ARTICLE 1 – SERVICES AND DELIVERABLES
1.1 Scope. This Agreement will control and govern matters associated with certain Deliverables and Services to be provided by Nextech during the term of, and pursuant to, this Agreement as set out in the Order Form and any subsequent Order Forms. Each fully executed Order Form incorporates in full and is governed by each and every term and condition of this Agreement.
1.2 Services. As described in each Order Form, Nextech will perform and provide those services, and deliver to the Client those Deliverables, set out in the Order Form, including at the request of the Client and as confirmed by Nextech, the On Request Services (collectively, the “Services”). Client may, from time to time, request in writing that Nextech perform On Request Services. Within five (5) business days of receiving such request, Nextech will confirm in writing whether Nextech will perform such On Request Services. Any such On Request Services will be performed on a time and materials basis at the rates set out in the Order Form. For greater certainty, the specific Deliverables and Services to be provided by, and related compensation to be paid to, Nextech will be detailed in the Order Form. Anything that is not by necessity included in the Services described in an Order Form, does not form part of the Services and the Client bears all responsibility for ensuring that the Services as described in the Order Form fully meet its needs.
1.3 SaaS Software Deliverables. For each Deliverable that is SaaS Software (including the Platform and any backend hosting services), Nextech will deliver administrative and user access credentials to the SaaS Software Deliverable and Documentation relating to the normal use and operation of the SaaS Software. All SaaS Software Deliverables will be provided to Client in accordance with the terms of the Nextech Service Level Agreement, which is available at https://www.nextechar.com/service-level-agreement-0-0, forms an essential part of this Agreement and is incorporated herein.
1.4 Software Deliverables. Without limiting the foregoing:
(a) Required Hardware and Software. Client is responsible for providing all hardware, software, equipment or ancillary services necessary to access the SaaS Software and to use any other Deliverables, including without limitation, adequate internet service.
(b) Acceptable Use. The Client’s use of the Software Deliverables are at all times subject to Nextech’s Acceptable Use Policy, which is available at https://www.nextechar.com/acceptable-use-policy-0-1, forms an essential part of this Agreement and is incorporated herein. Failure by Client to adhere to any provision of the Acceptable Use Policy will constitute a material breach of this Agreement.
ARTICLE 2 – PERFORMANCE
2.1 Performance. Nextech will use commercially reasonable efforts to promptly and diligently perform the Services in accordance with the Order Form and any applicable timelines specified therein.
2.2. Client Items. Nextech and the Client will work together to determine any Client Items and schedules for the performance therefore. The Client will perform all Client Items on or prior to the applicable target dates and will direct its personnel to promptly and efficiently cooperate with any reasonable requests made by Nextech in connection with these Client Items.
2.3 Failure of Client Items. If, the Client has failed or will fail to perform any Client Items on or prior to the applicable the target date, the Client will promptly notify Nextech, and in any event within not more than five Business Days after the Client knows the same, providing details thereof to Nextech so that Nextech can determine the actual or reasonably likely effect of the failure or inaccuracy on Nextech’s performance of the Services and delivery of Deliverables. Any failure of the Client under this Section 2.3 will constitute a valid reason for any subsequent failure to perform by Nextech that is related thereto, and will exempt Nextech from any liability associated with any such resultant failure.
2.4 Notification of Nextech Delay. Nextech will notify the Client in writing promptly if it becomes aware or reasonably anticipates that there will be or there is likely a delay in the performance or completion of any work or task required, regardless of whether or not it relates to a Client Item. The notice provided by Nextech will include: the reasons for Nextech’s failure or anticipated failure; the potential effect of the failure on the ability of Nextech to perform the Services; any steps that Nextech proposes to take in order to remedy the failure and mitigate the effect of the failure; if applicable, the anticipated length of the delay; and, if applicable, the date by which Nextech will return to on-scheduled performance. Subject to any delay permitted pursuant to Section 2.3, Nextech agrees that it will promptly implement all such steps at no additional cost to the Client.
2.5 Control, Facilities, Tools. Nextech will have complete control over its performance of the Services and will direct and supervise and do the Services to ensure conformance with this Agreement. Nextech will be solely responsible for all methods, techniques and procedures required to furnish all Deliverables, and the Services, except for those parts that are expressly stated as Client Items that are the responsibility of the Client.
2.6 Standards.
(a) Quality. Nextech will perform Nextech’s obligations under this Agreement with promptness and diligence, in a good and proficient manner, in accordance with applicable industry standards and practices, and with no less than the standard of professional skill, care and diligence customarily applied by contractors providing or performing similar work and providing similar services for similar projects in North America, but in any event at all times in accordance with this Agreement.
(b) Applicable Laws. Nextech will at all times comply with all Applicable Laws in connection with the performance of the Services. Nextech will obtain and at all relevant times maintain all work permits and other licenses, certificates, authorizations and approvals required under applicable law as are necessary for Nextech to perform lawfully all obligations under this Agreement.
2.7 Subcontracting. Nextech may subcontract this Agreement, the Services or any portion of it or them to any third party without the prior written consent of the Client, provided that, with respect to each subcontractor (a) Nextech will ensure that any subcontracted Services are provided in compliance with this Agreement by individuals qualified and competent to provide them (b) any breach, act or omission by any of Nextech’s subcontractors in connection with this Agreement will be deemed a breach, act or omission by Nextech, and Nextech will be fully responsible therefor.
