SERVICE PROVIDER STATEMENT OF WORK TERMS AND CONDITIONS
The services provided by Service Provider as described in applicable SOWs (the “Services”) are subject and limited to the Terms and Conditions set out herein. Customer accepts and agrees to be bound by these Terms and Conditions. These Terms and Conditions constitute a binding contract between Customer and Service Provider and are referred to herein as either “Terms and Conditions” or “T&C Agreement”. Customer acknowledges and agrees that these Terms and Conditions are firm as of the date on which the applicable SOW becomes effective (“Effective Date”) and throughout the term of the applicable SOW once Service Provider is engaged to provide Services. This T&C Agreement contains the entire understanding of the Parties regarding the matters set out herein and supersedes and replaces any and all other understandings, negotiations and previous agreements, written or oral, express or implied, if any, between the Parties with respect to the subject matter hereof.
Unless otherwise defined herein, capitalized terms and expressions retain the meaning provided in the applicable SOW. Customer and Service Provider are herein individually referred to as a “Party” and collectively the “Parties”.
Each SOW hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any terms of a SOW or these Terms and Conditions, these Terms and Conditions prevail. Changes to the scope of the Services described in a SOW shall only be made in writing and signed by authorized signing authorities of the Parties. Service Provider shall be under no obligation to commence work in connection with any change, unless and until the change is mutually agreed to in writing and executed by both Parties. Any change to the scope of the Services shall be governed by these Terms and Conditions and the applicable governing document. Each SOW may be signed in separate counterparts each of which shall be deemed an original and all of which together shall be deemed to be one original document.
Service Provider’s Responsibility
Service Provider shall perform the Services in accordance with current industry standards and practices.
SERVICE PROVIDER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, OF ANY NATURE OR KIND, ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES, OR RELATED TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND/OR ARISING OUT OF OR RELATED TO THE OUTCOMES TO BE ACQUIRED FROM THE SERVICES. THIS SHALL INCLUDE, BUT IS NOT LIMITED TO, EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS FOR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT.
CUSTOMER ACKNOWLEDGES AND AGREES THAT NO REPRESENTATIVE OF SERVICE PROVIDER NOR ANY OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SERVICE PROVIDER OR ANY OF ITS AFFILIATES.
Customer agrees, in addition to any of its duties set out in any applicable SOW, to provide the following to Service Provider on a timely basis and without delay: (a) responses to all inquiries, approvals, and authorizations, including without limitation, any and all consents, and approvals required by Service Provider, its affiliates, and contractors to obtain the right or license to access, use, and modify all data and third party products; and (b) access to all information, materials, documentation, resources, and systems as required by Service Provider, in its sole discretion, to perform Services.
Customer shall be solely responsible for: (a) the accuracy and completeness of all information provided and assumes any and all risk that may arise as a result of any inaccuracies; (b) performing all daily back-up and other protection of its data and software from loss, damage, or corruption; and (c) any reconstruction of its data and software lost, damaged, or corrupted during the performance of the Services.
In all of its dealings with Service Provider, Customer shall act in good faith, in the best interests of the project, and exercise the degree of diligence and responsibility of a reasonable party in comparable circumstances.
FEES AND PAYMENT
Service Provider shall have sole discretion in connection with terms of payment for the Services in each applicable SOW. Customer shall pay Service Provider for all Services in accordance with the fees and payment structure set forth in the applicable SOW, plus all applicable taxes and expenses.
Customer shall pay Service Provider invoices, without any set-off or deductions, on a monthly basis; payment of each invoice is due, in full, within thirty (30) days from receipt of invoice.
In the event that Customer fails to pay Service Provider within thirty (30) days from receipt of invoice, Customer shall pay Service Provider interest at a rate equal to Prime Rate plus one percent (1%) per month on the outstanding balance of amounts owed. “Prime Rate” means the prime rate of the Royal Bank of Canada as of the date on which such invoice becomes past due.
Customer shall indemnify and hold Service Provider harmless from any applicable sales, use, transaction, excise, or similar taxes and any federal, provincial, or municipal taxes, fees or charges relating to any SOW or this T&C Agreement. In the event that Customer defaults in making any payments referred to herein, Customer shall be responsible for all of Service Provider’s costs resulting, either directly or indirectly, from such default.
