“Deliverable(s)” means any software, documentation and/or other materials prepared by QuickSilk for Customer as described in The Order Form or the SOW;
“Order Form” means a document describing the Services and Deliverables which the Customer wishes QuickSilk to provide.
“Services” means the services to be provided by QuickSilk to Customer or the development of Deliverables to be carried out by QuickSilk for Customer, all as described in the Order Form; and
“SOW” means a detailed statement of work for services and/or Deliverables that is documented and agreed to by the parties based on an Order Form as the first step in the engagement.
2. Services and Orders.
(a) The Services to be provided by QuickSilk are those set out in an Order Form referring to or incorporating by reference this Agreement. Any access to and use of the QuickSilk software service and platform by Customer will be subject to the terms of the Software as a Service Agreement found on the QuickSilk website (the “SaaS Agreement”). To the extent there is any conflict between the terms of this Agreement and the SaaSSoftware as a Service, or SaaS, is a licensing model that describes software provided on a subscription basis. SaaS software is hosted by the software provider. Subscriptions are typically monthly, or annual. Agreement, the SaaS Agreement will govern in respect of the software service and platform.
(b) If the Customer wishes additional service offerings a new Order Form specifying such must be prepared and executed.
(c) Notwithstanding the generality of the foregoing, if in preparing the SOW QuickSilk determines that the scope of the SOW differs significantly from QuickSilk’s understanding of what was requested by Customer and/or from what was described on the Order Form, QuickSilk will promptly notify the Customer and unless agreement is reached on revising the SOW to meet a mutual understanding, the Order Form will be terminated and any payments made in advance in respect of the Services requested under the Order Form will be reimbursed by QuickSilk to Customer.
3. Customer Obligations. Customer acknowledges and agrees that the performance of the Services and development of Deliverables may be dependent on cooperation from Customer. Accordingly, in addition to any specific responsibilities set out in the Order Form or the corresponding SOW, Customer shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by QuickSilk, to allow QuickSilk to perform the Services and develop the Deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; and (iii) ensure that QuickSilk has available to them personnel familiar with Customer’s requirements and with the expertise necessary to permit QuickSilk to undertake and complete the Services and Deliverables development. Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on QuickSilk’s performance of its activities under this Agreement or the SOW and QuickSilk shall not be liable for any delay to the extent caused by Customer’s failure to fulfill any of its obligations or requirements under this Agreement or the SOW. If Services are performed on Customer’s premises or if QuickSilk needs to attend at Customer’s premises for the development of the Deliverables, Customer shall provide to QuickSilk such workspace, computers, equipment and software as is reasonably required by QuickSilk for the performance of the Services and the development of the Deliverables. Customer shall designate a project management contact for the purposes of communication with QuickSilk. The project management contact shall be the primary point of contact for Customer with QuickSilk for matters relating to the provision of Services and development of Deliverables.
4. Fees and Payment. Customer shall pay QuickSilk the fees set forth in the Order Form. Customer shall reimburse QuickSilk for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by QuickSilk in the performance of any Services or development of any Deliverables, provided that such expenses are approved in advance in writing by Customer. The fees for Services and development of Deliverables shall exclude all applicable taxes. Late payments will incur interest at a rate equal to 1.5% per month (19.57% per annum) or the highest rate permitted by applicable law, whichever is lower. QuickSilk shall invoice Customer for fees for Services as specified on the Order Form and such invoices are payable as specified on the Order Form.
5. Staffing and Conduct. QuickSilk shall be entitled, in its sole discretion, to determine the method and means for performing the Services and developing the Deliverables. QuickSilk shall have the right to determine which of its employees shall be assigned to perform the Services and develop the Deliverables, and to replace or reassign such employees during the term hereof. Customer acknowledges and agrees that QuickSilk may retain the services of independent consultants from time to time to perform, or to assist QuickSilk in performing, Services and developing Deliverables. QuickSilk personnel and/or subcontractors shall remain under the direction and control of QuickSilk. QuickSilk shall in the performance of any Services and development of any Deliverables use reasonable efforts to comply with all Customer policies, procedures and rules that have been communicated to QuickSilk in writing.
6. Non-Solicitation. Customer shall not solicit or hire any employee of QuickSilk during the term of this Agreement or for a period of one (1) year from the date of expiration or termination of this Agreement. Such prohibition shall not apply to general employment solicitations not targeted at QuickSilk’s employees.