2.8 Knowledge Transfer. Without limiting the generality of any other provision of this Agreement, and unless and to the extent that an Order Form expressly states otherwise, Nextech will provide a transfer (through documents, informal training or both, as reasonable and appropriate) of knowledge regarding the Services and Deliverables to the Client’s personnel as reasonably necessary for such personnel to understand and obtain the benefit of the Services and to understand and use the Deliverables as contemplated by this Agreement. For greater certainty, these obligations do not include formal training sessions, which will (if at all applicable) be specifically set out in an Order Form.
2.9 Malware. Nextech will use industry-standard, diligent and reasonable efforts (without limiting any efforts that may be expressed in any Order Form) to prevent a Deliverable from containing, and will not intentionally include in any Deliverable, any Malware, each as defined below. Upon notice by the Client that a Deliverable or other item of Work Product as delivered to the Client contains Harmful Code or a Lock (a) to the extent the Deliverable consists of Nextech’s or its subcontractors’ original work, Nextech will promptly, at its own cost or expense, repair or replace the Deliverable or item of Work Product so that it does not contain the Malware; and (b) to the extent the Deliverable consists of third party materials (including open source software), Nextech will work with the Client to remove or repair the Deliverable to mitigate against the Malware.
ARTICLE 3 – FEES
3.1 Fees. In consideration of Nextech performing the Services, delivering the Deliverables, and carrying the same through Acceptance, if applicable, all in accordance with this Agreement, the Client will pay to Nextech the amounts set out in the relevant Order Form.
3.2 Invoices. Unless an Order Form provides otherwise, Nextech will invoice monthly for all fees and expenses then due and payable under each Order Form, Net 30 days.
3.3 Disputed Charges. Notwithstanding any other provision of this Agreement, if the Client disputes any fees or expenses included in an invoice then the Client will pay the undisputed fees or expenses specified in the invoice and Nextech and the Client will cooperate with each other in an attempt to resolve the dispute.
3.4 Taxes. The Client will be responsible for paying any applicable goods, services, or value added taxes on any Services and Deliverables it receives under this Agreement, which will be invoiced by Nextech hereunder. The Client may not, except to the extent required by Applicable Law, withhold any amounts on payments to be made hereunder. If the Client believes it has any obligation to withhold any amount under Applicable Law, it will notify Nextech thereof and will cooperate in good faith with Nextech in its efforts, to the extent permitted by applicable law, to recover any such amounts from the applicable authorities.
3.5 Currency. Unless otherwise stated in an Order Form, Nextech will invoice the Client in American dollars (USD).
3.6 Entire Compensation. This Article 3 expresses the entire compensation of Nextech for its performance hereunder, including the Services and the delivery of the Software. Nextech will be fully responsible for all cost overruns and unanticipated expenses or costs relating to Services, and the Client will not be obligated to pay any fees or expenses in excess of the amounts specified in an Order Form. Unless an Order Form states otherwise that some portion of the Order Form is paid on a time and material basis, all fees are fixed regardless of the effort expended by Nextech in compliance with this Agreement. Where an Order Form states that the fees are paid on a time and material basis, then (a) Nextech will ensure that all anticipated rates are set out in the applicable Order Form and are inclusive all overages, extra charges and other amounts, (b) Nextech will ensure that all anticipated materials are set out in the applicable Order Form and provide a non-binding but reasonable-efforts-basis budget therefor, and (c) where the Order Form provides a “not-to-exceed” amount, regardless of the effort spent, Nextech will not be entitled to payment over and above such amount without the express written consent of the Client.
ARTICLE 4 – ACCEPTANCE TESTS
4.1 Acceptance Tests. As part of the Services, the Parties will prepare and conduct Acceptance tests and reviews described in this Agreement to confirm that the Deliverables (and the Services through which they are or were delivered) are operational, reliable, and meet or exceed the Specifications, and to repair and resolve any Defects. Without limiting the foregoing the Parties will, via these Acceptance tests:
(a) demonstrate the suitability and workability of the Deliverable;
(b) where applicable, verify correct integration, interconnectivity and interoperability of all components of the Deliverable, including that it is integrated, interconnected and interoperable with any other related hardware, software and processes of the Client in accordance with the Client Items; and
(c) verify the functionality of the Deliverable against the Specifications, including any (i) capacity and performance requirements, (ii) import, export and backup operations, (iii) data translation and interoperation functions.
4.2 Development and Approval of Acceptance Test Plans. Nextech will prepare and deliver to the Client Acceptance test and review plans (collectively, “Acceptance Test Plans”) for each of the Deliverables, and the following provisions apply:
(a) Plan Content. Nextech will include in the Acceptance Test Plans the testing objectives, requirements, environment, schedule, methodologies, test data generation and analysis tools, protocols, procedures, and Acceptance Criteria, and will (i) base the Acceptance Test Plans on industry practices, and (ii) include distinct subtests for individual Deliverables where appropriate.
(b) Deadline. Nextech will deliver each Acceptance Test Plan reasonably in advance of the commencement of the relevant test.
4.3 Timing. Nextech will submit relevant Deliverables to the Client for Acceptance in accordance with a timetable, either set forth in the applicable Order Form or otherwise agreed in writing by the Parties acting reasonably (or, failing such agreement, such reasonable period determined by Nextech as necessary to meet any timetable set out in the Order Form with a reasonable period of time for the Client personnel and Order Form Team Members who are conducting the Acceptance Test Plans a reasonable period to do so). The Parties will cooperate in Acceptance testing and review.
