Terms and Conditions (“Terms”)
1. CONSULTING SERVICES AND TRAINING SERVICES.
1.1 Consulting Services. Subject to the Terms contained herein Agency will provide Customer with the training course and/or consulting services (“Services”) set out in the Order Form (“Order From”) referencing these Terms. Customer may purchase additional Services by entering into a new Order Form.
1.2 General Provisions. Services are only for Customer’s internal use and Customer may not use the Services to supply any consulting services or training services to any third party.
2. PAYMENT. Customer will pay to Agency the fees and other compensation set forth in each Order Form. Customer will also reimburse Agency all reasonable out-of-pocket travel incurred in the provision of the Services, and any other reimbursable items set forth in each Order Form. All invoices will be paid within thirty (30) days from the date of the invoice. All payments are nonrefundable and made without the right of setoff or chargeback. Customer shall pay interest, at a rate equal to one percent (1%) per month on any undisputed amount that remains unpaid thirty (30) days after the date of the invoice. If Customer fails to pay fees in accordance with this Section, Agency may suspend fulfilling its obligations under these Terms until such payment is received by Agency. Customer will pay directly any taxes arising out of these Terms or Agency’s performance under these Terms, including applicable local, state, provincial, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Agency’s net income and all employer reporting and payment obligations with respect to Agency’s personnel. If any applicable law (e.g. U.S.) requires Customer to withhold amounts from any payments to Agency under these Terms, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Agency with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Agency receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Agency would have received and retained absent the required deduction or withholding.
3. OWNERSHIP.
3.1 Ownership of Deliverables: (a) For “Done for you Services” as set out in an Order Form Customer shall be the sole owner of any customized works of authorship (collectively “Work Product”).The Agency irrevocably assigns to and in favor of the Customer and the Customer accepts every right, title and interest in and to such Work Product, immediately following the creation thereof, for all time and irrevocably waives in favor of the Customer all rights of integrity and other moral rights to all customized Work Product, immediately following the creation thereof, for all time; and (b) For any other Services, Customer acknowledges that it is not obtaining any intellectual property rights from Agency under these Terms. Customer acknowledges that in the course of performing its obligations under these Terms, Agency may create works Work Product. Subject to Customer's rights in its Confidential Information, Agency shall own all right, title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of consulting Services (a “Deliverable”), Agency retains all right, title and interest in such Deliverables and hereby grants to Customer a nonexclusive, worldwide right and license to use, execute, reproduce, display and perform any such Deliverables solely for its internal business purposes.
3.2 Course Materials. All Agency developed or provided course materials, including templates and tools, whether in existence at the date of these Terms or created thereafter (collectively, the "Course Materials") shall be and remain the property of Agency and Customer shall have no rights or interests except as set forth here. Customer will have the right to distribute and use the Course Materials solely for internal use by its employees who participate in courses, and said employees shall be bound by the restrictions contained in these Terms. For greater certainty, sharing of the Course Materials by any employee is strictly prohibited, unless authorized by a separate agreement. Customer shall not without the prior written consent of Agency, resell, lease, loan or transfer any of the Course Materials to any other person or entity, or use such information to create any similar program. Customer agrees to use the Course Materials in such a way as to not denigrate the integrity of the Course Materials or the reputation of the Agency. Customer shall not sub-license the Course Materials to any other party whatsoever, Customer training facilitators or project managers, as applicable, will be expected to tell all participants that the Course Materials is used by Customer under license by Agency for Customer’s internal use only. Distribution of all or any portion of this material outside of Buyer by any method is strictly prohibited. Customer shall not change, alter, modify, edit, redact, adapt, translate or create derivative works using the Course Materials without Agency’s prior written consent. All Agency trademarks, trade names, logos and notices present on the Course Materials will be preserved.
3.3 Residual Rights. Notwithstanding the above, Customer agrees that Agency, its employees and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Services performed under these Terms, subject to its obligations respecting Customer’s Confidential Information pursuant to Section 4.
3.4 Customer’s Materials. Customer grants to Agency a nonexclusive, non-transferable, royalty-free license to use materials provided by Customer to Agency during the term of these Terms solely for the purpose of performing the Services for Customer. The Customer shall ensure that all Customer Materials provided hereunder do not infringe any third party rights and comply with all applicable laws. The Customer is responsible for obtaining all legal clearances required for the performance of services hereunder.
4. CONFIDENTIAL INFORMATION. For the purposes of these Terms, “Confidential Information” means any information which is not generally available to or used by third parties and that is disclosed by one Party to the other Party in the course of Agency providing the Services to you. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the receiving party or any of its parent, subsidiary or affiliated companies and was obtained without an obligation of confidence; (b) is independently developed by the receiving party or any of its parent, subsidiary or affiliated companies without any use of or reference to the Confidential Information; (c) is or becomes publicly available without breach of these Terms or breach of any obligation of confidence; (d) is acquired by the receiving party from a third party who provided the information without breaking any express or implied obligations or duties to the disclosing party; or (e) is intentionally released for disclosure by the disclosing party or with the disclosing party’s prior written consent.