7. Confidentiality. Each party (the “Recipient”) acknowledges that, from time to time, it may be exposed to certain business, technical, marketing and financial information and data that is clearly marked with a restrictive legend of the disclosing party (“Discloser”) or that by its nature, through the exercise of reasonable business judgment and in consideration of the circumstances of disclosure would reasonably be considered to be confidential and that is not generally known to the public, including, but not limited to a party’s corporate and business strategies, product plans, data, measurements, personnel information, financial information, and customer information (collectively, “Confidential Information”). QuickSilk shall be entitled to provide Confidential Information of Customer to subcontractors that have agreed in writing to confidentiality obligations at least as protective as those contained in this Agreement. Recipient agrees that it will take appropriate steps to protect the Discloser’s Confidential Information from unauthorized disclosure, that it will not disclose such Confidential Information to any third party, and that it will not use such Confidential Information (other than as authorized by this Agreement) without the prior written consent of Discloser. Recipient’s obligations with respect to the Discloser’s Confidential Information shall continue for the shorter of three (3) years from the date of termination or expiration of this Agreement or until such information becomes publicly known other than by breach of this Agreement by Recipient. Disclosure of Confidential Information by Recipient to the extent required pursuant to any law, rule, regulation or court order binding on such Recipient will not constitute a breach of this section, provided that the Recipient has given the Discloser prompt written notice of any requirement or demand for disclosure of Discloser’s Confidential Information.
8. Intellectual Property. QuickSilk shall own all right, title and interest (including all intellectual property rights) in any Deliverables created by QuickSilk pursuant to this Agreement or the SOW. QuickSilk and/or its licensors shall retain all right, title and interest (including all intellectual property rights) in any materials used by QuickSilk in the provision of Services or the development of Deliverables. Subject to payment of the applicable fees, QuickSilk grants to Customer a non-exclusive, non-transferable, internal license to use the Deliverables solely in connection with Customer’s permitted use or other permitted exploitation of products and/or network services procured from QuickSilk. Except as expressly set forth in this Section 8, no other rights are granted whether by implication, estoppel or otherwise.
9. Warranties and Disclaimers.
(a) QuickSilk warrants that: (i) all Services performed under this Agreement will be performed in a workmanlike manner and in accordance with the terms of this Agreement; and (ii) all Deliverables will perform in accordance with the specifications set forth in the SOW. The warranty period for each individual Service and Deliverable provided by QuickSilk pursuant to this Agreement shall, in the case of Services, be a period of ninety (90) days from the date of completion of such Service, and in the case of Deliverables, shall be a period of ninety (90) days from the date of completion of such Deliverable.
(b) Each party represents and warrants that it has the legal power to enter into this Agreement.
(c) EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUICKSILK MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, CUSTOM OF DEALING, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. QUICKSILK’S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE CUMULATIVE FEES PAID TO QUICKSILK UNDER THE APPLICABLE ORDER FORM FOR THE TWELVE (12)-MONTHS PRECEDING ANY CLAIM FOR THE SERVICES AND/OR DELIVERABLES THAT GAVE RISE TO THE CLAIM. IN NO EVENT WILL QUICKSILK BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY LOST PROFITS OR SAVINGS, LOST BUSINESS, LOSS OF DATA, ANY TELECOMMUNICATIONS BREAKDOWN, UNAVAILABILITY, DOWNTIME, INTERRUPTION OR DELAY, ANY SUSPENSION OF SERVICE OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER OR NOT QUICKSILK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH OCCURRENCE OR DAMAGE. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER.
11. Term and Termination
(a) Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect and expire upon the completion of the SOW, provided this Agreement was not terminated for material breach.
(b) Termination. Either Party may terminate this Agreement, without prejudice to any other remedies available to that party if the other Party is in material breach of any of its representations, obligations or responsibilities under this Agreement (including, without limitation, payment) and if such breach continues uncured for a period of fifteen (15) days following the defaulting Party’s receipt of written notice thereof from the terminating Party. This Agreement will automatically terminate: (a) if Customer experiences financial difficulties (including but not limited to chronic late or failed invoice payments) such that QuickSilk can reasonably assume that the Customer can no longer meet its obligations under the Agreement; or (b) one (1) day before the other Party becomes bankrupt or insolvent, or a receiving order is made against the other Party, or an assignment is made for the benefit of creditors, or an order is made or resolution passed for the winding up of the other Party, or the other Party takes the benefit of any statute relating to bankrupt or insolvent debtors.
(c) Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4, 6, 7, 8, 9(b), 10, 11(c) and 12.
12. General. This Agreement, together with the SaaS Agreement, and the Order Form and SOW is the entire agreement between QuickSilk and Customer in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written. QuickSilk may update the terms of this Agreement from time to time and the latest version will be effective from the date of update. The date of last update of this Agreement is set out at the bottom of this document. Any revised version of this Agreement will not have retroactive effect and will only apply to govern new Order Forms and SOWs executed after the date of the revised Agreement. Customer may not assign this Agreement whether voluntarily, by operation of law, or otherwise without QuickSilk’s prior written consent. QuickSilk may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such provision shall be reformed only to the extent necessary to make it enforceable under such circumstances. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labor problems (other than those involving the employees of the affected party), or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore. This Agreement shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein. No choice or conflict of laws rules of any jurisdiction shall apply to this Agreement. The provincial and federal courts located in Ottawa, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Notwithstanding the foregoing, each party shall be entitled to seek injunctive or other equitable relief in any jurisdiction with a reasonable connection to the subject matter of this Agreement. Customer acknowledges and agrees that the Deliverables may be subject to export and import controls under the regulations of the United States, Canada and other countries, and Customer shall comply with all export and import control regulations of such countries. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.