Terms of Service
GENERAL TERMS AND CONDITIONS
And Exhibits and Appendices
Effective Date: August 1, 2022
The Client appoints Techdinamics Integrations Inc. (“Techdinamics”), and Techdinamics accepts appointment, as an independent contractor to perform the services described in the Statement of Work (the “SOW(s)”) (also referred to as the “Services”). At no time shall Techdinamics or any of its employees be deemed an employee of the Client. This Agreement shall only entitle Techdinamics to describe itself as a consultant to the Client when acting on behalf of the Client.
Techdinamics has expertise in providing the services to be performed pursuant to this Agreement (the “Services”); and
Techdinamics has agreed to provide Services to Client under the terms and conditions set forth herein,
In consideration of the promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Techdinamics agrees to provide Services to Client, subject to the following terms and conditions:
These General Terms shall apply to all Services (as hereinafter defined) delivered to the Client by Techdinamics, except when the applicability of the General Terms is excluded or restricted by law, regulations, or written agreement or when amendments to these General Terms have been confirmed explicitly and in writing mutually.
Any general terms and conditions proposed by the Client including those referenced in purchase orders are rejected explicitly.
The different Appendices of these General Terms are incorporated by reference and shall apply to the Statement of Work (as hereinafter defined) whenever the type(s) of Services proposed or provided by Techdinamics may be categorized under the relevant Appendix.
Whenever the contents or interpretation of the Statement of Work and the General Terms conflict, the General Terms shall take precedence.
Whenever the content of an Appendix which contains terms and conditions related to a specific type of Service conflict with the Statement of Work or General Terms or an Appendix covering a broader range of services, the more specific Appendix applicable to the Services delivered shall take precedence over the more general Appendix which shall take precedence over the General Terms which shall take precedence over the Statement of Work.
“Affiliate” means any entity which is controlling, controlled by, or under common control with, any party to a Statement of Work, including Techdinamics or any Techdinamics Entity.
“Agreement” means this Master Service Agreement including the Statement(s) of Work, the General Terms, set out herein, and the terms of this agreement.
“Chargebacks” means financial consequences for not following guidelines, as more particularly set out in Paragraph 19.
“Claim” means any claim or proceeding of any nature including but not limited to contract, tort, breach of statutory duty, negligence or otherwise.
“Client” means the legal entity which confers the engagement to Techdinamics, and which is the other party to a Statement of Work.
“Content” means all audio and/or visual information, documents, software, and other products that Techdinamics makes available to Client during the course of the agreement of Services.
“Data Protection Law” means any domestic or international rule, regulation, or legislation that may apply to Personal Data from time to time.
“Losses” means any Claims, liabilities, damages, costs or expenses of any sort in any way relating to or arising out of the Agreement or the Services.
“Personal Data” means any information relating to an identifiable, living individual if th disclosure of that information would readily allow members of the public to identify that individual.
“Services” means the products, services, deliverables and work product described in a quote or Statement of Work that a Client has ordered from Techdinamics or an authorized reseller.
“Statement of Work” means the statement of work, quote, proposal, letter agreement or equivalent document describing the Services to be performed by Techdinamics entered into between Client and Techdinamics and any written amendments thereto, other than the General Terms.
“Subcontractor” means a third party (other than a Techdinamics Entity) to whom Techdinamics subcontracts any of the Services.
“Subscription Term” means the time period during which Techdinamics provides to Client, through subscription, the Product or Service as outlined in the applicable Statement of Work.
“Techdinamics” means one or more of the legal entities which shall have been engaged by the Client for the Services under an Agreement.
“Techdinamics Entity” means Techdinamics’ Canadian entity and its respective subsidiaries and Affiliates, and their respective predecessors, successors and assignees.
“TechSHIP Platform” means the online web-based applications, user interfaces, the online platform and the underlying software (including the modifications, enhancements, corrections, and updates to the software) provided to Client by Techdinamics pursuant to a mutually executed Statement of Work.
“Unintended Access” includes, but is not limited to, compromise by a computer worm, search engine web crawler, password compromise or access by an unauthorized individual or automated program.
Procedure for Services
- The Agreement, together with its associated Statement of Work, constitutes the whole agreement between the Client and Techdinamics in relation to the Services. The Agreement supersedes any previous agreement, proposal, understanding or communication, written or oral, relating to its subject matter. No variation to an Agreement shall be effective unless it is documented in writing, provided, however, that the scope of Services set forth in the Statement of Work may be changed by agreement of the parties in writing, including but not limited to e-mail or Hellosign or similar.The parties agree that notwithstanding the foregoing, each Statement of Work shall be binding pursuant to its terms.
- Services are initiated only after a completed Statement of Work has been approved and signed by an authorized individual for Client and for Techdinamics.