4.4 Conduct of Acceptance Test Plan. Unless an Order Form provides otherwise, the Client will conduct Acceptance Test Plans and will promptly deliver all results to Nextech, and the following provisions will apply:
(a) Testing. When a Deliverable is submitted for Acceptance testing, the Client will test or review (as applicable) the Deliverable in accordance with that Acceptance Test Plan within the time period set out in the Order Form or such Acceptance Test Plan, and failing any such time period being set out, ten Business Days (in each case, the “Testing Period”).
(b) Steps.
(i) Conformance. If a Deliverable conforms to the Acceptance Criteria, then the Client will give a written acceptance notice for the Deliverable to Nextech.
(ii) Non-conformance. If a Deliverable does not conform to the Acceptance Criteria, then (A) the Client will give to Nextech a written notice describing with reasonable specificity the nature of the nonconformity and (B) Nextech will revise the Deliverable at its own expense (unless otherwise provided in the Order Form) so that it conforms to the Acceptance Criteria and then resubmit the Deliverable for further Acceptance testing or review (as applicable) under this provision.
(iii) Deeming Provision. The Client will be deemed to have delivered a notice of acceptance unless it delivers a notice of non-conformance within the applicable Testing Period.
(iv) Iteration. This process will be repeated, where applicable, for each Deliverable until the Deliverable passes the relevant Acceptance Test Plan, unless the Parties follow one of the courses of action in Section 4.4(b)(v) below.
(v) Consequences of Failure. If a Deliverable fails to pass Acceptance more than three times, then the Parties may take one or more of the following actions by way of mutual written consent: (A) extend the time for the Acceptance Test Plans; or (B) negotiate a revision of the Acceptance Criteria for the Deliverable and the fees payable for the Deliverable.
ARTICLE 5 – LICENSE AND OWNERSHIP
5.1 License to Deliverables. Nextech hereby grants to Client a limited non-exclusive non-sublicensable and non-transferrable license, for the Term of this Agreement, to use the Deliverables, throughout the Client’s enterprise in accordance with the terms of this Agreement, including without limitation the Acceptable Use Policy.
5.2 Title to Deliverables. Nextech and its third-party licensors retain all rights, including Intellectual Property Rights, to the Deliverables. Client will not acquire any rights, including without limitation Intellectual Property Rights and registrations, in the Deliverables. All rights not expressly granted to Client hereunder are expressly reserved. The Deliverables are licensed and not sold. Client acknowledges and agrees that, by operating the Deliverables, benchmark results and usage data may be collected by Nextech.
5.3 Title to Client Materials. Title to any documents, equipment, materials, data, Client Items or Intellectual Property Rights supplied by or on behalf of the Client to or for the benefit of Nextech in relation to any Order Form and any Client Content streamed or otherwise displayed on the Nextech Service or Software (collectively, the “Client Materials”) will remain with the Client at all times throughout the term of this Agreement. At no time will title to the Client Materials pass to Nextech.
(a) License to Use. Client hereby grants Nextech a non-exclusive, royalty-free, worldwide license during the Term to use the Client Materials to perform under this Agreement and expressly not for any collateral purpose.
(b) Clarification. For greater certainty, where the Client Materials include materials licensed to the Client by a third party, Nextech’s access to or use thereof may be conditional upon Nextech’s execution of a prescribed form of written agreement.
(c) Return. Nextech will return to the Client each of the Client Materials in Nextech's possession or control: (i) at any time upon request by the Client (on the Client’s understanding that, if the Client Material is an Client Dependency, Nextech may thereby be prevented from performing hereunder); (ii) after Nextech's completion of the work for which the Client Material was provided or on behalf of the Client to or for the benefit of Nextech; and (iii) upon expiration or termination of the relevant Order Form or this Agreement.
5.4 Feedback. Without limiting Section 5.3, Client agrees that any of Client’s comments, suggestions, ideas, impressions, and improvements relating to the Deliverables provided by or on behalf of Client (collectively, “Feedback”) may be used freely by Nextech, including in future versions, maintenance or support, updates to the Deliverables, or otherwise through commercial or non-commercial exploitation, without any compensation or notice to Client.
5.5 Delivery. Unless stated otherwise in an Order Form, where physical delivery is required, the Client will be responsible for all shipping and delivery costs of the Deliverables, and Nextech will select an appropriate method of delivery as may be required by this Agreement, including to meet any project timetables. Where electronic delivery is required, Nextech will use the method for electronic delivery determined in or through the Order Form or, failing that, a commercially reasonable method selected by the Client.
5.6 Third Party or Open Source IP. The Client acknowledges and agrees that Nextech’s project methodology includes the use of third party and open source Intellectual Property Rights, and that Nextech may include the same in a Deliverable without the Client’s express prior written consent by concurrently delivering the applicable license agreement therefor and by complying at all times with such license. For greater certainty, this provision applies to “open source” or “free” software or materials, whether or not the license thereto is copyleft, provided that where any Software Deliverable is commercial off-the-shelf software, it shall be sufficient if the Documentation made available to the Client by Nextech contains a reference to the open source or free software used therein.
5.7 Outsourcing. Notwithstanding anything else in this Agreement, if the Client enters into a contract with a third party (or third parties) in which a third party manages all or a portion of the Client’s information technology resources (in this Section 5.7, an “Outsourcer”), the Client may sublicense the Client’s rights to use any licensed Deliverables and applicable Software through all or a portion of the Client’s license to such Outsourcer, provided that:
(a) the Outsourcer only uses the Deliverables and applicable software for the Client’s internal operations and not for the benefit of itself or another third party;
(b) the Outsourcer agrees to comply with the terms and conditions of this Agreement; and
(c) the Client provides Nextech with written notice that an Outsourcer will be using the Deliverables and applicable Software on the Client’s behalf.
