Standard Terms and Conditions
These terms and conditions (the “Terms”) are the Terms upon which Innerworks Computer Services Inc. (“Vendor”, “we”, “our”, or “us”) is prepared to supply certain IT solutions as described in the Quote (Attachment 1) (the “Software Solutions”) as approved by the Customer, and certain hardware as described in List of Hardware (Attachment 2) (the “Hardware”) as approved by the Customer.
The “Customer” is the party listed in the Sales & Services Agreement.
These Terms govern the supply of Software Solutions and Hardware by Vendor to the Customer, and any Ancillary Services which may be listed in the Quote (Attachment 1). Please read all of these Terms. By ordering and using any Software Solutions, Hardware, or Ancillary Services, the Customer accepts these Terms without change. Some Terms may not apply to you; for example if you did not order any Hardware, then Attachment 2 will be blank and the Terms applicable to Hardware will not apply. If Customer does not accept these Terms, the Customer is not authorized to acquire Hardware or use Software Solutions or Ancillary Services from us.
1.0 SALES TERMS
1.1 Supply of Hardware and Software Solutions. We agree to supply the Hardware and to provide the Software Solutions to the Customer. The accepted Quote (including any functionality, specifications, description, pricing and delivery times) is described in Attachment 1, and the accepted list of Hardware is described in Attachment 2. The Customer shall ensure that the terms of Attachment 2 and Attachment 2 are complete and accurate.
1.2 Other Terms Excluded. Other than as described in Attachment 1 and Attachment 2, these Terms specifically exclude any other terms and conditions (including any standard-form purchase order, any other quote, proposal, bid, confirmation of order, email, specification or other similar document, terms or conditions which the Customer purports to apply). All other descriptions, samples, drawings, descriptive matter, website content, brochures, manufacturer’s materials, catalogues and advertising are for the sole purpose of giving an approximate idea of the Hardware and Software Solutions, and do not modify these Terms. The specifications in the accepted Quote (Attachment 1) and List of Hardware (Attachment 2) shall apply to the Hardware and Software Solutions supplied to the Customer.
2.0 CHANGE ORDERS
2.1 Change Orders. Each party may at any time propose changes to the Software Solutions in the form of a draft change order, a revised quote, or an adjusted monthly invoice (“Change Order”). For example, if the Customer requests an increase or decrease in the number of authorized users or upgraded license, a revised monthly invoice will serve as the Change Order. Some changes requested by Customer may require additional work to evaluate the scope, or to re-design a solution, and this evaluation or design work may be charged to Customer at then-current rates. As mutually agreed, the changes will be documented in a Change Order, signed by each party, along with any equitable adjustments in the price or delivery schedule. We are not obligated to proceed with changes until both parties agree in writing. Unless otherwise agreed by the parties, pricing for additional work arising from changes in laws, rules and regulations shall be at then-current time and material rates. Once approved in writing, a Change Order will be deemed to be part of this Agreement.
3.0 HARDWARE LEASE
If you choose a Hardware lease option, the following terms apply:
3.1 Lease Terms. Customer hereby agrees to lease from Vendor and Vendor hereby agrees to lease the Hardware to Customer. Hardware which is subject to lease terms is also referred to as “Leased Hardware”. The Quote (Attachment 1) will specify all amounts owing for the lease of Leased Hardware (the “Lease Payments”), and a lease term (the "Lease Term"). The Lease Term is the period during which Leased Hardware is leased to Customer, commencing on the date at the top of Page 1 of the Agreement, or the date delivered by Vendor, or as otherwise specified in the Quote (Attachment 1) and terminating upon the lease expiry date specified in the Quote. These Terms shall continue in full force and effect until all amounts owing to Vendor hereunder have been paid in full.
3.2 Delivery of Leased Hardware. We will deliver the Leased Hardware at the address and on the terms listed in the Quote (Attachment 1). If the Leased Hardware delivered does not correspond in quantity, type or price to those itemized in the corresponding Quote (Attachment 1) or List of Hardware (Attachment 2), Customer will notify us within 5 days after receipt, after which period the Leased Hardware is deemed accepted.