- The Agreement shall be concluded at the moment that the Statement of Work, signed by the Client and Techdinamics, has been received by Techdinamics and – if applicable – shall be effective retroactively as from the date Techdinamics started its performance there under. If Techdinamics has already started work (e.g., by gathering information, project planning or giving initial advice) then the Client agrees that the Agreement is effective as of the start of such work. Client will be obligated to pay Techdinamics the reasonable value of any Services performed during such period, but in no case less than actual hours worked as a percentage of the total project estimated fees specified in the Statement of Work(s), plus reimbursable expenses if applicable.
- If the Client and the beneficiary of the Services are separate legal entities – including, without limitation, natural persons – and either is an Affiliate of the other, the Client warrants and represents that theparty or parties having an interest in the Services accept the terms and conditions of the Agreement fully, failing which the Client shall indemnify and hold Techdinamics harmless from and against all Losses connected with the breach of such warranty or representation.
- Techdinamics hereby grants to Client a limited, non-exclusive, non-transferable, right and license to use the Services and the Content solely for Client’s own internal business purposes, subject to all of these Terms and the provisions of the Statement of Work signed by Client.All rights in and to the Services and Content that are not expressly granted to Client in these Terms are hereby reserved by Techdinamics and its licensors. Techdinamics may in its sole discretion provide Client access to additional Content that customizes the Services for Client. Such customized Content and Services shall be owned exclusively by Techdinamics and shall be governed by these Terms. Client understands and agrees that Techdinamics, and any authorized reseller, are separate, independent contractors.
- Client shall not (i) license, sublicense, sell, resell, rent, timeshare, transfer, assign, distribute, or otherwise commercially exploit or make available in any way to any third party any service or software or other materials or information included with the Services or the Content; (ii) make derivative works of, or otherwise modify any Services or Content; (iii) create Internet “links” to any Services or Content or “frame” or “mirror” any Services or Content on any server or wireless or Internet-based device; or (iv) reverse engineer or access any Services or Content in order to (1) build a competitive product or service, (2) build a product using ideas, features, functions or graphics similar to any Services or Content, or (3) copy any ideas, features, functions, or graphics of the Services or Content. Client shall not use any Services or Content in any way that infringes upon the intellectual property rights of any person, including without limitation Techdinamics.
Statements of Work
- Techdinamics agrees to perform the Services in a professional manner as detailed in each applicable Statement of Work.
- Techdinamics reserves the right to requote a Statement of Work if its acceptance by Client does not occur within thirty (30) days after issuance.
- A separate Statement of Work, Statement of Work amendment or Change Request will be prepared and signed by both parties whenever there is a new or changed project objective, scope of deliverable(s) or when a change in project assumptions has a material impact on project cost including estimates.
- Client will provide Techdinamics project team(s) full cooperation and timely access to all required Client personnel while Techdinamics provides services. Client is responsible for timely review and turnaround of all documents requiring Client approval.
- Techdinamics, its employees, and subcontractors (i) can rely upon any instructions or information provided by the Client or any persons designated in writing by Client and (ii) will incur no liability for such reliance. In addition, Techdinamics shall not be liable for any default or delay in performance of its obligations hereunder to the extent the same is caused, directly or indirectly, by (x) the failure of Client to comply with any of its obligations hereunder or (y) any unavailability or work absence of the appropriate Client personnel.
- The Services performed hereunder, and all work product delivered in connection therewith shall be deemed accepted if, within five (5) days after delivery, Client has not provided to Techdinamics written notice identifying in reasonable detail any basis for not approving the work product.
- Client is responsible for all activities relating to Client’s access and use of the Services and Content and for compliance with all Laws associated therewith, including without limitation those relating to data privacy, international communications, and transmission of technical or personal data.
- Client agrees not to disclose or provide access to any Services or Content to any person or entity except on a need-to-know basis to employees and other persons or entities not direct competitors of Techdinamics who have contracted to provide related services to Client and who have agreed in writing to abide by these Terms and not to use any Services or Content to compete with Techdinamics. Client agrees to use its best efforts to ensure that all persons having access to any Services or Content protect them from unauthorized use and disclosure. Client shall notify Techdinamics immediately of any unauthorized access or use of any Services or Content.
- Client is responsible for obtaining and maintaining, at its sole expense, all of the hardware, software, and Internet connectivity and bandwidth necessary and appropriate for Client to access and use the Services and the Content. If Client fails to do so, Client’s access to or ability to use the Services and the Content may be negatively affected or non-existent.
- Fees. As compensation for the Services hereunder, Client agrees to pay Techdinamics pursuant to the fee schedule set forth in each Statement of Work. All fees referred to in these General Terms or any Statement of Work are in USA Dollars, except where explicitly stated otherwise, and do not include any duties or taxes. All such duties and taxes, whenever imposed, shall be payable by Client. Income or other taxes that are required to be paid or withheld by the Client, under the laws of jurisdictions other than Canada, in connection with the Services hereunder, shall be the sole obligation of the Client. Techdinamics may, at its option, submit weekly invoices to Client unless otherwise specified in the applicable Statement of Work.