ARTICLE 6 –CONFIDENTIALITY, SECURITY AND PERSONAL INFORMATION
6.1 Confidentiality. In connection with this Agreement, each Party (in this Article, the “Disclosing Party”) has furnished or may furnish or has made or will make available to the other Party (in this Article, the “Receiving Party”) Confidential Information. At all times during and after the term of this Agreement, the Receiving Party will protect the Confidential Information using the same degree of care as it would use to protect its own similarly confidential information, but in any event never less than a reasonable degree of care, and will take all reasonable steps to safeguard the Disclosing Party’s Confidential Information from unauthorized disclosure as set out in this Agreement.
6.2 Obligations. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as strictly necessary in the performance of its obligations under this Agreement or in enforcing or defending its rights or obligations under this Agreement (collectively, in this Article, the “Purpose”) or as expressly permitted by this Article. Without limiting the generality of the foregoing, the Receiving Party will not directly or indirectly do any of the following:
(a) use any of the Disclosing Party’s Confidential Information for any purpose other than the Purpose;
(b) copy or reproduce any of the Disclosing Party’s Confidential Information, except as strictly necessary to carry out the Purpose;
(c) disassemble or decompile any technology, software or hardware included in the Disclosing Party’s Confidential Information, or otherwise attempt to reverse engineer the design, function or, if applicable, source code of any such Confidential Information, except (i) as strictly necessary in carrying out the Purpose, and (ii) if this prohibition is limited or restricted in any way by any applicable law, it will only apply to the maximum extent permitted by such law; or
(d) disclose any of the Disclosing Party’s Confidential Information except in the following
(i) limited disclosure strictly to those of the Receiving Party’s directors, officers, consultants, legal representatives, accountants, advisors and personnel and permitted subcontractors (i) to whom disclosure is necessary to carry out the Purpose, and (ii) from whom the Receiving Party is owed legally-binding obligations of confidentiality at least as strict as those set out in this Agreement (collectively, in this Article, the “Further Recipients”), provided that, at all times, the Receiving Party will be responsible to the Disclosing Party for the acts and omissions of the Further Recipients as if such acts and omissions were its own, or
(ii) disclosure limited strictly to the extent the Receiving Party or any of its Further Recipients is required (including, without restriction, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other similar process) by any law to disclose any of the Disclosing Party’s Confidential Information, provided that it (unless prohibited by such applicable law) gives the Disclosing Party advance written notice as soon as practicable in the circumstances so that the Disclosing Party may contest the disclosure or seek an appropriate protective order, and further provided that it cooperates reasonably and in good faith with the Disclosing Party in its efforts to prevent, restrict or contest such required disclosure.
6.3 Return or Destruction. Upon termination of this Agreement or upon the written instruction of the Disclosing Party, the Receiving Party will return or destroy all originals and copies in any form of the Disclosing Party’s Confidential Information in its or its Further Recipients’ possession or control and will destroy or cause to be destroyed all originals, copies or other reproductions or extracts of such Confidential Information. For the purposes of this Section 6.3, information stored in electronic form will be deemed to be destroyed when the charged Party performs a commercially reasonable application or operating system level delete function with respect to such data, provided that it does not thereafter directly or indirectly perform or permit any recovery or restoration the same by any means (including by way of undeletion, archives, backups or forensics). Receiving Party will provide Disclosing Party with a certificate confirming the deletion of all Confidential Information in its possession pursuant to this Section 6.3. Each Party will be responsible for ensuring that its Further Recipients fully comply herewith.
6.4 Ownership. Except as set out in this Agreement, no Party grants to the other any right, title or interest in or to its Confidential Information.
6.5 Exceptions. The obligations of confidentiality set out in this Article will not apply in respect of uses or disclosures of information where:
(a) the Disclosing Party consents in writing; or
(b) the Receiving Party can establish with documentary evidence that, other than as a result of a breach of this Agreement, the information:
(i) is available in the public domain;
(ii) was disclosed to it by a third party without violating confidentiality obligations; or
(iii) was already independently known by it or was subsequently and independently developed by it;
in each case without any direct or indirect use or access to such Confidential Information whatsoever.
6.6 Information Security Management. In addition to any particular requirements set out in any Order Form, Receiving Party will implement and maintain an information security management program with standards that are no less rigorous than accepted industry practices, and will comply with all Applicable Laws to protect Disclosing Party’s Confidential Information from unauthorized access, destruction, use, modification, or disclosure. At a minimum, such program will implement physical, technical, and administrative information safeguards that provide for (a) the protection of business facilities, paper files, servers, computing equipment, cryptographic keys and audit logs, including all mobile devices and other equipment with information storage capability, and backup systems; (b) network, application (including databases), and platform security including policy-based security hardening; (c) business systems designed and configured to optimize security; (d) secure, encrypted transmission and secure, encrypted storage where appropriate; (e) authentication and access control mechanisms; (f) security event monitoring using auditable logs (g) personnel security, including use of unique, robust passwords and periodic training on how to comply with the information security management program; (h) implementing software and hardware security patches within a reasonable time after release based on the severity of the security issue; and (i) selecting and using data centers that satisfy industry-standard security requirements. Receiving Party will regularly test and monitor the effectiveness of its security practices and procedures, and will evaluate and adjust its information security program in light of the results of the testing and monitoring, any material changes to its operations or business arrangements, or any other circumstances that Receiving Party knows or reasonably should know may have a material effect on its information security program. If Receiving Party experiences an actual or suspected security breach in relation to Disclosing Party’s Confidential Information, Receiving Party will notify Disclosing party of the same as soon as practicable after it becomes aware of it.
