It is understood that during this Agreement both parties and their employees may be exposed to data and information which is confidential and proprietary to the other party. All such data and information (hereinafter “Confidential Information”), whether written or verbal, tangible or intangible, made available, disclosed, or otherwise made known to the other party and its employees under this Agreement shall be considered confidential and the sole property of the Disclosing Party. The Confidential Information shall be used by the Receiving Party and its employees only for purposes of performing the Receiving Party’s obligations hereunder. Each party agrees that it will not reveal, publish or otherwise disclose the Confidential Information of the other party to any third party, or use the Confidential Information for its own benefit, without the prior written consent of the Disclosing Party. Each party agrees that it will not disclose the terms of this Agreement to any third party without the written consent of the other party. These obligations of confidentiality and nondisclosure shall remain in effect for a period of ten (10) years after the termination of this Agreement.
ii. The foregoing obligations shall not apply to the extent the Confidential Information: (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (b) becomes available to the Receiving Party on a non-confidential basis from a source which is not prohibited from disclosing such information; (c) was developed independently of any disclosure by the Disclosing Party or was known to the Receiving Party prior to its receipt from the Disclosing Party, as shown by contemporaneous written evidence; or (d) is required by law or regulation to be disclosed.
iii. Client acknowledges that during the term of this Agreement and for a period of one (1) year following termination of such Agreement, Client shall not, without the express written consent of Aid IT Services, (a) directly or indirectly, solicit, recruit or induce (nor assist anyone in soliciting, recruiting or inducing) any employee of Aid IT Services to terminate his or her relationship with Aid IT Services , (b) induce (nor assist anyone else in inducing) any supplier, vendor, consultant or independent contractor of Aid IT Services to terminate or negatively alter his, her or its relationship with Aid IT Services , or (c) directly or indirectly solicit or induce (nor assist anyone else in soliciting or inducing) any client or customer of Aid IT Services whose information was accessible to Client pursuant to this Agreement. Should Client desire to, directly or indirectly, employ or contract with any of Aid IT Services’ employees, contractors, suppliers, vendors, consultants, independent contractors, clients or customers described above, Client must obtain written approval from Aid IT Services and make payment of a replacement fee in the amount of ten thousand dollars ($10,000.00). Should Client fail to obtain the written approval, Client shall be in breach of this Agreement and shall pay to Aid IT Services the sum of fifteen thousand dollars ($15,000.00) as liquidated damages in consideration of the loss of profit, and losses incurred as a result of the need to acquire, train and otherwise replace any such employee, contractor, supplier, vendor, consultant, independent contractor, client or customer. Payment of liquidated damages precludes Aid IT Services from any further claim available in law and in equity.
iv. Aid IT Services acknowledges that during the term of this Agreement and for a period of one (1) year following termination of the Agreement, that Aid IT Services shall not, without the express written consent of Client, (a) directly or indirectly, solicit, recruit or induce (nor assist anyone in soliciting, recruiting or inducing) any employee of Client to terminate his or her relationship with Client (b) induce (nor assist anyone else in inducing) any supplier, vendor, consultant or independent contractor of Client to terminate or negatively alter his, her or its relationship with Client , or (c) directly or indirectly solicit or induce (nor assist anyone else in soliciting or inducing) any client or customer of Client whose information was accessible to Aid IT Services pursuant to this Agreement. Should Aid IT Services desire to, directly or indirectly, employ or contract with any of Clients employees, contractors, suppliers, vendors,
consultants, independent contractors, clients or customers described above, Aid IT Services must obtain written approval from Client and make payment of a replacement fee in the
amount of ten thousand dollars ($10,000.00). Should Aid IT Services fail to obtain the written approval, Aid IT Services shall be in breach of this Agreement and shall pay to Client the sum of fifteen thousand dollars ($15,000.00) as liquidated damages in consideration of the loss of profit, and losses incurred as a result of the need to acquire, train and otherwise replace any such employee, contractor, supplier, vendor, consultant, independent contractor, client or customer. Payment of liquidated damages precludes Client from any further claim available in law and in equity.