- Payment Remit. Except as otherwise provided in an applicable Statement of Work, Client agrees to remit payment in full on each invoice to Techdinamics within fifteen (15) days after the issuing date of such invoice. Client will facilitate payments via corporate credit card, or pursuant to any other reasonable payment terms Techdinamics may request from time to time include e-transfer or electronic funds transfer.
- The client shall notify Techdinamics, within fifteen (15) days of receipt of any invoice, of any inadequacy of the invoice or of the supporting documentation, and where any such notice is given within that period, the date for payment of the amount invoiced shall be postponed until Techdinamics and Client mutually remedy the disputed invoice.
- Techdinamics reserves the right to charge and collect a service fee on any unpaid, past-due amount equal to the lesser of (a) one-and-one-half percent (1.5%) per month or (b) the highest interest rate legally permitted. Client will reimburse Techdinamics for all reasonable collection expenses, including reasonable attorneys’ fees and court costs incurred in the collection of delinquent accounts payable.
- Client agrees to reimburse Techdinamics for expenses incurred in carrying out Techdinamics’ activities under an Agreement. Techdinamics shall obtain Client’s written consent prior to incurring any expenses. Examples of such expenses include, mileage, and out-of-town travel costs such as airline tickets, meals, ground transportation and lodging.
- Except as otherwise provided under the additional terms set forth in any Appendix, either party may terminate consulting service engagements under an Agreement without cause upon the giving of at least thirty (30) days advance written notice to the other party, providedthat all payment obligations incurred by Client to date must be current at the time of such notice of termination in order for such notice to be effective. In addition, either party may terminate a Statement of Work upon an Event of Default (as hereinafter defined).
- “Event of Default” shall mean the occurrence of a breach of any term of an Agreement or any applicable Statement of Work which, for payment related breaches, remains uncured after the tenth (10th) day after written notice, and which, for all other breaches, remains uncured after the thirtieth (30th) day after written notice, provided, however, that the above 30-day period shall be increased to 120 days if the default is reasonably curable within 120 days and so long as the party attempting to cure demonstrates to the other party’s reasonable satisfaction that it is diligently attempting to accomplish such a cure.
- The Client agrees and acknowledges that through and by acceptance of the Termination terms and conditions outlined in paragraphs 6(a) and 6(b) of this Agreement, upon the completion of the cure period in an Event of Default, Techdinamics will be released from any and all liabilities and obligations arising from this Agreement, including the obligation to provide the Services. Client waives the right to pursue any and all potential claims based on, but not limited to, causes of action which relate to Client’s subsequent lack of Service provider.
- Upon the expiration or earlier termination of any Statement of Work(s), all charges related to all work performed by Techdinamics, including without limitation, any expenses incurred by Techdinamics under such outstanding Statement of Work(s), through the expiration date or the effective date of the termination of such Statement of Work(s), will immediately become due and payable to Techdinamics without demand thereof. In the event such expiration or termination occurs prior to the completion of the services to be rendered under any Statement of Work(s) which calls for milestone, progress or objective based billing, Client shall pay Techdinamics for all services rendered and expenses incurred by Techdinamics as set forth in the applicable Statement of Work(s), including services and expenses related to any milestone, progress point or objective Techdinamics is working to complete at the time the applicable Statement of Work(s) expires or is terminated.
- Client and its employees and agents may have access to private and confidential information owned or controlled by Techdinamics, including the confidential and proprietary information and materials referenced in the Statement of Work, as well as information relating to Techdinamics’ data, best practices, methodology, algorithms, programs, software, security keys, specifications, drawings, business information, pricing and other data, as well as the existence of any dispute between the parties. Similarly, Techdinamics and its employees, agents and subcontractors may have access to private and confidential information owned or controlled by Client relating to technical or business information of a proprietary nature or relating to Client’s business operations. All such Techdinamics information and Client information shall be “Confidential Information”.
- The Confidential Information acquired by either party under an Agreement through its employees, agents and subcontractors shall be and remain the disclosing party’s exclusive property and the receiving party shall keep, and its employees, agents and subcontractors shall not copy or disclose such Confidential Information to others without the disclosing party’s prior written approval, shall return all tangible copies of such Confidential Information to the disclosing party promptly upon request, and shall destroy all electronic copies promptly upon request.
- The Confidential Information of the disclosing party may be used by the receiving party only in connection with the Services. Nothing herein shall limit either party’s use or dissemination of information which (i) is at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission of the other party, its employees or agents; or (ii) was in the other party’s possession as shown by written records prior to the disclosure and had not been obtained either directly or indirectly from another party under an obligation not to disclose such information; (iii) is hereafter disclosed to the other party by a third party who did not acquire the information directly or indirectly from the disclosing party hereunder; (iv) was independently developed by the other party without use of the Confidential Information, as evidenced by written records; or (v) is required by law, regulation or auditing standards to be disclosed, but only to the extent and for the purposes of such required disclosure.