6.7 Personal Information. Without limiting any of the foregoing, each Receiving Party will use all reasonable efforts to (a) guard against unauthorized access to, use and disclosure of all Personal Information received by it as part of the Confidential Information; and (b) fully comply with all Applicable Laws applicable to the Disclosing Party’s Confidential Information or to its Personal Information, including the Personal Information Protection and Electronic Documents Act (Canada), as it may be amended or replaced by successor legislation from time to time, and all regulations promulgated thereunder.
6.8 Press Release. Notwithstanding the confidentiality provisions above, the Parties may issue a public announcement, issue a press release, conduct media interviews, or conduct other publicity activities announcing the existence of the business relationship between the Parties and the general nature of the Services being provided by Nextech to the Client. As such, the Parties hereby grant one another a reciprocal and limited license to use each other’s name and trademarks in any such publicity activities provided that such use is at all times in compliance with any brand guidelines provided for such brand assets.
6.9 Marketing Materials. Client hereby irrevocably gives Nextech and each of its employees and agents and all of their respective agents, heirs, executors, administrators, successors and assigns (collectively including the Company, the “Authorized Persons”) its permission and consent, and grants to the Authorized Persons the unrestricted, worldwide, and irrevocable right: (a) to film, record and photograph the Events (the "Recordings") including the participants of the Events (the “Participants”) and their respective names, images, likenesses, appearances, and voices as they appear in the Recordings; and (b) to use, modify, adapt, create derivative works from, copy, publish, display, exploit, telecommunicate and distribute the Recordings for marketing and promotional purposes in any medium or format whatsoever now existing or hereafter created (all such promotional works, the “Marketing Materials”).
6.10 Use of Marketing Materials. The Client acknowledges and agrees that: (a) the Authorized Persons will have the unlimited right to change the Recordings and to rearrange or transpose the Participants’ likenesses with other materials of any kind; and (b) neither the Client or the Participants will receive any further consideration relating to any Authorized Person’s exercise of their rights relating to the Recordings or the Marketing Materials.
6.11 Ownership of Marketing Materials. Except with respect to any Client Materials and as otherwise limited in this Agreement, the Client agrees that Nextech is and will be the sole and exclusive owner of all right, title, and interest in and to the Recordings and Marketing Materials, including all copyrights and other Intellectual Property Rights therein, in perpetuity worldwide. The Client further hereby, (a) assigns, transfers, and otherwise conveys to Nextech, irrevocably and in perpetuity, all of their right, title, and interest in and to, if any, the Recording and the Marketing Materials, including all copyright and other Intellectual Property Rights; and (b) irrevocably waive any and all claims it may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral in the Recordings or the Marketing Materials wherever such rights are recognized in favour of Nextech. Client hereby grants Nextech a perpetual, non-exclusive, royalty-free, worldwide license to use the Client Materials for the purpose of advertising and promoting Nextech its business, products and services.
6.12 Embargo Date. Nextech represents and warrants that it will not release any Recordings or Materials containing Recordings from a particular Event prior to the Embargo Date for such Event, as set out in the Order Form.
ARTICLE 7 - REPRESENTATIONS, WARRANTIES AND LIABILITY
7.1 Corporate Authorization and Status. Each Party represents and warrants as follows:
(a) it has full power and authority to enter into and perform its obligations under this Agreement;
(b) the individual or individuals signing this Agreement on behalf of the Party has or have been properly authorized and empowered to enter into this Agreement;
(c) it is in good standing in its jurisdiction of incorporation and that all of its constating and organizational documents are complete, fully executed and in order; and
(d) such Party’s execution and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that such Party now or in the future owes to any other person.
7.2 Client. Client represents, warrants, and covenants as follows:
(a) Client is the sole owner or has a valid license to all Intellectual Property Rights in and to the Client Materials necessary to grant the rights provided under this Agreement;
(b) the Client Materials do not violate any applicable laws including without limitation any applicable deceptive trade practices, fair competition, or consumer protection laws;
(c) nothing in the Client Materials advocates for any illegal activity, is defamatory, or otherwise violates the legal rights of any third-party, howsoever arising;
(d) Client has obtained fully executed Marketing and Recording Releases from each Participant in the Event in substantially the same form as the Marketing and Recording Release attached to this Agreement as Schedule B and will provide Nextech with copies of such executed releases upon the request of Nextech
7.3 Nextech. Nextech represents, warrants, and covenants as follows:
(a) Intellectual Property Rights.
(i) Nextech is the sole owner or has a valid license to all Intellectual Property Rights in and to the Deliverables necessary to deliver them in accordance with the provisions of this Agreement.
(ii) The Deliverables will be delivered with the Intellectual Property Rights necessary to permit the Client to take possession thereof in accordance with Article 5.
(b) Services. The Services will be performed by persons who have the qualifications, knowledge, skill and ability to perform these services.
(c) Deliverables.
(i) All Software contained in any Deliverables will be free and clear of all Claims, liens, charges and encumbrances.
(ii) Each Deliverable, as Delivered, will conform to, and when used in accordance with its Documentation will function, operate, perform and generate results in accordance with, the Acceptance Criteria for the Deliverable throughout the Term.
(iii) For greater certainty, the warranty set out in Section 7.2(c)(ii) does not apply to Defects in a Deliverable to the extent they are caused by: (i) use of any Deliverable in breach of this Agreement; or (ii) modification of the Deliverable by a person other than Nextech or someone for whom Nextech is responsible hereunder.
