Computer Geeks On Call Corp a Company duly registered by the laws of Ontario, Canada with its principal place of business being Suite 235, 4936 Yonge Street North York ON M2N 6S3, Canada (hereinafter referred to as “The Service Provider”, which expression shall where the context admits, include its successors-in-title and assigns), of the other part.
(The Service Provider or Client are individually referred to herein as a “Party” and jointly as the “Parties”).
WHEREAS, Service Provider has the requisite skills and professional experience in IT, privacy, records and information management; and
WHEREAS, the Client desires that the Service Provider provide such services to the Client in his or her area of expertise; and
WHEREAS, the Service Provider desires to provide such advice and assistance to the Client under the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereby agree as follows:
1.1 It is understood that the purpose of this agreement is to provide services to cover, onsite and remote service, product returns, support boundaries on resold products and services and that neither Service Provider nor Client will benefit if Service Provider provides inaccurate and unprofessional service. To that end, Client shall provide Service Provider, in advance of meetings, with accurate, unbiased and sufficient information to enable the service provider carry out the services stated hereunder in Exhibit A attached thereto this agreement, and shall promptly provide further information that Service Provider reasonably deems relevant to the performance of said service. It is expressly understood that Service Provider has no fiduciary obligation to Client, but instead a contractual one described by the terms of this Agreement.
- COMPENSATION AND REIMBURSEMENT
2.1 Where the Client is a corporate entity, the client shall pay the Service Provider at an hourly rate and for non-corporate entities, the Client shall pay the service provider at an hourly rate for services actually performed by the Service Provider (“the hourly fee”).
2.2 In addition, the Client shall reimburse Service Provider for reasonable travel and other expenses Service Provider incurs in connection with performing the Services. To obtain reimbursement, Service Provider shall submit to the Client, an invoice describing services rendered and expenses incurred under this Agreement. Client shall provide any documentation requirements and any travel policy restrictions to Service Provider in writing in advance, or be foreclosed from relying on such requirements and restrictions to deny reimbursement. Client will accommodate Service Provider’s request to arrange, at Client’s expense, for all of Service Provider’s travel and accommodations in connection with such meetings if they occur outside the client’s jurisdiction.
2.3. The Service Provider shall invoice the Client directly or through its Affiliate in the applicable jurisdiction where the Service is delivered via the address, indicated by the Client.
2.4. The Service Fees shall be invoiced and paid in Canadian Dollars (except where agreed by the Parties to be paid in another currency.
2.5 The Service Fees shall be payable not later than ten (14) Days from the Client’s receipt of such invoice. Notwithstanding the foregoing, if the Client, in good faith, disputes any portion of the Service Fees then the undisputed amount of the invoice shall remain due and payable as provided for in this Clause and the payment of the disputed amount may be deferred pending the resolution of the dispute.
3.1 Where applicable, and as required for the provision of the Services, this Agreement authorizes The Service Provider to act on its behalf to procure any necessary authorizations or facilities required for the provision of the Services; provided that prior to making any commitment on behalf of the Client, The Service Provider shall advise the Client of any and all terms and conditions applicable to such commitment and obtain its written approval and the Client shall pay the applicable charges with respect to the procurement of such authorization and/or facilities.
- LIMITATION OF LIABILITY
4.1. In no event shall either Party be liable to the other Party for consequential, special or indirect losses or damages sustained by either Party or any third parties in using the Service howsoever arising and whether under contract, tort or otherwise (including, without limitation, third party claims, loss of business or profits, loss of Clients, loss of data or information, cost of substitute performance, equipment or services and downtime costs, or damage to reputation or goodwill).
5.1 Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.
6.1. Each Party hereby agrees that if either Party provides confidential or proprietary information (“Confidential Information“) to the other Party, such Confidential Information shall be held in the strictest of confidence and the receiving Party shall afford such Confidential Information the same care and protection as it affords generally to its own confidential and proprietary information (which in any case shall not be less than reasonable care) to avoid disclosure to or unauthorized use by any third party.
6.2. The terms, conditions and provisions of this Agreement, constitute Confidential Information, and all information disclosed by either Party to the other in connection with or pursuant to this Agreement shall be deemed to be Confidential Information, whether or not that written information is marked as being confidential or proprietary when given or confirmed in writing as such thereafter unless otherwise provided for in this Agreement.
6.3. Notwithstanding the following, either Party may disclose Confidential Information to its employees, agents, and legal, financial, and accounting advisors (including its lenders and other financiers) to the extent necessary or appropriate in connection with the execution and performance of this Agreement or its obtaining of financing; provided, however, that each such person is notified of the confidential and proprietary nature of such Confidential Information and is subject to and agrees to be bound by similar restrictions on its use and disclosure that are at least equal to those contained in this Clause 7.
6.4. The foregoing provisions of this Clause 8 shall not apply to any Confidential Information which the receiving Party can evidence: (i) becomes publicly available other than through the actions of the receiving Party; (ii) is required to be disclosed pursuant to any binding obligation imposed by an applicable governmental or regulatory body or authority, or by law, or an order of an applicable court or the rules of a recognized stock exchange; (iii) is independently developed by the receiving Party; or (iv) becomes available to the receiving Party without restriction from a third party.
6.5. If any Confidential Information is required to be disclosed by the receiving Party pursuant to this clause, the receiving Party shall give such written notice as is reasonably possible under the circumstances to the disclosing Party of the requirements of such disclosure.
- INTELLECTUAL PROPERTY
7.1 All legal and beneficial rights in software, copyright, trademark, all photographs produced or any other intellectual property in whatever form (hereinafter “Intellectual Property”) which The Service Provider provides to the Client for the purpose of using the Service(s) are “work for hire” and will remain at all times the property of the Client.
7.2 To the extent that it is so entitled, the Client shall have exclusive right to use such Intellectual Property for the sole purpose of using the Service(s) as contemplated in this Agreement.
- CAPACITY/INDEPENDENT CONTRACTOR
8.1 In providing the Services under this Agreement it is expressly agreed that the Service Provider is acting as an independent contractor and not as an employee. The Service Provider and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, provincial or federal tax, unemployment compensation, workers’ compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Service Provider during the Term. The Service Provider is responsible for paying, and complying with reporting requirements for, all local, provincial and federal taxes related to payments made to the Service Provider under this Agreement.
- MODIFICATION OF TERMS OF SERVICE
9.1 Any amendment or modification of these terms of service or additional obligation assumed by either Party in connection with the service will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
10.1 This Agreement will ensure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
- SEVERABILITY, WAIVER
11.1 If any part or any provision of this Agreement is or becomes illegal, invalid or unenforceable, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the validity or enforceability of the remaining parts of said provision or the remaining provisions of this Agreement. No waiver by either Party to any provisions of this Agreement shall be binding unless made in writing.
- GOVERNING LAW AND DISPUTE RESOLUTION
12.1 This Agreement shall be construed in accordance with and shall be governed by the laws of Ontario & Canada, without regard to conflict of laws principles. Except as otherwise provided herein, any dispute or controversy arising under or in connection with this Agreement shall be finally settled by a sole arbitrator to be agreed upon by both Parties. The place and seat or location of arbitration shall be Ontario and the procedural law applicable to the arbitration proceedings shall be the laws of Ontario & Canada. The arbitration shall be conducted in English.