- Techdinamics assumes no obligation to divulge to Client any information for or related to which Techdinamics has previously undertaken an obligation of confidentiality for the benefit of any party other than Client. Techdinamics shall be permitted to identify Client as a participant in the Techdinamics Services and Programs.
- Each Party shall promptly return to the other Party any Confidential Information of the other Party that is in their possession or certify in writing to its permanent destruction. Techdinamics shall have the right to retain pieces of Customer Data (as defined in paragraph 8(b)) in its systems, back-ups and monitoring tools when such Customer Data cannot be deleted with reasonable efforts; such Customer Data will be removed in accordance with the standard practices of Techdinamics, and Techdinamics shall continue to apply its standard security measures to such Customer Data and shall not use such Customer Data for any purposes other than what is specified in this Agreement.
- Techdinamics is responsible to maintain commercially reasonable administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Client data.
- Techdinamics will not own any data, information, or material that Client submits while using the Services (“Customer Data”), except for any Feedback that Client provides through any channel. Client agrees not to provide any feedback that is covered by any third-party intellectual property rights. Client shall have the sole responsibility for all aspects of the Customer Data, including, without limitation, its accuracy, legality, ownership, transmission, and use.
- Techdinamics shall have no obligation to retain any copy of Customer Data for longer than ninety (90) days after termination of this agreement.
- Techdinamics hereby agrees to notify Client as soon as it becomes aware of any actual or suspected Unintended Access of any of its systems and platforms that access, process or stored Customer Data (provided under, related to or produced under this Agreement.
- Client shall have the right, within reason, to conduct, at its sole cost and expense, a security audit at any time during the Term and during normal working hours to ensure compliance with this Agreement. Techdinamics reserves the right to limit access to systems and data that may contain proprietary, confidential or another client privileged information.
- Client will not transmit to Techdinamics any Personal Data or other information that may be used to identify any living individual without the express written agreement of the Parties that such Personal Data is required to complete the Services, and advance written notice of what the Personal Data is, and its means of transmission is given to Techdinamics (“Permitted Personal Data”). Client will be responsible for obtaining any consents required by Data Protection Law, including but not limited to GDPR, which may be required of any individual Data Subject prior to transmitting the Permitted Personal Data to Techdinamics. If Personal Data is transmitted outside of these requirements, Techdinamics will delete such data promptly upon discovery (which shall mean putting such data beyond reasonable use), but in no event shall Techdinamics be deemed to be engaged in any commissioned data processing except for in relation to Permitted Personal Data.
- When Client is located or operates within the European Union, or who are otherwise subject to the requirements of the GDPR, and save as set out in Clause below, Techdinamics will process all Permitted Personal Data that is supplied to us by Client or on Client’s behalf as Client’s Processor for the purpose of providing the Services and will Process such Permitted Personal Data in accordance with the terms set out in the Data Processing Agreement (DPA). Client understands and agrees that such data may be held on servers outside the European Economic Area (EEA) and be provided to and used by Techdinamics or others engaged with Techdinamics in providing the Services and Techdinamics may provide Permitted Personal Data to its overseas offices as required to provide the Services or administrative functions related to the Services. Client expressly consents to Techdinamics use of its overseas personnel on this basis. Techdinamics will provide a list of its entities upon Client’s request, who will be Processing the Permitted Personal Data under this Agreement. Techdinamics may also send data, including Personal Data, outside the EEA to other Datacenters for disaster recovery.Any such transfer of Personal Data will be for the same limited purposes and under similar security conditions to those applied to the processing of Permitted Personal Data by Techdinamics within the EEA and will be processed in accordance with the GDPR.
- In those circumstances where Techdinamics collects or processes Personal Data relating to the Client in the capacity of a Controller, Techdinamics will process such Personal Data in accordance with Data Protection Law and its privacy statement which is available upon request. Where appropriate and/or where requested by Techdinamics, Client will ensure its employees and other relevant individuals are made aware of this privacy statement.
Intellectual Property Rights
- Except as otherwise provided in these General Terms or in any applicable Statement of Work, and only upon final payment in full, Techdinamics shall own all rights to Services and work product originally developed for and provided to Client under an Agreement.
- Techdinamics shall retain the right to reuse the ideas, concepts, know-how, and techniques derived from the rendering of the Services so long as it does not require the disclosure of any of Client’s Confidential Information (as defined in paragraph 7(a)).
- Techdinamics retains and shall be entitled to any and all protections afforded under Provincial and Federal statutory or common law with respect to any materials, which it considers proprietary, and which were prepared, developed or used by Techdinamics prior to or outside the course of completing the Services performed under the terms of a Statement of Work (“Techdinamics Intellectual Property”).
- In the event (and to the extent) that any deliverable contains any items or elements which are Techdinamics’ Intellectual Property, Techdinamics grants to Client an irrevocable, perpetual, royalty–free license to use, execute, display, and/or perform such to the extent it is necessary to fulfill the scope of work described in the applicable Statement of Work. These protections shall not cover Confidential Information as defined in Clause 7 of these General Terms.