In addition to any other remedies available to Service Provider for unpaid invoices or any outstanding amounts owed, Service Provider may suspend providing Services until such time as payment is received; such suspension of Services shall not be considered a termination of the applicable SOW unless Service Provider provides notice of termination.
LIMITATION OF LIABILITY AND INDEMNITY
Limitation of Liability
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SERVICE PROVIDER, ITS AFFILIATES OR ITS AND THEIR EMPLOYEES, SUPPLIERS, SUBCONTRACTORS OR AGENTS SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR: (A) ANY PUNITIVE, EXEMPLARY, AGGRAVATED, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, WHETHER OR NOT SUCH DAMAGES OR LOSSES WERE DISCLOSED OR KNOWN TO SERVICE PROVIDER OR SHOULD HAVE BEEN REASONABLY FORESEEN BY SERVICE PROVIDER, REGARDLESS OF THE TYPE OR BASIS OF SUCH LIABILITY; (B) ANY THIRD PARTY CLAIMS, DEMANDS, DEFAULTS, OR ACTIONS AGAINST CUSTOMER; (C) ANY LOSS OR CLAIM RESULTING FROM CUSTOMER’S USE OF ANY RECOMMENDATIONS MADE BY SERVICE PROVIDER OR ITS AFFILIATES RELATED TO SERVICES OR PRODUCTS; OR (D) ANY SOFTWARE OR DATA THAT IS LOST, DAMAGED OR CORRUPTED.
IF ANY LIABILITY, BASED ON EITHER BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IS INCURRED BY SERVICE PROVIDER OR ANY OF ITS AFFILIATES, SUCH LIABILITY SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE PAYMENT AMOUNT RECEIVED BY SERVICE PROVIDER FROM CUSTOMER FOR THE SPECIFIC SERVICES WHICH ARE THE SUBJECT OF THE CLAIM.
In the event of an event or effect that cannot be anticipated or controlled (“Force Majeure Event”), an unavoidable delay or any hazardous or potentially hazardous condition at or around Customer’s premises, Service Provider shall not be liable for the performance of any of its obligations for so long and to the extent that the Force Majeure Event, delay, or hazard continues. A Force Majeure Event includes, but is not limited to, product and/or resource unavailability, carrier delays, severe weather conditions, power failure, delays resulting from fire, labour problems, acts of war, terrorism, embargo, acts of God or restrictive acts or laws of a government or agency. Any shipping dates or completion dates provided by Service Provider are solely estimates; any purported deadlines within SOWs or any other document are solely estimates. A hazardous or potentially hazardous condition includes but is not limited to: (a) the discovery of a potential or confirmed safety hazard, (b) any inability or impracticality for Service Provider to safely access, traverse and egress from all, a substantial portion of, or the portion of premises where Customer operates its business, and (c) any electrical infrastructure failure which creates or results in any hazardous or potentially hazardous condition at or around Customer’s premises.
Customer shall indemnify, defend, and hold harmless Service Provider and its officers, directors, employees, representatives, and agents (“Indemnified Parties”) for any damages, losses, costs, judgments and expenses (including all legal fees) to the Indemnified Parties arising from any claim, action, suit, or proceeding connected with or resulting from, either directly or indirectly, the performance of Customer’s obligations under this T&C Agreement, applicable SOWs, and/or the actions of Customer or its officers, directors, employees, agents, representatives or subcontractors.
Subject to the provisions set out in Limitation of Liability as provided herein, Service Provider shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, and representatives (“Customer Indemnified Parties”) for any damages, losses, costs, and expenses (including reasonable legal fees) to the Customer Indemnified Parties arising from a claim, action, suit or proceeding connected with or resulting from the gross negligence or willful misconduct of Service Provider or its employees or subcontractors in its or their performance of the Services. Service Provider shall not, under any circumstances, be liable for any damage, loss, expense, liability, action, suit, or proceeding, resulting from loss, damage or corruption of software or data or the loss of use of any software, hardware, or product. For greater clarity, claims do not include any damages, losses, costs, expenses, or judgments caused, directly or indirectly, by products, licenses, or as otherwise excluded in this T&C Agreement.