3.3 Definition of Replacement Amount. The term "Replacement Amount" means the full replacement cost of the Leased Hardware, as determined in writing by Vendor acting reasonably.
3.4 Return of Hardware: If specified in the Quote (Attachment 1), the Customer may be obliged to return certain Leased Hardware to the Vendor at the end of the Lease Term. In that case, Leased Hardware must be returned in good condition (ordinary wear and tear excepted) and accepted by Vendor. Customer shall continue to pay all Lease Payments and to comply with all other payment and other obligations under the Agreement until return. If, at the Lease Term expiry date, the Customer has not returned the Leased Hardware, Vendor may charge, and Customer shall pay Vendor upon demand, the Replacement Amount.
If, upon return of Leased Hardware, Vendor determines that repairs are required, other than repairs caused by normal wear and tear, Vendor shall notify Customer of such repairs and the estimated cost thereof, and Customer shall be responsible to fully reimburse Vendor for the cost of all such repairs.
3.5 Lease-to-Own. If specified in the Quote (Attachment 1), Hardware may be supplied on a lease-to-own or rent-to-own basis. In that case, the Customer shall have an option to purchase Leased Hardware, and upon payment of all amounts due by Customer to Vendor in respect of such Leased Hardware by Customer to Vendor: (i) the lease for such Leased Hardware shall cease to accrue and the Lease Term for such Leased Hardware shall terminate, and (ii) all right, title and interest to such Leased Hardware will be deemed to automatically transferred to Customer, free and clear of all liens and encumbrances. In this case, the Customer has no obligation to return, and the Vendor has no obligation to accept the return, of this Leased Hardware.
3.6 Remote Hardware. If specified in the Quote (Attachment 1), Hardware may be supplied on a remote or virtual basis, where the Leased Hardware is not located on Customer premises, and is not in the physical control or possession of the Customer, in which case the Customer is responsible to make all Lease Payments during the Lease Term, but all the terms applicable to delivery and return shall not apply to any Hardware provided on a remote or virtual basis.
3.7 Assumption of Risk: Except as provided otherwise in this Agreement, Customer assumes all risks and liability for loss or damage to the Leased Hardware, and for injuries (including death) and property damage arising from the use and operation, possession or use of the Leased Hardware or from any cause whatever arising during any Lease Term and, without limiting the generality of the foregoing, liability or loss arising from fire, theft, loss, seizure, confiscation or expropriation. Customer will obtain and maintain suitable insurance coverage for such risks.
3.8 Event of Loss: In the event any Leased Hardware is lost, stolen, seized, sold, damaged or destroyed or any of the fittings, components, appliances or attachments to the Leased Hardware are worn out, lost, stolen, damaged (ordinary wear and tear excepted) or destroyed (a "Damage or Loss Occurrence"), Customer shall, within four (4) days notify Vendor with respect to such Damage or Loss Occurrence. In the event that the Damage or Loss Occurrence has rendered the Leased Hardware beyond economic repair, the Customer shall pay to the Vendor, within thirty (30) days of such determination, the Replacement Amount. Upon payment of the Replacement Amount and all other amounts due by Customer to Vendor in respect of any Leased Hardware by Customer to Vendor: (i) the lease for such Leased Hardware shall cease to accrue and the Lease Term for such Leased Hardware shall terminate and (ii) Vendor shall transfer all right, title and interest to such Leased Hardware to Customer, free and clear of all liens and encumbrances.