- All software, technology or proprietary information not owned by Techdinamics or Client shall be protected under the terms and conditions of separate licensing agreements.
- Unless otherwise stated herein or in a Statement of Work, the reproduction, distribution, or transfer, by any means or methods, whether direct or indirect, of any of Techdinamics Intellectual Property, Confidential Information, or proprietary information or of its agents or any third-party licensed software by the Client is strictly prohibited.
No Services or Content may be accessed, used, exported, or redistributed in any form in or to any country prohibited by Canadian export laws, rules, and regulations (“Laws”) or to residents or nationals of any such countries. Client agrees to comply with all applicable national and international Laws that apply to the Services and Content, including without limitation Canadian export Laws. By accessing the Services and Content, Client (a) represents and warrants to Techdinamics that Client is not restricted from receiving or using Canadian products and agrees to comply with all applicable Canadian export Laws and all host country import Laws; and (b) agrees that Client will not export, redistribute, or re-export any Services or Content, or any process or service that is a direct product of any Services or Content, in violation of any applicable Laws of Canada or the country in which Client accessed or used such Services or Content.
- Each Party agrees that its respective personnel, when using or accessing the premises or technology systems of the other Party, shall comply with all applicable security policies in effect at such premises, copies of which shall be provided in advance to such Party.
- If any servant, agent, employee, invitee, or representative of a Party shall fail or refuse to abide by such policies, the said servant, agent, employee, invitee, or representative may be prohibited from using or accessing such premises.
- In the event a Party makes use of the other Party’s computer systems, it shall comply, to the extent applicable, with the other Party’s reasonable computer security requirements, copies of which shall be provided in advance to such Party.
- Material additions and changes to Client security policies after the Effective Date need to be communicated immediately to Techdinamics.
During the term of this Agreement and for two years thereafter, without Techdinamics’ prior written consent, neither Client nor any of its affiliates shall, directly or indirectly, solicit for partnership, employment, offer partnership or employment to, employ or engage in any capacity including as a partner, consultant or advisor any individual who is then employed or engaged, or any individual who was employed or engaged within the preceding twelve (12) months, by Techdinamics or its Affiliates unless and until Client pays to Techdinamics, as liquidated damages and not as a penalty, an amount equal to the aggregate salary, wages, fees (including bonuses) or their functional equivalents, paid by Techdinamics, its parent or any of their respective affiliates to such employee during the twelve (12) months prior to the date such employee is employed or engaged by Client. The parties agree that this is the best measure of damages to Techdinamics due a breach of this provision.
Techdinamics reserves the right to utilize contracted employees or subcontractors to meet its requirements under the terms, conditions and obligations stated in an Agreement.
Both Techdinamics and Client may use the other as a favorable reference and indicate to third parties that such party provides or receives (as applicable) services hereunder. The parties may disclose the existence and general nature of an Agreement, but the fees paid hereunder shall be considered Confidential Information. Techdinamics, in connection with its marketing activities, can disclose to prospective client’s general information of Client including the use of the Client’s trademarks, service marks and trade names.
Compliance with Applicable Laws
Each Party shall comply with all applicable Laws in connection with the performance of its obligations under this Agreement. Whenever in this Agreement reference is made to a specific Law, the reference shall be deemed to include any successor, replacement, substituted or amended version thereof.
The Parties shall co-operate with and assist one another and take such action and execute such further assurances as may be reasonably necessary to implement and carry into effect this Agreement to its full extent.
System Maintenance; Downtime.
The Services and Content will be inaccessible at certain times for scheduled system maintenance (“Maintenance Time”). While Techdinamics seeks to schedule Maintenance Time during non-peak hours and to provide 24 hours advance notice to the client, those practices cannot be guaranteed. In addition, the Services and Content may be subject to limitations, interruptions, outages, and other problems inherent in the use of the Internet and electronic communications (“Outages”). Techdinamics is not responsible for any such Outages or any damage(s) resulting from any such Outages or any Maintenance Time. If the Services and Content become inaccessible for reasons within Techdinamics control, other than for Maintenance Time, and excluding any time associated with Outages, Techdinamics will provide the client, upon client’s written request, the following monthly service fee credit for any such downtime in excess of a total of 45 minutes during a calendar month (“Downtime”): Techdinamics will provide the client a credit of five percent (5%) of client’s monthly service fee for each 30 minutes of Downtime (i.e., downtime beyond a monthly total of 45 minutes) up to a maximum credit of twenty-five percent (25%) of client’s monthly service fee. THIS CREDIT SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR DOWNTIME. If Techdinamics performance is otherwise delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facilities, material or labour (whether due to pandemic measures, or direct pandemic effects), delay or lack of communication, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond Techdinamics control, Techdinamics shall have such additional time to perform its obligations as may be reasonably necessary under the circumstances with a credit being pro-rated based on system availability.
Techdinamics has no liability whatsoever, whether financial or otherwise, for processes or flows that were not tested during project User Acceptance Testing or during the project post monitoring support period.