Subject to any qualifications and limitations set out in this T&C Agreement, each Party shall indemnify, defend, and hold harmless the other Party from any damages, losses, costs, and expenses (including reasonable legal fees) arising from the failure of a Party and/or its employees, agents, representatives, or subcontractors to comply with or conform to any statues, laws, legislation, ordinances, rules, regulations, codes, permits, licenses, specifications, standards, and official interpretations.
TERM AND TERMINATION
These Terms and Conditions shall remain in effect until all Services are completed unless a Party provides notice of termination in accordance with Termination as provided for herein.
A Party may terminate a SOW for cause if the other Party is in material default of any of the terms, conditions, responsibilities, and obligations under the applicable SOW or this T&C Agreement, and such material default is not cured within the time period provided herein. Written notice of termination shall be delivered to the defaulting Party and shall specifically identify any material default. Upon receipt of written notice of termination, the defaulting Party shall have thirty (30) days to remedy such material default, save that any monetary default must be remedied within ten (10) days of receipt of said notice.
Either Party may terminate a SOW without cause upon thirty (30) days prior written notice of termination unless otherwise provided in the applicable SOW.
In the event of an asset sale of all or substantially all of a Party’s assets or a change of control of a Party, the other Party may terminate a SOW upon thirty (30) days written notice of termination unless otherwise provided in the applicable SOW.
In the event of termination of any applicable SOW, Customer shall pay Service Provider for all Services performed and expenses incurred up to and including the date of termination plus any additional fees set out in the applicable SOW or in this T&C Agreement. In addition, Customer shall pay to Service Provider, any expenses or other costs resulting from termination, and all rights and obligations of the Parties under this T&C Agreement shall terminate except for any right of action occurring prior to termination, payment obligations and obligations that by their nature are intended to survive termination.
Relationship of the Parties
The Parties hereto acknowledge and agree that:
- nothing in this T&C Agreement shall be construed as creating or constituting a joint venture, agency, or partnership relationship between the Parties;
- each of the Parties hereto is an independent contractor and that neither Party is, nor shall be considered, an agent, distributor, or representative of the other. For greater certainty, the duties to be performed and the obligations assumed by Service Provider under this T&C Agreement shall be performed and assumed as an independent contractor and not as an agent or representative of Customer; and,
- the employees of one Party shall not be deemed to be employees of the other Party. Neither Party shall act or represent itself, directly or by implication, as an agent of the other nor in any manner assume or create any obligation on behalf of, or in the name of, the other.
Customer acknowledges and agrees that Service Provider shall have the right to contract with third parties to secure and perform the Services.
Normal Business Hours
For the purposes of these Terms and Conditions and all applicable SOWs, normal business hours shall mean Monday to Friday, 9:00am to 5:00pm EST. Weekends and holidays are not standard workdays and work performed on weekends and holidays by Service Provider shall be charged at a rate of time and a half. All work performed outside of normal business hours is to be charged at a rate of time and a half.
All requests for Services and project scheduling are subject to resource availability and availability of personnel to perform Services. Any estimates provided by Service Provider, for Services that will be performed on a time and material basis, are solely for planning purposes. Service Provider, in its sole discretion, reserves the right to change resources and personnel at any time.
Service Provider shall not be liable for any delays arising from circumstances or causes beyond its reasonable control.
Customer shall not, during the term hereof and for a period of one (1) year following the expiration or termination of this T&C Agreement, directly or indirectly solicit for employment or employ any person who is an employee of Service Provider.
In connection with this T&C Agreement and all applicable SOWs, in the event that either Party comes into possession of any confidential or proprietary information of the other Party (the “Confidential Information”), the receiving Party agrees to use such Confidential Information solely in connection with the performance of this T&C Agreement and the applicable SOWs.
“Confidential Information” means any information or data, including, without limitation, a Party’s research, development, trade secrets or business affairs, whether in oral, electronic or written form, which the receiving Party knows or reasonably ought to know is proprietary or confidential and which is disclosed by a Party in connection with this T&C Agreement and the applicable SOWs or which may be accessible to the receiving Party in connection with this T&C Agreement and the applicable SOWs.
Confidential Information does not include information which: (a) is known or becomes known to the public vis-à-vis an entity that is not the receiving Party; (b) was known to the receiving Party or becomes known to the receiving Party from a third party; or (c) is independently developed by the receiving Party who had no access to such information. Each Party agrees to hold the other Party’s Confidential Information using the same degree of care as it holds its own Confidential Information, but no less than a reasonable degree of care.