12. Suspension and Termination.
i. In the case of either of the following events: (a) if and for as long as the Services may be interrupted or delayed by any “force majeure”; or (b) in the event that Aid IT Services is incapacitated, or otherwise unable to render the Services engaged hereunder; or (c) in the event that either party breaches any representation, warranty, covenant, or agreement contained herein, either party shall be entitled to provide the other with a Notice to suspend the provisions of this Agreement. This Agreement shall be reinstated if the cause of suspension is removed and the Services continue before an aggregate of fifteen (15) days of suspension. If the suspension is not reinstated prior to an aggregate of fifteen (15) days of suspension (the “Suspension Period”), this Agreement shall be terminated on the day following the Suspension Period.
ii. In the case that either party becomes insolvent, is placed into bankruptcy, assigns its assets or prevails itself of any other legal provision pertaining to insolvency, bankruptcy or arrangements with creditors and if such breach is not cured within fifteen (15) days after receiving notice from the other party, the other party shall be entitled to suspend the provisions of this Agreement subject only to the obligation to pay any compensation owing at that date and time.
iii. Either party may terminate this Agreement if the other party breaches any representation, warranty, covenant, or agreement contained herein.
iv. Aid IT Services makes no guarantee regarding the Term of this Agreement and reserves the right to terminate this Agreement at any time, even if Services have not been completed and/or delivered but subject to section.
vi. Upon Termination, ii) Client shall pay to Aid IT Services any Fees due pursuant to this Agreement and each party shall return all copies of Confidential Information and all other property belonging to and/or received from the other party. Consultant agrees that upon the termination of this Agreement for any reason, or at any time during the Term as requested by Client, Consultant shall return (or, at Client’s request, destroy) all records of User Information in the possession or control of Aid IT Services
13. EXCEPT FOR WHAT IS SPECIFICALLY PROVIDED FOR IN THIS AGREMEENT, THE STANDARD TERMS AND CONDITIONS OR ANY ATTACHMENT, IN NO EVENT SHALL Aid IT Services, OR ITS RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, SUCCESSORS, LICENSEES AND ASSIGNS BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, OR LOSS OF ANTICIPATED BUSINESS) ARISING OUT OF OR IN RESPECT OF THIS AGREEMENT OR ANY APPLICABLE AGREEMENT, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WHETHER PURSUANT TO COMMON LAW, STATUTE OR EQUITY, EVEN IF SUCH DAMAGES MAY HAVE BEEN FORESEEABLE. Aid IT Services’ LIABILITY FOR ANY CAUSE WHATSOEVER SHALL BE STRICTLY LIMITED TO DIRECT DAMAGES ONLY, AND WITH RESPECT TO Aid IT Services’ LIABILITY, SHALL BE LIMITED TO THE COMPENSATION ACTUALLY RECEIVED BY Aid IT Services FOR THE SERVICES, PROVIDED BY Aid IT Services, DIRECTLY RELATED TO THE CAUSE OF THE DAMAGES PURSUANT TO THIS AGREEMENT OR TO ANY APPLICABLE AGREEMENT. Aid IT Services WAIVES ALL FURTHER LIABILITIES.
i. Intellectual Property Indemnification: Aid IT Services shall indemnify and defend, or at its option, settle, any claim suit or proceeding brought against the Client based on an allegation that deliverables pursuant to this Agreement infringe upon any Canadian patent or any copyright or violates any trademark or trade secret rights of any party (“Infringement Claims”), provided the Client promptly notifies Aid IT Services in writing of its notification or discovery of an Infringement Claim such that Aid IT Services is not prejudiced by any delay of such notification. Aid IT Services shall pay reasonable attorney fees, court costs and damages finally awarded in such infringement. Aid IT Services will have sole control over the defense or settlement of any Infringement Claim and the Client will provide reasonable assistance in the defense of same. Aid IT Services will reimburse the Client for reasonable expenses incurred in providing such assistance.
ii. Following notice of an Infringement Claim, or if Aid IT Services believes such a claim is likely, Aid IT Services may, at its sole expense and option: (i) procure for the Client the right to continue to use the allegedly infringing deliverables; (ii) replace or modify the deliverables to make them non-infringing; or (iii) accept return of the deliverables and refund as appropriate payments made therefore by Client. The amount of the refund shall be determined by Aid IT Services acting reasonably based on the fee paid by the Client.