3.9 Ownership: Vendor shall retain full title to, ownership of, and all property and rights to any Leased Hardware. No right, title or interest in or to Leased Hardware shall pass to Customer other than, conditional upon Customer's compliance with and fulfilment of the terms and conditions of this Agreement, the right to quietly possess and use the Leased Hardware during the Lease Term. Customer shall not sell, offer for sale, assign, mortgage, pledge, encumber, sublet, part with possession of, or otherwise deal with the Leased Hardware or any part thereof, or with the benefit of this Agreement, without the prior written consent of Vendor. Customer shall indemnify Vendor from and against all losses, costs, demands and expenses (including legal fees, disbursements and other costs) incurred by Vendor by reason of or in respect of the removal or attempted enforcement of any liens, charges, demands or encumbrances or any attempted or actual distress, execution or seizure of Leased Hardware. All Leased Hardware shall be identified as the property of Vendor through such plates or other marks as Vendor may see fit, and Customer shall permit any such plates or marks to be changed or removed.
3.10 No Conditional Sale; Personal Property. It is the intention of the parties to hereby create a lease of the Leased Hardware, and not a conditional sale. The Customer grants to Vendor a security interest in the Leased Hardware to secure the obligations under this Agreement. It is further the intention of the parties that Leased Hardware shall at all times be and remain moveable personal property, notwithstanding any purpose for which Leased Hardware may be used or that it may become affixed, attached or joined to any land or immovable property or any structure thereon. To provide solely for the eventuality that a court might hold the Hardware or any of it to be a fixture, the parties state for the purpose of complying with the legal requirements that collateral is or includes fixtures.
3.11 Filings: Vendor may file or record this Agreement, a financing or financing change statement, or any other notice in respect thereof or any appropriate document with appropriate offices of public record in any jurisdiction where the Leased Hardware may at any time be located or where Customer may be resident or carry on business. Customer agrees to do all things and execute all documents that, in Vendor's reasonable opinion, are necessary or desirable to protect Vendor's security interest in the equipment, including the execution of financing or financing change statements. If Customer, upon request by Vendor, fails to sign any such financing or financing change statement, notice or other document, Vendor may execute the same in the name of and on behalf of Customer. Customer hereby irrevocably appoints Vendor as its attorney for such purposes. Customer hereby waives its right to receive a copy of any financing statement or financing change statement registered by Vendor in connection with this Agreement.
4.0 SALE OF HARDWARE.
If you choose a Hardware purchase option, the following terms apply:
4.1 Purchase Price. The purchase price for the Hardware shall be listed in the Quote (Attachment 1).
4.2 Delivery. On payment of the purchase price for the Hardware, Vendor shall deliver Hardware to Customer to the shipping address listed in the Quote (Attachment 1). Except for those installation or other obligations specified in the Quote (Attachment 1), we shall not be liable in any claim asserted by Customer with respect to shipping or delivery. Partial deliveries will be permitted. If the Hardware delivered does not correspond in quantity, type or price to those itemized in the corresponding Quote (Attachment 1) or List of Hardware (Attachment 2), Customer will notify us within 5 days after receipt, after which period the Hardware is deemed accepted. If any Hardware cannot be shipped to or received by Customer when ready, due to any cause not attributable to us, we will notify Customer and additional fees may apply.
4.3 Title. On payment of the purchase price for the Hardware, the Vendor transfers all right, title and interest to such Hardware to Customer, free and clear of all liens and encumbrances. Title to Hardware shall pass to Customer when Hardware is made available to common carrier for shipment from our facility. Notwithstanding the foregoing, if any software is bundled with the Hardware hereunder, the Customer only obtains a license to use the software.
4.4 Hardware Warranty. We do not manufacture the Hardware, and merely act as a reseller, but we will make all reasonable efforts to make available to the Customer any manufacturer’s warranty for the Hardware. Any warranty claims, repairs, defective components, product liability issues, recalls or other manufacturer’s recommended service or maintenance, is the responsibility of the Customer as purchase of the Hardware.
5.0 SOFTWARE SOLUTIONS
If you choose a software solution, the following terms apply:
5.1 Provision of Software Solutions. In consideration of the payment of all applicable license, access or service fees, Vendor will provide access to the Software Solutions as listed in the Quote (Attachment 1) during the term of this Agreement for the number of licenses, users, seats, authorized users as listed in the Quote (Attachment 1).