A Party may only disclose the other Party’s Confidential Information (a) to a Party’s personnel, on a need-to-know basis, as required to perform the Services in connection with this T&C Agreement and the applicable SOWs, or (b) to its business, legal and financial advisors, each on a confidential basis, and for no other purpose. At the request of a Party, the other Party shall return or confirm destruction of the Confidential Information of the requesting Party. If required by law or compelled by a court or other governmental authority, and to the extent permitted by law, a Party may disclose the Confidential Information of the other Party as required and shall provide sufficient notice of all details to the disclosing Party. The disclosing Party may elect how to proceed as it deems appropriate. The Parties acknowledge and agree that neither Party acquires any right, title, or interest in the other Party’s Confidential Information.
Personal Data & Personal Identifiable Information
Customer acknowledges and agrees that it is neither necessary nor required for Service Provider to process any personal data, including Personal Identifiable Information (PII), to perform the Services. PII is defined as any information about an identified or identifiable individual or any information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual. PII includes but is not limited to names, email addresses, postal addresses, telephone numbers, government identification numbers, financial account numbers, payment card information, credit report information, biometric information, online identifiers (including IP addresses and cookie identifiers), network and hardware identifiers, and geological information.
Customer shall not provide Service Provider with access to any PII or personal data unless the Parties have mutually agreed in a separate agreement on the scope of work and any terms applicable to Service Provider’s processing of such PII and/or personal data.
Service Provider shall, in its sole and unfettered discretion, have the right to assign or subcontract any of its rights, duties and obligations arising out of this T&C Agreement, any applicable SOW, and any exhibits thereto, without Customer’s consent. Customer shall not, under any circumstances, assign this T&C Agreement, any of its rights and obligations herein, any applicable SOW, or any exhibits thereto, without the prior written consent of Service Provider, which consent may be unreasonably withheld.
These Terms and Conditions, SOWs, and Services shall be governed and interpreted under the laws of the Province of Ontario and the federal laws of Canada applicable therein. All disputes, including those related to interpretation, enforceability, and validity, shall be determined under the laws of the Province of Ontario without regard to any conflict of law provisions. The Parties submit to the exclusive jurisdiction of the courts of the Province of Ontario for all disputes and actions arising, directly or indirectly, out of the T&C Agreement, SOWs, and Services; the performance of the T&C Agreement, SOWs, and Services; or any breach of the T&C Agreement, SOWs, and Services.
All Terms and Conditions of this T&C Agreement which should by their nature survive the expiration or termination of this T&C Agreement shall so survive, regardless of the method or manner in which it is terminated, until the Parties mutually consent to release such obligations. Without limiting the generality of Survival herein, Indemnity, Non-Solicitation, and Confidentiality shall survive the expiration or termination of any applicable SOWs.
If any provision of this T&C Agreement or any applicable SOW is found by a court of competent jurisdiction to be illegal, unenforceable, invalid, or void then such provision shall be null and void, however each of the other provisions hereof or thereof or the whole of this T&C Agreement or the applicable SOW and the provisions not so affected will be enforced to the full extent permitted by applicable law.
This T&C Agreement, including all applicable SOWs and any exhibits to such SOWs, constitute the entire Terms and Conditions and agreement (“Entire Agreement”) between the Parties hereto with respect of the subject matter hereof, and supersedes all other oral, written, electronic or implied, representations, understandings or agreements relating to the subject matter hereof and thereof.
The Parties hereto acknowledge and agree that there are no other representations, warranties, terms, conditions, undertakings, or collateral agreements, express, implied, or otherwise, between the Parties other than as expressly set forth in the Entire Agreement.
Reserves Right to Modify, Update, and Amend
Service Provider reserves the right, at any time, to modify, update or amend these Terms and Conditions. These modifications, updates and/or amendments will be reflected in this T&C Agreement which can be found at Service Provider’s website at the following link: https://arctiq.ca/sow-terms-conditions/. Service Provider recommends that Customer periodically consult these Terms and Conditions to remain up to date with same. Customer’s continued engagement with Service Provider pursuant to any applicable SOW shall, in regard to such modifications, updates and/or amendments, constitute Customer’s acceptance of this T&C Agreement, as revised.
Version Date: September 10, 2021