iii. Aid IT Services assumes no liability, and shall have no liability, for any Infringement Claim based on: (i) the Client’s use of any deliverables after notice to the Client that the Client should cease use of such deliverables due to an Infringement Claim; (ii) any modification of the Deliverables by the Client at its direction provided that such modification was not authorized or otherwise directed by Aid IT Services; (iii) the Client’s combination of deliverables with non-Aid IT Services: programs, applications, data, hardware or other materials if such Infringement Claim would have been avoided by the exclusive use of the deliverables alone; or (iv) any trademark infringement involving any marking or branding not applied by Aid IT Services or any marking or branding applied at the Client’s request. The foregoing states the exclusive remedy of the Client with respect to any Infringement Claim.
iv. Client agrees to indemnify and hold harmless Aid IT Services, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorney’s fees, to the extent that it is based upon a claim that:
a. if true, would constitute a breach of any of Clients representations, warranties, covenants or agreements hereunder,
b. arises out of the negligence or wilful misconduct of Client including that which Client ought to have known; or
c. any of the Content provided by Client hereunder and used by Consultant as contemplated in this Agreement infringes or violates any patents, copyrights, trade secrets, licences, or other property rights of any third party
v. Each party’s indemnification obligations shall survive any termination of this Agreement.
vi. In claiming any indemnification hereunder, the party claiming the indemnity (the Indemnified Party”) shall promptly provide the other party (the “Indemnifying Party) with written notice of any claim which the Indemnified Party believes falls within the scope of the foregoing paragraphs. The Indemnified Party may, at its own expense, assist in the defence if it so chooses, provided that the Indemnifying Party shall control such defence and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
15. Dispute Resolution.
i. The parties shall first identify the facts and issues in dispute and within five (5) days of receipt of such written notice confer between themselves or by mutual agreement with their lawyers or representative present as to ways to resolve the dispute to the mutual benefit of the parties. The parties agree to use all reasonable endeavours to resolve any dispute that may arise.
ii. If after such meeting or subsequent meetings as the parties may agree, the dispute is not solved within fifteen (15) days of commencement of discussions then mediation may be initiated by any party writing to the other party and identifying the dispute which is being suggested for mediation. The other party will either agree to proceed with mediation or agree to attend a preliminary meeting with the mediator to discuss whether mediation would be helpful in the circumstances. The parties will agree on a suitable person to act as mediator or will ask the ADR Institute of Canada to appoint a mediator. The mediation will be in accordance with the Mediation Protocol of the ADR Institute of Canada. The Parties shall bear their own costs in the mediation and shall share the mediator’s costs equally.
iii. The mediation shall be terminated by;
a. The signing of a settlement agreement by the parties; or
b. Notice to the parties by the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified; or
c. Notice by one of the parties to the mediator to the effect that further efforts at mediation are no longer justified; or
d. The expiry of fifteen (15) working days from the mediator’s appointment, unless the parties expressly consent to an extension of this period.
iv. If the mediation should be terminated as provided in sub-clauses (a), (b), (c) or (d) of the clause above, any dispute or difference arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, may be referred to and finally resolved by reference to the courts.
i. Authority. The signatories to this Agreement represent that they have full authority to enter into this Agreement and to bind the parties hereto.
ii. Entire Agreement. This Agreement or any schedule or attachment, attached hereto including any approved Quote, pursuant to this Agreement, contain the entire Agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings with respect thereto.
iii. Amendment. This Agreement may be amended only by a written document duly executed by the parties hereto.
iv. Headings. The headings, titles and other captions in this Agreement are for reference and convenience only and shall not be construed in any way as limitations or additions of the covenants and agreements contained in this Agreement.
v. Assignment. Neither party may assign this Agreement, in whole or in part, without the express written consent of the other party, with the exception of an assignment carried out as part of a merger, restructuring, or reorganization or as a sale or transfer of all or substantially all of a party’s assets. Aid IT Services shall be able to subcontract its obligations under this Agreement in whole or in part. In the event Aid IT Services exercises its right to subcontract hereunder, Aid IT Services shall remain solely responsible to the Client for performance under this Agreement.
vi. Survival. Any representations and warranties contained in this Agreement shall survive and not merge on termination of this Agreement or completion of any transaction but apply only to the Services including product procurement and any dealing with products carried out pursuant to this Agreement.