7.4 Disclaimers. The representations and warranties expressly set forth in this Agreement are in lieu of all other conditions, representations and warranties (express, implied or statutory), including representations and warranties of merchantable quality or fitness for a particular purpose. To the extent that any Deliverable (including the hosted elements thereof) depends on the public internet, (a) any representation made regarding access, performance, speeds, reliability, availability, use or consistency of thereof is on a “commercially reasonable efforts” basis when it relates to the public internet; and (b) without limiting any obligations relating to security hereunder, data, messages, information or materials sent over the public internet may be intercepted by third parties.
7.5 Indemnity.
(a) Nextech Indemnities. Nextech will defend, indemnify and hold harmless the Client, its subsidiaries and Affiliates, and their respective directors, officers, employees, personnel, representatives and agents (collectively, the “Client Indemnitees”) from and against any and all of the following Claims:
(i) Claims arising from such matters as may be identified for specific Nextech indemnity under any Order Form;
(ii) Claims that any Deliverables or Services provided by or on behalf of Nextech hereunder directly or indirectly infringe any third party Intellectual Property Rights enforceable in the United States or Canada, except to the extent the Claim arises from: (A) the Client’s use of an altered version of the Deliverable, unless the alteration was carried out by or on behalf of Nextech, (B) the Client’s use of a non-current version of any Software incorporated by or on behalf of Nextech in any Deliverable, provided Nextech has made a current version available to the Client that materially complies with the Specifications, or (C) the use of the combination of the Client’s equipment or other hardware or software not provided by or on behalf of Nextech with the Deliverable or approved in writing by Nextech (which approval will be deemed if such other hardware or software is expressly contemplated in this Agreement); and
(iii) Claims directly or indirectly arising from, connected with or relating to any fraud, breach of Applicable Law, gross negligence or wilful misconduct by Nextech in connection with its performance hereunder;
Notwithstanding the foregoing, and without limiting the generality of any other provision herein benefiting Nextech, a Claim is not indemnifiable under this Section 7.4(a) to the extent Nextech is prejudiced by (i) the Client’s failure to promptly notify Nextech of any indemnified Claim, or (ii) the Client’s breach of Section 7.4(c).
(b) Client Indemnities. The Client will defend, indemnify and hold harmless Nextech, its subsidiaries and Affiliates, their respective directors, officers, employees, personnel, representatives and agents (collectively, the “Nextech Indemnitees”) from and against any and all of the following Claims:
(i) Claims arising from such matters as may be identified for specific Client indemnity under any Order Form;
(ii) Claims that any Client Materials directly or indirectly infringe any third party Intellectual Property Rights enforceable in the United States or Canada, except to the extent the Claim arises from: (A) Nextech’s use of an altered version of the Client Materials, unless the alteration was carried out by or on behalf of the Client or its personnel, or (B) use of a non-current version of any Software incorporated by or on behalf of the Client in any Client Materials, provided the Client has made a current version available to Nextech; and
(iii) Claims directly or indirectly arising from, connected with or relating to Client’s breach of this Agreement, its breach of Applicable Law, or its fraud, gross negligence, or wilful misconduct in connection with its performance hereunder;
Notwithstanding the foregoing, and without limiting the generality of any other provision herein benefiting the Client, a Claim is not indemnifiable under this Section 7.4(b) to the extent the Client is prejudiced by (i) Nextech’s failure to promptly notify the Client of any indemnified Claim, or (ii) Nextech’s breach of Section 7.4(c).
(c) Procedure. In each of Section 7.4(a) and Section 7.4(b), the Client Indemnitees or Nextech Indemnitees, as the case may be, will give the applicable indemnifying party control over the defence of and settlement negotiations with third parties relating to all Claims, provided that:
(i) the Client or Nextech, as the case may be, retains the right to participate in the defense of and settlement negotiations relating to all Claims with counsel of their own selection at their sole cost and expense; and
(ii) the applicable indemnifying party will not settle any Claims without the prior written consent of the Client or Nextech, as the case may be, which consent will not be unreasonably withheld, conditioned or delayed (except that the Client or Nextech, as the case may be, may in their discretion withhold their consent if a proposed settlement requires that any of the Client Indemnitees or Nextech Indemnitees, as the case may be, be parties to the settlement or imposes any restriction, obligation or liability on any of the Client Indemnitees or Nextech Indemnitees, as the case may be).
(d) Infringement Procedure. If an indemnified Claim pursuant to Section 7.4(a)(i) is likely or imminent, or such a Claim has occurred, then Nextech may, at its expense, promptly do one or more of the following to the extent commercially practicable:
(i) procure for the Client from the third party making the Claim the right to continue using the Software including the allegedly infringing Deliverable, part or component thereof;
(ii) reconfigure the Software, or re-work or re-deliver the allegedly infringing component, part or Deliverable, to make it non-infringing; or
(iii) substitute other goods, services or software of similar capability that would otherwise comply with this Agreement but that do not infringe such third party Intellectual Property Rights, and
(e) Indemnities Survive. The rights of the Client and Nextech to seek indemnification on behalf of the Client Indemnitees and Nextech Indemnitees under the indemnities set out in Section 7.4(a) and Section 7.4(b), respectively, will survive at all times during and after the term of this Agreement.