5.2 Additional Terms. If Customer subscribes and pays for access to Software Solutions, then additional software license terms may apply. If additional software license terms do not accompany the Software Solutions when access is granted by the Vendor, the following terms apply:
(a) Vendor is responsible for obtaining and providing access to the Software Solutions for the Customer.
(b) Any rights of access granted under these Terms are granted only to Customer and not to any affiliated companies, except as specified in the Quote (Attachment 1).
(c) The Customer is responsible for obtaining and maintaining necessary equipment, devices, computers, internet connections and meeting any system requirements, technical standards and specifications stipulated by Vendor from time to time (such as browser versions) to access and use the Software Solutions, and for maintaining any account logins, if applicable. Customer will be responsible for all use of the Software Solutions by users through its account logins, if applicable.
(d) Access rights shall expire on termination of this Agreement, or in the event of a breach or failure of Customer to pay the associated license, access or service fees, as listed in the Quote (Attachment 1).
5.3 Third-Party Software. The Customer shall strictly perform its obligations under any licence terms applicable to any third party Software Solutions provided to it by the Vendor.
5.4 IP Rights. The Customer acknowledges that the Software Solutions are licensed, not sold, and any Software Solutions are the intellectual property of and are owned by Vendor or third-party licensors.
5.5 Support & Updates. Software Solutions do not include technical support. Vendor’s responsibility for support is explicitly limited to the Software Solutions provided by the Vendor as listed in the Quote (Attachment 1). Depending on the Customer’s package, we will make available generally released program updates, excluding any new versions, upgrades or new modules released as a separately-priced item.
Support does not include on-site support; this may be provided on a time and materials basis, based on the availability of resources and subject to a Change Order. Additional charges may apply. Support does not apply to: (i) Any problems or issues caused by or attributable to user error, incompatible devices, accident, misuse, or other external cause; (ii) support, troubleshooting or maintenance for the hardware or software of third parties, platform vendors or others; (iii) any problems or issues that could be resolved by upgrading to the then current upgrade version; (iv) installation, removal or disposal of any hardware or equipment, or the provision of replacement hardware or equipment; (v) any “beta” or “prerelease” software; (vi) third-party web browsers, email applications, and Internet service provider software or changes in mobile devices hardware or software; or (vii) viruses, worms, malware or failures in the internet.
5.6 Acknowledgements. We do not warrant that the Software Solutions will be uninterrupted or error-free, and while we work with Customers to provide suitable options, the final decision is the Customer’s and we do not provide a guarantee that the Software Solutions will meet or achieve the Customer's business goals or are suitable for Customer’s business needs. While the Software Solutions have been checked using commercially available virus-checking software, we do not warrant that the Software is free from viruses, trojans, malware or any other form of malicious code.
6.0 ANCILLARY SERVICES
If an approved Quote (Attachment 1) or Change Order includes the supply of services such as customization, training, support, after-sales service, data services, installation or other services (“Ancillary Services”), then the following terms apply:
6.1 Data Archiving & Security. If we provide data hosting as itemized in an approved Quote or Change Order, then Customer is responsible for archiving and data back-up for its own business continuity or records storage purposes, and for security and encryption of any confidential or sensitive content or data. Customer is solely responsible for any content or data that is input, output, uploaded or downloaded by Customer through the Software Solutions.
6.2 Site Access. As an Ancillary Service, we may be required to attend Customer’s site for after-sales services, as itemized in an approved Quote or Change Order. If site access is required by our personnel as part of any Ancillary Services, then Customer shall take all necessary precautions, at all times, for the health and safety of our personnel at the site. These include, but are not limited to: providing to us for review, and instructing our personnel regarding, Customer’s safety practices; proper and safe handling of, and protection of our personnel from exposure to, pandemic infection controls, hazardous materials; energization and de-energization of all power systems (electrical, mechanical) using safe and effective lock-out/tag-out procedures; and conducting periodic safety meetings.
6.3 Training. Training services are only provided as an Ancillary Service if included within an approved Quote or Change Order, and may be provided on site or by remote or virtual training sessions.
