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Terradare Inc DBA Terradare Solutions Master Agreement

This Master Agreement (“AGREEMENT”) governs the use of our services. By accepting this agreement, executed by signing an Order Form referencing this agreement, you (“The Client”) agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services.
This agreement was last updated November 6, 2019. It is effective as of the date You accept this agreement.

DEFINITIONS
In this Agreement (as defined herein), unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the respective meanings ascribed below:

a) “Agreement”, “contract”, “hereto”, “herein”, “hereby”, “hereunder” and similar expressions refer to this Agreement and not to any Article, Section or other portion hereof, and include any and every instrument supplemental or additional to hereof;
b) “Order Forms” means the documents for placing orders hereunder that are entered between You and Us, including addenda and supplements thereto. By entering an Order Form hereunder, The Client agrees to be bound by the terms.
c) “Business” means any business or actions carried on by both Parties as may be deemed by both Parties to be in the best interest of the Project and any other general business activities related or incidental thereto;
d) “Project” refers to the services and timelines as described in the Scope of Work.
e) “Services” means the services that are ordered by You under an Order Form.
f) “Consultant” refers to Terradare Inc. and/or any personnel authorized to represent Terradare Inc., in writing.
g) “Effective Date” means the date the Order Form was accepted referencing this agreement;
h) “Party” means any one of Terradare Inc. or The Client. “Parties” or “Both Parties” means both Terradare Inc and The Client, and the “Alliance” means only collaboration as established by this Agreement.
i) “We,” “Us,” or “Our” means the applicable Terradare Inc. entity.
j) “You” or “Your” means The Client, company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity
k) “Your Data” means all electronic data or information submitted by You to Us.

SERVICES
1) We will provide You with a list of Services in the Order Form and will be supplemented, where applicable, by a “Scope of Work” or “Proposal for Service”. Any and all amendments to the Scope of Work or Proposal for Service will be agreed to by Both Parties electronically and will be considered binding in conjunction with this Agreement.

2) We will prepare and present to You a preliminary Project or Service schedule and will include the required basic sequence and timing including project design time, implementation and testing period, evaluations, any possible on-site and/or remote activities and Project Completion date.

3) You will provide Us with necessary information and access to systems as requested by the Consultant, so we can proceed with performing the project or providing services at the proper schedule.

4) We will specify staff requirements, hire subcontractors and coordinate their activities to provide services to You.

5) We will proactively handle any arising issues and troubleshoot any emerging problems related to the Project or delivery of Services.

6) We will conduct pre- and post-Project or monthly Service evaluations and report on outcomes as required.

7) We shall provide services during business hours from 8:30 am Monday to 5:30 pm Friday Eastern Time or if in scope of services selected, during non-business hours. We shall notify of unavailability at least 72 hours in advance if necessary and where possible in the event of unforeseen and circumstances beyond Our reasonable control including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays and denial of service attacks.

8) We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data without your consent, (b) disclose Your Data except when permitted in writing by You, or (c) access Your Data except to provide the Purchased Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

INTELLECTUAL PROPERTY OWNERSHIP
9) We will retain sole ownership and rights to any and all Project vision, plan and implementation components developed during client consultation/ strategy meetings. You will not modify and/ or use, sell or provide a usage of this materials to another organization or individual without the express written consent by Us.

PROJECT PERSONNEL
10) Based on the list of services (ascertained together by Both Parties), We will choose professionals from a list of trusted professionals. These include but are not limited to: project managers, programmers, CRM providers and more. The Consultant will also develop and maintain a system for quality assurances and quality control of Subcontractors.

11) All transactions, including payment and instructions to the subcontractors will be done solely through Us.

FEES
12) You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased (ii) payment obligations are non-cancelable and fees paid are non-refundable.

13) Fees will be invoiced in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due upon receipt of the invoice. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

14) If any amounts invoiced hereunder are not received by Us by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on different payment terms than those specified.

15) If any charge owing by You is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Services until such amounts are paid in full, provided We have given You 10 or more days’ prior notice that Your account is overdue. 16) We shall not exercise Our rights to recover amounts invoiced and overdue or suspend services if You are disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.

17) Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

18) You will reimburse any additional expenses estimated and supported by receipts of The Consultant. The Disbursement fees will be discussed with You before any action is taken to encumber them with a fee and a written consent will be obtained.

INDEMNIFICATION
19) You shall indemnify and hold harmless Us and Our agents and employees and colleagues from and against claims, demands, losses, costs, damages, actions, suits, or proceedings (hereinafter called “claims”), by third parties that arise out of, or are attributable to, Our performance of the Contract provided such claims are: 1. attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property, and 2. caused by negligent acts or omissions of You or anyone for whose acts on behalf of You may be liable including but not limited to: employees, contractors or any and all collaborators.