For Techship users under no circumstances will Techdinamics be responsible for Carrier contracts, carrier rates supplied or any miss billed amounts by the carrier.
If, subject to the foregoing, chargebacks are generated and do apply, then Techdinamics will provide maximum exposure up to 1 (one) monthly recurring billing of the affected service. Chargebacks will only be for cost of product and will not include markups, additional services, etc.
Client agrees to report the chargeback events within the following conditions:
- Electronic Data Interchange: 90 days from the initial transaction.
- Transportation: 30 days from the first carrier invoice.
- Other: 30 days from the initial incident.
Techdinamics will review the chargeback information and respond to the client within 60 days after client reported.
Limitation of Liability
The Parties agree that except as prohibited by law, if Techdinamics or any of its Affiliates, or any of their respective officers, directors, employees, agents, subcontractors or shareholders, is ever liable to Client for one or more breaches, disputes, controversies or claims arising under or in connection with Services provided hereunder (whether any such breach, dispute, controversy or claim is based upon contract, tort, statute, equity or any other legal theory), except for claims for personal injury arising out of Techdinamics’ willful misconduct or gross negligence and/or Techdinamics’ infringement of a third party intellectual property rights, then, (i) the cumulative amount of all damages and penalties, if any, recoverable by Client for all such breaches, disputes, controversies and claims will not exceed, in the aggregate, an amount equal to the total amount of the fees (excluding unamortized prepaid fees, if any) paid by Client, over a maximum of one year, under the applicable Statement of Work from which the breach, dispute, controversy or claim arose, (ii) recovery of such amount as limited hereby will be Client’s sole and exclusive remedy, and (iii) Client releases Techdinamics and its parent(s), subsidiaries, affiliates, and their respective officers, directors, employees, agents, subcontractors and shareholders, from any liability in excess of such amount. IN NO EVENT WILL TECHDINAMICS OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS OR SUBCONTRACTORS, BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF TECHDINAMICS OR SUCH OTHER PERSON HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, (II) PUNITIVE DAMAGES, LOSS OF ANTICIPATED PROFITS, SAVINGS OR BUSINESS, LOSS OF COMMERCIAL REPUTATION OR OTHER ECONOMIC LOSS, OR (III) DAMAGES THAT COULD HAVE BEEN AVOIDED, USING REASONABLE DILIGENCE, BY CLIENT OR SUCH OTHER PERSON.
Client agrees to indemnify, defend, and hold harmless Techdinamics from any and all third party claims resulting from any data provided by Client or resulting from Client’s express instructions.
Techdinamics shall, at its sole cost and expense, take out and keep in full force and effect, adequate insurance coverage sufficient in kind and in scope to comply with its professional obligations. Upon written request by Client, Techdinamics shall provide Client with certificates of insurance evidencing the coverage required under this Agreement.
Remedies and Dispute Resolution
If a dispute arises out of or relates to an Agreement, or the breach thereof, then the parties agree to use the dispute resolution process set forth in Exhibit A attached hereto. Because a breach of any obligations set forth in Paragraphs 7 and 8 will irreparably harm either party and substantially diminish the value of each party’s proprietary rights or its Confidential Information, Client and Techdinamics agree that if either party breaches any of its obligations there under, the other party shall, without limiting its other rights or remedies, be entitled to seek equitable relief (including, but not limited to, injunctive relief) to enforce its rights there under, including without limitation protection of its proprietary rights. The parties agree that a party need not invoke the procedures set forth on Exhibit A attached hereto prior to seeking injunctive or declaratory relief.
Choice of law and venue
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Parties hereby irrevocably attorn to and submit to the jurisdiction of the courts of the Province of Ontario in the City of Ottawa.
Waiver of Jury Trial
EACH OF THE PARTIES HERETO, HEREBY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH AN AGREEMENT OR ANY STATEMENT OF WORK AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO AN AGREEMENT.
The prevailing party in any action related to or arising out of an Agreement or any Statement of Work, whether such action is at the trial or appellate level, shall be entitled to its reasonable attorney’s fees and court costs.
No provision of this Agreement and no breach by either Party of any provisions of this Agreement will be deemed to have been waived unless such waiver is in writing and signed by the Party to be bound thereby. The waiver by either Party of any breach of any provision of this Agreement by the other Party will not be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.
The invalidity or unenforceability of any provision of this Agreement shall not effect the validity or enforceability of any other provision hereof and any such invalid or unenforceable provision shall be deemed to be severable.
Unless and to the extent otherwise set out in a Service Schedule, Supplier shall be an independent Supplier under this Agreement. The Parties shall at all times remain independent of each other, and neither Party nor its employees or officers shall be deemed to be the agent (except as may be expressly provided in any Service Schedule to the contrary), servant, employee, partner or joint venture of the other Party. Each Party shall pay and accept full and exclusive liability for the assessments or contributions imposed on such Party by the Employment Insurance Act (Canada), Canada Pension Plan Act, Income Tax Act (Canada), the Workplace Safety and Insurance Act (Ontario) and similar Laws
Neither party may assign an Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, an Agreement may be assigned by either party without the consent of the other to an entity controlling, controlled by or under common control with said party or in the event of a transfer of all the assets or voting stock of a party as part of a merger, acquisition, or divestiture.