6.4 Expenses. Our necessary and reasonable travel expenses incurred in performance of Ancillary Services including travel to and from the Customer site, will be reimbursed by the Customer, provided that such expenses are incurred in connection with such travel, including flights, meals, accommodations, taxis or rental cars, and are accompanied by proof of payment receipts being submitted to Customer. Such expenses may be invoiced to Customer when invoices are submitted for payment in relation to the Ancillary Services.
6.5 Subcontractors. We may provide some Ancillary Services through selected subcontractors, the cost of which may be invoiced to Customer when invoices are submitted for payment in relation to the Ancillary Services.
7.0 CONFIDENTIALITY & PRIVACY
7.1 Confidentiality. If Customer discloses, or in the course of providing Software Solutions or Ancillary Services, the Vendor has access to, any of the Customer’s confidential information, or Customer’s personal information, then the Vendor agrees to keep and use any such Information in confidence and will not, without the Customer’s prior written consent, disclose such information to anyone else, except access by Vendor’s employees, personnel, or approved subcontractors who may require access on a need-to-know basis for the Vendor’s performance of its obligations and exercise of its rights under this Agreement.
7.2 Privacy. Vendor does not have any intent to collect, use or disclose any of the Customer’s personal information, except such reasonable temporary access or viewing which may be incidental to any provision of Software Solutions or Ancillary Services (such as the provision of any helpdesk services, training, contracted data hosting or back-up services, or routine storage of voice-mails, which may be incidental to the supplied Software Solutions or Ancillary Services).
8.0 THIRD-PARTY PRODUCTS OR SERVICES
8.1 Third Party Products. In Vendor’s capacity as a supplier of the Hardware and Software Solutions, Vendor will supply or make available to Customer third party products or services (“Third Party Products”). Vendor makes no representations or warranties with respect to such Third Party Products including without limit any warranties of non-infringement or other ownership of the intellectual property of such Third Party Products. Inclusion of Third Party Products within the supplied Hardware or Software Solutions or other Ancillary Services supplied by us does not mean, unless expressly stated otherwise, that Vendor has conducted independent due diligence or investigation into Third Party Products for specific performance levels or otherwise. Customer’s use of Third Party Products may be governed by separate terms and conditions with such third parties.
8.2 Non-Availability of Third Party Products. To the extent any third party manufacturer, vendor or service provider ceases supply of such products or services, including any Software Solutions described in the Quote (Attachment 1), the Vendor may by written notice to Customer, terminate the supply of the affected product or service (including any affected Software Solutions).
9.0 PAYMENT TERMS
9.1 Payment. The Customer will pay to Vendor the pricing, plus applicable taxes, corresponding to the Hardware and Software Solutions, and any Ancillary Services supplied, on the dates specified in the Quote (Attachment 1). All payments due that are unpaid 30 days after date due will be charged interest at the rate listed in our invoice.
9.2 Payment in Advance. If at any time we reasonably determine that Customer's financial condition does not justify the continuation of our performance, we may require full or partial payment in advance, or shall be entitled to suspend or terminate these Terms.
10.0 WARRANTIES & DISCLAIMER OF WARRANTIES.
10.1 Limited Warranty. We will supply the Hardware, Software Solutions, and Ancillary Services (as applicable) in a way that conforms substantially with all material specifications listed in an approved Quote or Change Order, for a period of 30 days from the date of delivery.
10.2 Exclusions. This limited warranty is contingent upon proper use of the supplied Hardware and Software Solutions and does not cover any such products which have been tampered with, modified, or subjected to unusual use or physical or electrical stress. This limited warranty does not apply to supplied products that have been subjected to improper testing, mishandling, misuse, disassembly, assembly together with parts which are not authorized by or did not originate from Vendor, whether by Customer or others.
10.3 User Responsibility. Hardware and Software Solutions supplied by Vendor are only intended to be used by trained personnel. Responsibility for the proper use of Hardware and Software Solutions rests solely with the Customer. Customer is responsible for the proper supervision, control, and management of use of supplied products. This responsibility includes determining and establishing proper operating environment, settings and situations for the use of the supplied products in order to obtain desired results.