7.5 Limitations and Exclusions of Liability. Except for a breach of Article 6 or a Claim that is subject to an indemnity provided in Section 7.4, in no event will:
(a) either Party be liable for any Claims made by the other Party for any special, indirect, incidental, punitive or consequential damages of whatsoever kind and howsoever arising, including loss of business opportunities, profits or revenues, whether or not the possibility of such damages or loss of opportunities, profits or revenues has been disclosed to the other Party in advance or could have been reasonably foreseen by such Party, and whether or not any limited remedy specified in this Agreement is deemed to have failed of its essential purpose;
(b) Nextech’s aggregate liability for direct damages under any particular Order Form exceed the total amount of fees actually paid by the Client to Nextech under the particular Order Form during the prior six (6) month period immediately preceding the date upon which the Claim arose.
ARTICLE 8 – TERM, DEFAULT AND TERMINATION
8.1 Term. This Agreement will be effective as of the Effective Date and will continue for the Term indicated on the Order Form, or if none is stated, until there remains no further outstanding Services to be performed pursuant to any existing Order Form (the “Term”). For greater certainty, the completion, expiration, or termination of any or all work hereunder will not, by itself, terminate this Agreement.
8.2 Termination. Each Order Form under this Agreement may be terminated as follows:
(a) Convenience. Unless an Order Form expressly states that it may not be so terminated, by Nextech for its sole convenience upon delivery of sixty (60) calendar days prior written notice of termination to the Client;
(b) Default. By either Party upon written notice if the other Party (or a person for which such other Party is responsible) is in default of or breaches any provision of the particular Order Form or this Agreement and such breach or default (i) is incapable of cure within a fifteen (15) calendar day period from the day that the terminating Party delivers notice to the breaching Party specifying the particulars of such breach, or (ii) continues for such fifteen (15) calendar day period without cure by the other Party, and in each case “cure” means the full rectification, which shall be determined in the reasonable discretion of the affected Party, of such breach or default in compliance;
(c) Non-Payment. By Nextech upon written notice if the Client does not pay any invoices when due and payable and fails to cure such breach within seven (7) calendar days’ from the day that Nextech delivers notice of such breach to the Client, subject to Section 3.3; and
(d) Insolvency or Cessation. By either Party upon written notice if the other Party (i) is bankrupt, insolvent, or unable to discharge its liabilities as they become due; (ii) commences, maintains or is subject to any proceedings for the benefit of insolvent debtors or for protection from its creditors or relating to its liquidation, dissolution or winding-up or insolvency or the appointment of a receiver, receiver-manager or similar officer or custodian for such Party or all or any material part of its assets or business; (iii) makes an assignment for the benefit of all or substantially all of its creditors; (iv) suspends or ceases, or threatens to suspend or cease, to carry on its business in the normal course; or (v) is subject to any liquidation, winding-up or dissolution.
8.3 Obligations upon Expiration or Termination. The Parties will remain responsible and liable for all of their respective obligations and liabilities accrued before the expiration or termination of any Order Form or this Agreement. Upon the expiration or termination of any Order Form or this Agreement for any reason whatsoever, and without limiting any remedies available to the Parties:
(a) the Client will pay to Nextech all fees for services properly performed and Deliverables delivered to and Accepted by the Client prior to the effective date of termination, provided that, with respect to any fees that are “fixed price”, the amount payable to Nextech will be a portion of the total amount payable, as determined by the Parties acting reasonably having regard to the services performed and Deliverables completed and accepted by the Client; and
(b) Nextech will deliver to the Client all originals and copies, in whatever form or medium, of all completed Deliverables then existing and all work-in-progress regarding those Deliverables for which the Client has paid the relevant payments hereunder.
8.4 Survival. Notwithstanding any other provision of this Agreement, those provisions of this Agreement that by their nature ought to survive any expiration or termination of this Agreement, and all other provisions necessary to their interpretation or enforcement, will so survive and will remain in full force and effect and be binding upon the Parties as applicable, including without limitation Section 2.7, Section 3.4, Section 3.5, Article 5, Article 6, Section 7.2(c), Section 7.3, Section 7.4, Section 7.5, Article 8, Article 9 and Article 10.
ARTICLE 9 – DISPUTE RESOLUTION
9.1 Dispute Resolution. Each Party agrees to work co-operatively with the other Party at all times in good faith and to take all reasonable steps to avoid delays in order to ensure each Order Form is performed in a timely manner. Each Party will advise and encourage its personnel, employees agents and permitted subcontractors to attempt to resolve any Disputes at the first level and at the first opportunity and to develop work-around plans to avoid delays. The Parties agree that unresolved Disputes will be resolved by arbitration at Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration. Any Party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in Vancouver, British Columbia. The arbitration shall proceed in accordance with the provisions of the Arbitration Act (British Columbia). The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties.
9.2 Governing Law and Jurisdiction: This Agreement and all Disputes will be governed by, and be construed in accordance with, the laws of British Columbia and the laws of Canada applicable in British Columbia, which will be deemed to be the proper law of this Agreement. All unresolved Disputes will be resolved by the courts of British Columbia sitting in the City of Vancouver, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts for those purposes. Notwithstanding the foregoing, (a) each Party may seek injunctive relief in any court of competent and appropriate jurisdiction, and (b) the Parties hereby exclude the application of the United Nations Convention on the International Sale of Goods, pursuant to Article 6 of Schedule 1 to the International Sale of Goods Act, RSBC 1996 c. 236.