Each party will take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information. Except as required by law or a valid court order, and subject to the receiving party informing the disclosing party of such legal requirement, the receiving party will only disclose such Confidential Information to those employees or agents who need to know in order to perform their obligations under these Terms. The receiving party will ensure that those people who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information.
5. WARRANTY AND LIABILITY.
5.1 Limited Warranty. With respect to any Services, Agency warrants that Services rendered under these Terms will be performed by qualified personnel; and the Services performed will substantially conform to any applicable requirements set forth in the Order Form.
5.2. Remedies. In the event that any Services fail to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Customer will be for Agency, at its expense, to promptly re-perform the applicable Services. The foregoing warranty is expressly conditioned upon Customer providing Agency with written notice of any claim thereunder within ten (10) days of delivery of the affected Services, which notice must identify with particularity the non-conformity.
5.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, AGENCY DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABLE QUALITY, TITLE, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
5.4 Customer Assistance. In order for Agency to properly provide the Services, Customer agrees to comply with the requirements (such as, provision of data and equipment) as specifically set out in the Order Form or as reasonably requested by Agency. Failure to comply with the requirements may cause delays in the delivery of the Services and/or additional fees or consume additional hours.
6. EMPLOYEES.
6.1 No Employee Relationship. Agency's employees and personnel (“Personnel”) are not and will not be deemed to be employees of Customer. Agency will be solely responsible for the payment of all compensation to its Personnel, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Agency's Personnel. Agency’s Personnel will not be entitled to any benefits paid or made available by Customer to its employees.
6.2 Subcontractors. Agency may engage third parties to furnish services in connection with the Services, provided that such third parties have executed or are subject to appropriate confidentiality agreements with Agency.
6.3 Non-Solicitation. Neither party may hire, or directly or indirectly solicit or employ, any employee or contractor of the other party during the term of these Terms and for twelve (12) months after the termination of these Terms; provided, however, that nothing contained herein will prevent a party from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.
7. TERM AND TERMINATION. The term of these Terms will commence on the Effective Date and will remain and continue in effect, unless sooner terminated as provided under these Terms. These Terms may be terminated in whole or in part by each party (the “Non-Breaching Party”) upon written notice to the other part if any of the following events occur by or with respect to such other party (the “Breaching Party”): (i) the Breaching Party commits a material breach of any of its obligations under these Terms and fails to cure such breach within thirty (30) days after receipt of notice to do so; or (ii) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors. Upon termination, AGENCY will be entitled to recover payment for all Services and related expenses rendered through the date of termination, including for work in progress. In the event of termination or upon expiration of these Terms, Sections 2, 3, 4, 5.3, 6, 7, 8 and 9 will survive and continue in full force and effect.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCE WILL AGENCY BE LIABLE FOR ANY (I) LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE; OR (II) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AGENCY’S AGGREGATE LIABILITY UNDER THESE TERMS EXCEED THE AMOUNT PAID UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS UNDER THESE TERMS BETWEEN CUSTOMER AND AGENCYAND THE FEES CHARGED FOR THE SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
9. MISCELLANEOUS.
9.1 Entire Agreement. These Terms constitutes the entire agreement between the parties concerning the subject matter hereof. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Services to be provided under these Terms and to this extent only are incorporated as a part of these Terms and all other terms in purchase orders are rejected. These Terms supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of these Terms shall be effective unless in writing and signed by both parties.
9.2 Severability. If any provision of these Terms is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable.
9.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under these Terms.
9.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due).
9.5 No Third Party Beneficiaries. Unless otherwise specifically stated, the terms of these Terms are intended to be and are solely for the benefit of Agency and Customer and do not create any right in favor of any third party.
9.6 Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State of the Province of Ontario of the Customer is located in Canada and the State of New York if the Customer is located in the United States or elsewhere, without reference to the principles of conflicts of law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. The parties shall attempt to resolve any dispute related to these Terms informally, initially through their respective management, and then by non-binding mediation in Toronto, Ontario. Any litigation related to these Terms shall be brought in courts located either in the City of Toronto, Ontario for Canadian Customers or Buffalo, New York for Customers located elsewhere.
9.7 Notices. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s principal place of business as shown above, Attention Legal Department.
9.8 Assignment. Agency may assign its rights under these Terms upon giving prior notice to Customer, provided that any assignee agrees to be bound by all of the Terms of these Terms. Agency will not be in breach of the confidentiality provisions of these Terms by reason of such assignment. Except as provided in this Section, Customer may not assign your rights under these Terms, without the prior written consent of Agency, which will not be unreasonably withheld. Customer may, upon giving prior written notice to Agency, assign your rights under these Terms to a: (a) subsidiary or affiliate company; or (b) corporate successor by merger, purchase of assets and assumption of liabilities, acquisition, reorganization, or otherwise; provided that such subsidiary, affiliate or corporate successor agrees to be bound by these Terms.