vii. Severability. The terms stated herein are declared to be severable. If any provision of this Agreement is determined to be unenforceable, such provision will be ineffective only to the extent of such unenforceability without affecting the enforceability of the remaining provisions of this Agreement.
viii. If either party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing party shall be entitled to recover its reasonable legal fees or other litigation expenses from the other party.
ix. Waiver. The failure by one party to require performance of any provision of the Agreement contained herein shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
x. Enurement. The provisions of this Agreement shall ensure to the benefit of and be binding upon the parties hereto and their respective administrators, successors and assigns.
xi. Force Majeure. Neither party shall be liable for any reasonable delay or failure to perform its obligations hereunder resulting from any cause beyond its reasonable control including but not limited to fires, explosions, earthquakes, floods; strikes, work stoppages or slow-downs or other industrial disputes; accidents; riots or civil disturbances; acts of civil or military authorities; and delays by carriers, suppliers or materials shortages. A party wishing to invoke this section to excuse any delay or failure to perform its obligations under this Agreement shall notify the other party in writing immediately specifying the cause and giving an estimate of the duration of the force majeure event, work to overcome the force majeure event as soon as possible and notify the other party when the force majeure event has ceased or has been overcome.
xii. Jurisdiction. The parties agree that this Agreement shall be governed by and construed in accordance with the laws of Alberta and the applicable laws of Canada without giving effect to conflict of law principles. The parties to this Agreement irrevocably submit to the jurisdiction of the courts of Alberta with respect to any claim arising out of or in relation to this Agreement, but subject to the dispute resolution provisions of this Agreement.
xiii. Independent Contractor. The relationship between Aid IT Services and Client is that of an independent contractor. Neither party is the agent of the other nor does either party have the authority to bind the other or create debts on the other party’s behalf except as specifically provided for in this Agreement. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment relationship, joint venture or a partnership between a party and the other party or the other party’s employees or agents. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and other statutory payroll deductions), workers compensation and all other employment benefits.
xiv. Sales Tax. Any fees contained in this Agreement, or any applicable Quote, purchase order, contract or invoice, pursuant to this Agreement are subject to applicable sales tax which shall be added to the price of Services and products contemplated herein. Fees are exclusive of taxes, levies, duties and other governmental charges.
xv. Past Due Accounts. Surcharges for late payments will be in effect fifteen (15) days from the date upon which an invoice is sent to Clients email address. An interest rate of 2.5% per month will be charged on past due accounts. If your account is past due by three (3) months from Clients receipt of invoice, Aid IT Services reserves the right to place the matter in collection and/or pursue settlement through the courts.
xvi. Currency. All references to money herein are in Canadian dollars.
xvii. Notices. Any notice or other communication required or permitted to be given hereunder shall be given in person, by regular mail, courier, shipping or electronic transmission addressed to each party at the address or email address of each party listed on page one (1) of this Agreement or any other email address provided by one party to the other. Any such written notice shall be deemed to have been given on the eighth (8th) working day following the day when it was so mailed or the next day following the date upon which Notice was emailed. Either party may at any time give notice to the other party of a change of address.
xviii. Electronic Transmission. This Agreement including the Attachments and any agreements, Quotes, Notices or other communications contemplated thereby may be transmitted by means of electronic systems, in which case any signatures including initials shall be deemed to be original. The transmission of this Agreement and the Attachments by electronic means shall be deemed to confirm each party has retained a true copy of the Agreement.
xix. Electronic Signatures. If this Agreement has been signed with an electronic signature the parties hereto consent and agree to the use of such electronic signature with respect to this Agreement pursuant to the Electronic Commerce Act 2000, S.O. 2000, c17 as amended from time to time.
xx. Legal Advice. Each party acknowledges being given the opportunity to consult a lawyer before signing this agreement and has consulted a lawyer to the extent each party deems appropriate.
xxi. Confirmation. By signing this agreement, Client has read and understood the terms and conditions contained herein.
We reserve the right to waive or change our legal terms and conditions, in writing, at any time and for any particular circumstance.
The above terms and conditions may or may be read injunction with and repeated in one or more other written agreements of approved Quote. In the event there is a conflict between any term or condition contained herein, any schedule, attachment or approved Quote and any term or condition contained in another agreement with Aid IT Services, the terms and conditions of the other agreement shall prevail.