10.4 DISCLAIMER. OTHER THAN THOSE EXPRESSLY STATED IN THESE TERMS, VENDOR EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE FOR THE HARDWARE, SOFTWARE OR SERVICES, INCLUDING, WITHOUT LIMIT, THE CONDITION OF ANY HARDWARE, SOFTWARE SOLUTIONS OR ANCILLARY SERVICES, OR THAT THEY WILL MEET THE REQUIREMENTS OR ACHIEVE THE RESULTS DESIRED BY THE CUSTOMER. VENDOR FURTHER DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER FOR LOSSES, DAMAGES, OR INJURIES TO CUSTOMER OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE HARDWARE, SOFTWARE SOLUTIONS OR ANCILLARY SERVICES OR CUSTOMER’S USE THEREOF. HARDWARE, SOFTWARE SOLUTIONS AND ANCILLARY SERVICES ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
11.0 LIMITATION OF LIABILITY.
11.1 LIMITATION OF LIABILITY. In no event shall Vendor be liable to Customer or any other person or entity for any direct, indirect, exemplary, incidental, special, consequential or punitive damages, including without limit lost profits, lost income, lost anticipated sales, lost opportunities, business interruption, downtime, failure to realize unexpected savings, damage to property, claims of third parties, lost goodwill, lost data, or other intangible losses or other economic loss arising from customer or other parties’ use of the Hardware, Software Solutions or Ancillary Services, including any loss, delay, or damage of any kind resulting from defects or inefficiency of the Hardware, Software Solutions or Ancillary Services. This exclusion of liability applies whether the liability is based in contract, tort (including negligence and strict liability), law, equity, statute or otherwise.
In no event shall Vendor be liable for the cost of substituted services Customer obtains from third parties to cover any Hardware, Software Solutions or Ancillary Services which are defective or otherwise not in compliance with these Terms.
11.2 MAXIMUM LIABILITY. VENDOR’S LIABILITY, REGARDLESS OF HOW SUCH LIABILITY ARISES, IN CONNECTION WITH ITS SUPPLY OF HARDWARE, SOFTWARE OR ANCILLARY SERVICES SHALL NEVER EXCEED: THE PRICE PAID OR PAYABLE BY CUSTOMER FOR THE HARDWARE, SOFTWARE SOLUTIONS OR ANCILLARY SERVICES, SPECIFICALLY GIVING RISE TO THAT LIABILITY, OR THE TOTAL AMOUNT PAID BY THE CUSTOMER TO THE VENDOR IN THE 6 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THAT LIABILITY, WHICHEVER IS LESSER. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF WHETHER THE BASIS FOR THE CLAIM IS IN CONTRACT, TORT (NEGLIGENCE AND STRICT LIABILITY) LAW, EQUITY, STATUTE OR OTHERWISE, BUT SHALL NOT APPLY IN CASES OF THE FRAUD, CRIMINAL ACTION, OR WILLFUL MISCONDUCT OF THE VENDOR.
12.1 Insurance. Each party shall obtain and maintain at its own cost, adequate liability insurance covering contractual indemnities in amounts sufficient to cover such obligations.
13.0 DEFAULT & REMEDIES.
13.1 Default and Remedies. If (a) Customer defaults in the payment of any amounts due under these Terms, or (b) Customer defaults in the performance of any other covenant herein and such default shall continue for 30 days after written notice hereof to Customer by Vendor, or (c) Customer becomes insolvent or make an assignment for the benefit of creditors, or (d) Customer ceases or threatens to cease to carry on business in the normal course, or (e) Customer applies for or consents to the appointment of a receiver, trustee, or liquidator under bankruptcy laws (including, without limit, a petition for reorganization, arrangement, or extension) or under any other insolvency law or law providing for the relief of debtors, then, if and to the extent permitted by applicable law, Vendor shall have the right to exercise any one or more of the following remedies:
(a) To sue for and recover all unpaid fees, and other payments, then accrued or thereafter accruing, with respect to any supplied Hardware or Software Solutions or Ancillary Services or other amounts owing;
(b) To enter upon the premises of the Customer or any other premises where any Leased Hardware (if applicable) may be situated and repossess to take possession of all or any part of the Leased Hardware, or to remove all or any part of the Leased Hardware to such place as the Vendor deems advisable, by any method permitted by law, and the Customer hereby waives and releases the Vendor from all claims in connection therewith or arising therefrom;
(c) To terminate this Agreement;
(d) To pursue any other remedy at law or in equity.