This Agreement (including the Service Schedules annexed hereto) and any documents incorporated by reference herein, contain the entire agreement between the Parties in respect of the subject matter hereof and supersedes all prior agreements, negotiations, representations, requests for proposals, proposals, letters of intent, and understandings between the Parties, whether oral or written.
Consents and Approvals
Where either Party has a right of consent or approval in respect of any matter in connection with this Agreement, unless otherwise specifically provided herein, it shall not unreasonably withhold such consent or approval and shall endeavour to respond to the other Party’s request for such consent or approval in a timely manner. The foregoing requirement shall not apply in respect of a request to amend or renew the provisions of this Agreement.
All notices required by or relating to this Agreement shall be in writing and sent to the Parties by registered mail (except during postal disruptions), by courier delivery to their addresses as specified in the Statement of Work. Either party may change its address for purposes of notice by giving notice to the other party in accordance with these provisions. The notice is effective upon signed receipt by the addressee specified in the Statement of Work
Priority of Documentation
- These General Terms & Conditions and Appendices (the “General Terms”) shall apply to all Services (as hereinafter defined) delivered to the Client by Techdinamics, except when the applicability of the General Terms is excluded or restricted by law, regulations or written agreement or when amendments to these General Terms have been confirmed explicitly and in writing mutually. Any general terms and conditions proposed by the Client including those referenced in purchase orders are rejected explicitly.
- The different Appendices of these General Terms are incorporated by reference and shall apply to a Statement of Work (as hereinafter defined) whenever the type(s) of Services proposed or provided by Techdinamics may be categorized under the relevant Appendix.
- Whenever the contents or interpretation of the Statement of Work and the General Terms conflict, the General Terms shall take precedence. Whenever the content of an Appendix which contains terms and conditions related to a specific type of Service conflict with the Statement of Work or General Terms or an Appendix covering a broader range of services, the more specific Appendix applicable to the Services delivered shall take precedence over the more general Appendix which shall take precedence over the General Terms which shall take precedence over the Statement of Work.
This Agreement begins on the Effective Date set out in any quote or statement of work executed with Techdinamics and will continue unless terminated in accordance with the terms set out herein (“Termination”).
- All headings are included solely for convenience and do not affect the interpretation hereof.
- Singular and Plural. Unless the context clearly indicates otherwise, words used in the singular include the plural and words used in the plural include the singular. Where used in this Agreement, the word “including” shall be deemed to mean “including without limiting the generality of the foregoing”.
- No Strict Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
- The Parties acknowledge that they have required that this Agreement and all documents, notices and correspondence relating directly or indirectly to this Agreement be prepared in English. Les Parties reconnaissent avoir exigé que la présente convention et tous les documents, avis et correspondances y afférents directement ou indirectement soient rédigés en anglais.
- All dollar amounts referred to in this Agreement, including any Service Schedule, are in USA Dollars unless otherwise specifically indicated.
- This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.
- This Agreement, and/or each SOW which is governed by this Agreement may be executed by the Parties in separate counterparts and by facsimile transmission, Docusign or other e-signing platform, each of which when so executed and delivered shall be an original, and all such counterparts and copies shall together constitute one and the same instrument.
DISPUTE RESOLUTION PROCESS
The following procedures shall be used to resolve any disputes, claims or controversies (“disputes”) between us as provided herein. If any of these provisions are determined to be invalid or unenforceable, the remaining provisions shall remain in effect and binding on the parties to the fullest extent permitted by law.
- Discussions Between Management.
The parties shall first employ the full resources of the Executive Committee to resolve all disputes expeditiously and informally. The Executive Committee shall be composed of Techdinamics’ Chief Operating Officer and Client’s Chief Operating Officer or another designated person with comparable authority who shall act in good faith to resolve the controversy or dispute. In the event that such dispute cannot be resolved by the Executive Committee, the parties shall each involve an independent executive officer of the respective parties, each of whom shall review and discuss the dispute between them and attempt to resolve it by agreement. If such dispute cannot be resolved by the foregoing method within a reasonable period of time, the parties shall resort to the mediation procedure set forth below.
- If the process outlined in Clause 1 above fails to produce a solution acceptable to all parties, either party may request to submit a dispute to mediation by providing written notice to the other party. In the mediation process, the parties will try to resolve their differences voluntarily with the aid of an impartial mediator, who shall attempt to facilitate negotiations. The mediator shall be selected by agreement of the parties. If the parties cannot otherwise agree on a mediator, a mediator shall be designated by a mutually agreeable mediation association at the request of a party. Any mediator so designated must be acceptable to all parties.