RELATIONSHIP OF THE PARTIES
20) We agree to perform the Services solely as a Corporation. You recognize that this Agreement does not create any actual or apparent relationship of employer and employee between the parties and we have no rights or entitlements under the Employment Standards Act, 2000, as amended.

21) You shall not be liable for any taxes, worker’s compensation coverage or premiums, employment insurance, employers’ liability, CPP, income tax, or other taxes or withholdings for or on behalf of Us or any other person consulted or employed by Us in performing the Services under this Agreement.
22) You are not obligated to make any deductions at source under the Income Tax Act, the Employment Insurance Act or the Canada Pension Plan. Terradare Inc. will report the amount of fees paid for Services hereunder pursuant to the applicable governmental requirements and will report the HST number on all invoices rendered for provision of the Services and remit such HST in a timely manner to the government. The Client is not responsible for the reporting or remittance of such HST amounts. For International Clients (not based and/or situated in Canada) the same applies. The Consultant and the Client will both submit any and all papers required to applicable governing bodies and will disclose all transactions as described in this Agreement.

REPRESENTATIONS AND WARRANTIES
23) In the event that We misrepresent, whether intentionally or unintentionally, Our ability to carry out the Services, You shall have the right to immediately terminate this Agreement without notice, for cause. The same applies if You misrepresent to Us.

24) We shall perform the Services in good faith and in accordance with applicable professional standards.

25) We and You agree to indemnify and hold each other harmless from any damages, claims, liabilities, and costs, including legal fees, or losses of any kind or nature whatsoever claimed against Us or You by any person or entity as a result of any such misrepresentation of either party’s ability to provide the Services.

CONFIDENTIAL INFORMATION AND SOLICITATION
26) As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party; or (v) is required to be disclosed by the Receiving Party pursuant to a valid order of the court or other governmental body and only after compliance in conjunction with disclosure of information compelled by law.

27) The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, officers, directors, contractors, representatives and agents (“Representatives”) who need such access for purposes consistent with this Agreement and who agree to act in accordance with the confidentiality provisions of this Agreement. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and Representatives without the other party’s prior written consent.

28) A breach of this term is grounds for immediate termination of this Agreement.

TERMINATION OF AGREEMENT
29) This agreement is for a term of 12 months from the order date on the Order Form referencing this agreement or The Day of the Project Completion but may be terminated by Us or by You at any time upon 15 business days written notice. Upon receipt of such notice either party may waive notice in which event this Agreement shall terminate immediately, and The Consultant will only complete the parts of The Project that are reasonably required for safety purposes.
30) Upon Termination prior to Project completion by either Party, You will retain all software/programs ordered by Us for the Project and that have been fully paid for.
31) Upon any termination for cause by You, We shall not refund You any prepaid fees. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. 32) Prior the effective date of termination of Services, Your Data, will be returned to You. After the effective date of termination, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

INSURANCE
33) You are responsible for managing risks and liabilities under your control, and as such You are required and shall obtain applicable insurance. All insurance which You are required to obtain in accordance with this agreement shall be with Insurers registered in and licensed to underwrite such insurance in Your province or State. All the insurance policies which You are required to obtain shall provide that the insurance shall not be cancelled, or materially changed in any way, without the Insurer giving at least thirty days (30) prior written notice to Us, before the expiration of the policy or policies. You shall provide Us with proof of such insurance and or permit upon written request.

ENTIRE AGREEMENT
34) Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.

35) This Agreement constitutes the only Agreement between Both Parties hereto with respect to the subject matter hereof, and no amendment, modification, or alteration of this Agreement shall be valid unless made in writing and agreed upon by Both Parties hereto.

36) This Agreement and the provisions hereof are to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns in writing.

GOVERNING LAW
37) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof and such invalid or unenforceable provision shall be deemed to be severed here from. Any dispute that may arise will be negotiated and dealt with in Ottawa, Ontario.

DISPUTE RESOLUTION
38) Unless otherwise provided for in this Agreement, any disagreement and/or dispute relating to this Agreement may be referred by either party to mediation. The mediation shall be conducted by a sole licensed mediator Both Parties agree upon, failing which, a party may apply to a court of competent jurisdiction of Ontario for the appointment of a mediator. The decision arrived at by the mediator shall be final and binding upon the parties and shall not be appealed. The costs of the arbitrations, including the remuneration of the mediator, shall be paid equally (50% by the Client and 50% by the Consultant) by parties.

INDEPENDENT LEGAL ADVICE
39) The parties acknowledge and agree that they have each had the opportunity to obtain independent legal advice concerning the terms of this Agreement and sign it voluntarily and with full understanding of its contents.

NOTICE
40) Any notice to be given under this Agreement shall be addressed to the parties at their respective addresses.

LIMITATION OF LIABILITY
41) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THE FOREGOING LIMIT SHALL NOT APPLY TO YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT FOR PURCHASED SERVICES”.

42) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

COUNTERPARTS
43) This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.