ARTICLE 10 - INTERPRETATION
10.1 Interpretation. In this Agreement, unless expressly indicated otherwise:
(a) a reference to “this Agreement” or “herein”, “hereof”, “hereunder” and other similar terms refers to this Agreement (including the Schedules thereto) as a whole, and not just to the particular provision in which those words appear,
(b) headings are for convenience of reference only, do not constitute substantive matter and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions,
(c) words importing: (i) persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations; (ii) the singular number also include the plural and vice versa; and (iii) a gender include all genders,
(d) references to days, weeks, months, quarters or years means calendar days, weeks, months, quarters or years, respectively,
(e) references to currency or amounts payable are references to the lawful money of Canada,
(f) “person” includes an individual, corporation, partnership, government, joint venture, association, trust, unincorporated organization, society and any other legal entity,
(g) A Party’s “discretion”, “option”, or any variation thereof or similar language means such Party’s sole, absolute and unfettered discretion or option,
(h) the word “or” is not exclusive, whether or not used with the phrase “and/or”,
(i) “law” includes common law, equity, statutes, ordinances, by-laws, regulations and mandatory guidelines enforceable by a governmental or regulatory authority, and reference to a specific law includes all regulations and mandatory guidelines made under the law and all amendments thereto, or replacements thereof, in force from time to time;
(j) the word “including”, or similar language, is not limiting, whether or not phrases such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto, and
(k) “Section” means a section, subsection, paragraph or sub-paragraph of this Agreement and “Article” means a captioned part or article of this Agreement, unless the reference thereto appears in an Order Form or other Schedule, in which case it means an article, section, subsection, paragraph or subsection of such Order Form or other Schedule.
10.2 Joint Drafting. The Parties have jointly contributed to the drafting of this Agreement and other documents executed and delivered by the Parties under this Agreement. Accordingly, it is the intention of the Parties that the principle of contra proferentum will not apply to the interpretation of this Agreement or other documents executed and delivered by the Parties under this Agreement and neither this Agreement nor any such other documents will be interpreted in favour or against either Party on the basis that the Party drafted particular provisions of this Agreement or such other document.
10.3 English Language. The Parties have expressly requested and required that this Agreement and all related documents be drawn up in the English language, and any translations of this Agreement or related documents are for convenience only and are not binding on the Parties. Les Parties ont expressément demandé et exigé que le présent accord et tous les documents connexes soient rédigés en anglais. Toute traduction de cet accord ou de documents connexes est uniquement fournie à des fins de commodité et ne lie pas les Parties.
ARTICLE 11 – MISCELLANEOUS
11.1 Non-Solicit. Client will not, without prior written consent from Nextech, directly or indirectly (whether individually, jointly or in conjunction with any person) in any manner (including any individual, firm, association, syndicate, company, corporation, or other business enterprise, as principal agent, shareholder, officer, independent contractor, or in any other manner whatsoever), during the term of this Agreement and for a period of twelve (12) months thereafter seek in any way to persuade or entice any person to terminate an employment, advisory or consulting position with Nextech, or hire or retain the services of any such person, provided that nothing in this provision shall prevent Client from directly or indirectly hiring or retaining any person pursuant to general, public job advertisements that are not targeted to Nextech’s personnel
11.2 Force Majeure. Neither Party will be responsible or liable for any delay or failure to perform due to a Force Majeure Event, provided that the Party so affected (a) notifies the other Party as soon as practicable in the circumstances of the nature and anticipated duration of the Force Majeure Event as well as the steps it intends to take to overcome the Force Majeure Event; and (b) takes all reasonable steps to prevent and minimize the delay or failure to perform. Notwithstanding the foregoing, a lack of credit or financing will not qualify as an event of Force Majeure for the Client, nor will this Section 11.1 operate to permit non-payment by the Client in respect of any work that Nextech has performed prior to Nextech receiving notice from, or giving notice to, the Client in respect of a Force Majeure Event.
11.3 Assignment. Neither Party will assign this Agreement to another party without the prior written consent of the other Party, which consent may be unreasonably withheld, conditioned or delayed in such other Party’s sole discretion. Notwithstanding the foregoing, Nextech may assign this Agreement to an Affiliate or to an acquirer or all or substantially all of its assets or undertakings without such consent of the Client.
11.4 No Agency or Partnership. The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. At all times Nextech will conduct Nextech’s business and affairs in a manner consistent with maintaining its independent contractor status. Nothing in this Agreement or done under this Agreement in any way limits, prohibits or restricts either Party from engaging in discussions or entering into agreements with any other person at any time regarding similar services, deliverables and other work product as those performed, delivered or provided under this Agreement, subject always to Article 6.
11.5 Severability. If any of the provisions or part thereof contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality, or enforceability of the remaining provisions or parts thereof contained herein will not be in any way affected or impaired thereby.
11.6 Amendment and Waiver. This Agreement may not be amended except by a written instrument having direct reference to this Agreement, and in either case must be signed by both Parties. No indulgence or forbearance by either Party will constitute a waiver unless the waiver is expressed in writing and signed by the Party granting the waiver, in which case the waiver will be effective only in the specific instance and for the specific purpose for which it is given.
11.7 Further Assurances. Each of the Parties agree to execute and deliver at the request of the other Party all such further documents, deeds and instruments, and will do and perform all such further acts as may be reasonably necessary to give full effect to the intent and meaning of this Agreement.
11.8 Remedies Cumulative. The remedies of the Parties set out in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, this Agreement, any other agreement between the Parties or otherwise.
11.9 Enurement. This Agreement will enure to the benefit of and be binding on the successors and assigns of the Client and on the successors and permitted assigns of Nextech.
11.10 Notices. Whenever in this Agreement it is required or permitted that notice or demand be given or served by either Party to or on the other, such notice or demand will be in writing and will be deemed delivered upon the earlier of (a) actual receipt by the intended recipient or (b) delivery in person or by reputable overnight courier, in each case to the Client Contact denoted in the Order Form.
[ End of Terms of Service ]