- The mediation shall be conducted as specified by the mediator and agreed upon by the parties. The parties agree to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an amicable resolution of the dispute.
- The mediation shall be treated as a settlement discussion and therefore shall be confidential. The mediator may not testify for either party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings.
- Each party shall bear its own costs in the mediation. The fees and expenses of the mediator shall be shared equally by the parties.
- If a dispute has not been resolved within 30 days after the written notice beginning the mediation process (or a longer period, if the parties may agree to extend the mediation), the mediation shall terminate, and the parties agreed that the dispute shall be settled by arbitration. The arbitration shall be conducted in accordance with the procedures of the American Arbitration Association. In the event of a conflict, the provisions of this Exhibit A shall control.
- The arbitration shall be conducted before a single arbitrator in Toronto, Ontario, regardless of the size of the dispute, to be selected as provided in the arbitration rules agreed to by the parties. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the arbitration rules and resolved by the arbitrator. No potential arbitrator may serve unless he or she has agreed in writing to abide and be bound by these procedures. To the extent permitted by the arbitration rules and the arbitrator, the parties may appear telephonically.
- Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort. They shall have no power to award (a) damages inconsistent with an Agreement or (b) punitive damages or any other damages not measured by the prevailing party’s actual damages. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrator have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction.
- No discovery shall be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery.
TECHSHIP PLATFORM ADDENDUM
Techdinamics’ techSHIP is a cloud application running in an Amazon cloud (AWS). At the present time the application is deployed in both US and Canadian data centers.
- During the Subscription Term, Techdinamics grants Client a non-exclusive, nontransferable, royalty free, limited right to access and use the techSHIP Platform (including the material, reports, and other content available from the techSHIP Platform) for its business operations and subject to the terms of this Agreement and the Statement of Work.
- Functionality. Techdinamics represents and warrants that the techSHIP Platform will perform materially in accordance with the then current version of the applicable documentation and that Techdinamics will not decrease the functionality of the techSHIP Platform during the Subscription Term.
- Vulnerability / Patching. To protect both system and data from being compromised by external or internal entities Techdinamics follows the following procedure to ensure known system vulnerabilities are addressed. On regular bases, but not less than once every quarter, the technical team reviews the available patches and alerts related to operating system, application development framework (in-house applications), server level update. When appropriate the required patches are installed both first in development and then in production environments.
- Access Control. Access to different systems and data is limited to only those who need access to complete their business functions, including limiting access via defined IP addresses specific to Client. User roles are used to separate different levels of access. User access to applications and data is restricted by a combination of username (using email address) and password. The passwords have a preset level of complexity (min length, upper/lower characters, special characters). Passwords are stored as encrypted – no one in the organization can access the actual passwords. Users can reset the password using the self-service portal. Data between the web client and backend application are transmitted using HTTPS protocol. At the present time TLC 1.2 is used for the encryption.
- Monitoring / Logs. Server and application logs are being used to keep track of changes in application and server. The server hardware (disks, controllers, memory, and CPU) is monitored for hardware faults using AWS monitoring tools. Changes to techSHIP configurations are visible to users on the techSHIP portal. These logs are used to help identify changes made on the portal configuration. On the server-side logs are used to monitor for abnormal events. These logs are reviewed periodically to identify security violations and abnormalities. Performance monitoring helps to identify bottlenecks and other performance associate issues. Performance monitoring is achieved through monitoring modules such as scripts, utilities, and/or 3rd party applications. Server load logs are monitored and reviewed regularly.
HOSTING SERVICES ADDENDUM
- Notice Regarding Hosting Services.
Where the Services call for hosting Client applications or data, Client acknowledges that the hosting service may be contracted by Techdinamics from a third-party vendor on behalf of Client as a pass-through Service. Techdinamics assumes no liability for such hosted services more than the limitation of liability given by the third-party provider of these services under its standard terms. All service levels and service level credits, if any with respect to such hosting vendor will be defined and set forth in the applicable Statement of Work or hosting services agreement. Any fees and early termination charges or cancellation provisions will likewise be specified in the appropriate Statement of Work or hosting services agreement.
Techdinamics reserves the right to change third party hosting providers in its reasonable judgment where appropriate. If Techdinamics elects to change hosting providers during the term of an agreement then in effect, it shall do so on reasonable advance written notice to client and at its own cost and exercise reasonable efforts to minimize disruption to Client’s use of the Services.
SERVICES PROVIDED IN UNITED STATES
Notwithstanding any other provision set forth in these General Terms, with respect to Services provided in the United States, the following terms shall apply:
- “Techdinamics” as used throughout these General Terms shall mean Techdinamics, an Ontario Corporation and registered as Techdinamics Integrations Inc.
Amounts billed will be in United States American Dollars unless specified otherwise.
- Applicable Law and Exclusive Venue.
Any Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to the conflict of laws provisions thereof. Each of the parties hereby submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals from them for purposes of all legal proceedings arising out of or relating to this Agreement and the transactions contemplated hereby.