Notwithstanding any said seizure or repossession of Leased Hardware (if applicable), or any other action which Vendor may take, Customer shall be and remain liable for the full performance of Customer’s obligations to be performed under these Terms. All such remedies are cumulative, and may be exercised concurrently or separately.
14.0 TERM & TERMINATION
14.1 Term. Customer acknowledges and agrees that these Terms shall remain in effect as listed in the Quote (Attachment 1) or for successive Change Orders, if accepted by Vendor, each of which will be considered an attachment to these Terms.
14.2 Termination. Either Party may terminate this Agreement in the case of a breach by the other party, where that breach has not been cured within 30 calendar days' prior written notice to the other. Vendor reserves the right to terminate under Section 8.2 and 13.0. Either Party may terminate this Agreement without any reason upon 120 calendar days' prior written notice to the other, subject to Section 14.3.
14.3 Early Cancellation. If Customer wishes to terminate this Agreement prior to the agreed-upon termination or expiry date for any reason (except termination due to a breach by the Vendor), then Customer must pay any early cancellation fee which is stipulated in the Quote (Attachment 1), including (if applicable) the Replacement Amount applicable to Leased Hardware. Customer acknowledges that any termination of Services will not discharge any of Customer’s obligations to pay for any charges or fees owed to Vendor at the time of termination or any other accrued liabilities.
14.4 Effect of Termination. Upon termination, Customer will immediately return all Leased Hardware, and cease all use of and access to the Software Solutions.
14.5 Survival. No termination of this Agreement, however effectuated, will release the parties from their rights and obligations under Sections 3.4 (Holdover Payments), 5.4 (IP Rights), 11.0 (Limitation of Liability), 13.0 (Default & Remedies), and 15.8 (Choice of Laws and Courts).
15.1 Entire Agreement. These Terms constitute the entire agreement between Vendor and Customer relating to the Hardware and Software Solutions, any Ancillary Services, and supersede any prior understandings or agreements (whether oral or written), claims, representations, and understandings regarding such subject matter and these Terms may not be amended or modified except in writing.
15.2 Paramountcy. In the event of a conflict between a Quote (Attachment 1), or Change Order, and these terms and conditions, the conflict shall be resolved with priority to these Terms.
15.3 Independent Contractor Relationships. Neither party is an agent or employee of the other; Vendor is an independent contractor at all times and neither Vendor nor any of Vendor’s employees will be considered an employee of Customer.
15.4 Force Majeure. Other than for the payment of fees, neither party shall be liable for any causes beyond their control, including delay in or non-performance of their obligations because of acts of God, war, civil unrest, pandemic, or government order or regulation (excepting out any current pandemic conditions existing at the date of this Agreement).
15.5 Assignment. These Terms and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Vendor and Customer. Customer may not assign, convey, subcontract or delegate its rights, duties or obligations hereunder, or undergo any purported assignment via change of control, without the prior written consent of Vendor, not to be unreasonably withheld.
15.6 Severability. If for any reason a court of competent jurisdiction finds any provision of these Terms to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms will not in any way be affected or impaired thereby.
15.7 Waiver. Vendor will not be considered to have waived any of its rights or remedies described in these Terms unless the waiver is in writing and signed by Vendor.
15.8 Choice of Laws & Courts. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada, and the parties submit to the exclusive jurisdiction of the courts in the Province of Alberta for the resolution of any disputes arising under this Agreement.
End of Terms
[Version 12 / 2020]