Connected Worker - Lone Worker – Terms & Conditions
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross-referenced in this Section 1.
1.2 “Application Service(s)” will mean the technology and application software set forth and described in the Proof of Value Letter, or in a Work Statement to this Agreement.
1.3 “Authorized End User” shall mean, collectively, any individual accessing or using the Application Service under the rights granted to Customer pursuant to this Agreement.
1.4 “Authorized End User Data” means any data related to Authorized End Users available in connection with the Application Service(s).
1.5 “Confidential Information” means any and all data or information including specifications, documents, correspondence, research, software, trade secrets, discoveries, ideas, know-how, designs, drawings, product information, technical information and all information concerning the operations, affairs and businesses of a party, the financial affairs of a Party and the relations of a party with its customers, employees and service providers, and any such information of customers, affiliates or representatives of a party, which is disclosed directly or indirectly by or on behalf of such Party (the “Disclosing Party”), whether directly in oral or material form to the other party (the “Receiving Party”). Confidential Information also includes any data or information described above which the Disclosing Party has obtained from a third party and which the Disclosing Party treats as proprietary or designates as Confidential Information, whether or not owned or developed by the Disclosing Party. Confidential Information does not include data or information that: (a) is within the public domain at the date of disclosure by the Disclosing Party or which thereafter enters the public domain through no fault of the Receiving Party or its Representatives or Affiliates (but only after it becomes part of the public domain); (b) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, and is not subject to confidentiality restrictions; (c) following its disclosure to the Receiving Party, is received by the Receiving Party without obligation of confidence from a third party who the Receiving Party had no reason to believe was not lawfully in possession of such information free of any obligation of confidence; or (d) is independently developed by the Receiving Party without reference to or knowledge of the Disclosing Party's Confidential Information.
1.6 “Customer Content” will mean Customer Confidential Information, Personal Information or other information stored on the Application Service, including Authorized End User Data.
1.7 “Deliverables” means any and all deliverables that are produced, created, provided or delivered to Customer by Company as part of the Professional Services.
1.8 “Device(s)” means hardware and related software (other than the Application Service(s)) to be provided by Company under this Agreement as described in the Solution Details.
1.9 “Documentation” will mean the Supplier’s materials and information describing the Services and Devices (including information on Supplier’s website, catalogues and marketing materials).
1.10 “Non-Subscription Services” means the services that may be provided to Customer by Company under this Agreement that are not Subscription Services. Non-Subscription Services may include consulting, implementation, customization and other services at the discretion of the Company.
1.11 “Personal Information” means information that is about an identifiable individual, including information that can be associated with, or relates back to, an identifiable individual; and is disclosed or transferred by Customer to Company pursuant to this Agreement or is otherwise collected or compiled by Company in the performance of its obligations under this Agreement.
1.12 “Services” means the Subscription Services and the Non-Subscription Services.
1.13 “Proof of Value Letter” means the signed letter agreement between Company and Customer entitled “TELUS IoT Portfolio Proof of Value Summary”.
1.14 “Specifications” means: (a) the functional or technical description of the Devices set out in any brochure, literature or other Documentation relating to the Devices made publicly available by Supplier and/or provided by Company to Customer, except to the extent inconsistent with any provision of this Agreement, or (b) any other Device specifications the Parties may mutually agree upon in writing.
1.15 “Subscription Services” means Customer’s and Authorized End Users’ access to and use of and Company’s provision of the Application Services in accordance with the terms and conditions set forth in this Agreement.
1.16 “Supplier” means the Company supplier that supplies all or a portion of the Services.
1.17 “Work Statement” has the meaning set out in Section 2.5.
2. ACCESS AND USE.
2.1 Provision of Access. Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a personal, non-exclusive, non-transferable right to access the features and functions of the Application Service listed in a Solution Details or a Work Statement during the applicable Service Term for the Customer’s internal use (unless otherwise authorized by Company in writing), solely for use by Authorized End Users in accordance with the terms and conditions herein. Such use shall be limited to use of the Application Service: (a) during the Trial Period, for the purposes of evaluating the Proof of Value objectives agreed by the Parties; and (b) at all other times during the Service Term, for the benefit of, or in relation to, the operation of Customer’s business. The Customer will not download or install the Application Service onto any computers or devices. Company shall also provide Customer the Documentation to be used by Customer in accessing and using the Application Service. Company will supply the Devices to Customer by the applicable delivery date(s) as described in this Agreement. Company is responsible for maintaining a backup of Customer Content, for an orderly and timely recovery of such data in the event that the Services may be interrupted.
Customer shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Application Service, and shall cause Authorized End Users to comply with such provisions. The method and means of providing the Services will be under the exclusive control and management of Company.
2.2 Usage Restrictions. Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate the Application Service; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of Application Service is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application Service, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Application Service, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of the Application Service; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Application Service; or (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2. Customer will not use the Application Service, Deliverables or Devices except in compliance with Company’s or Supplier’s obligations to any third party with respect thereto, provided that Company has notified Customer of such obligations. Customer will ensure that its use of any of the Application Services, Deliverables and Devices complies with all applicable laws, statutes, regulations or rules, including any export and import requirements. Customer will further comply with any documentation or written requirements provided by Company to Customer and any EULA that applies to the Application Service or any Device, and any best practices and industry specifications when using the Application Service.
2.3 Retained Rights; Ownership. Company and/or its licensors have developed and use valuable technical and non-technical information, trade secrets, know-how and the like in the Services and Devices and agrees that, except for the limited rights granted to Customer under this Agreement or as otherwise agreed in writing, all patents, petty patents, trade and service marks, design rights, copyrights, know-how, trade secrets and other intellectual and industrial property rights (collectively, "Intellectual Property Rights") in and to the Services and Devices are and shall remain the property of Company and/or its licensors. Except as otherwise provided herein, as between the Parties, Company shall exclusively own all right, title, and interest in and to the Devices and the Services, including all Intellectual Property Rights therein, and any enhancements, updates, improvements or other modifications to any of such Devices and Services, whether developed before, during or after performance of the Services hereunder and whether or not developed in connection with the Services. Customer shall not take any action to jeopardize, encumber, limit, or interfere in any manner with Company’s or its licensors' ownership of and rights with respect to the Devices and Services. As between the Parties, each party will be and remain the sole and exclusive owner of its concepts, ideas, studies, artwork, proofs, text, software, designs, techniques, know-how, documents, inventions, information, drawings, program, campaigns, trademarks, service marks, slogans, written materials, photographs, graphic materials, audio-visual works, music, transcriptions, and other materials owned or developed by or on behalf of such Party (including, for purposes of this Agreement, any materials belonging to or provided by a Party's agencies, contractors, subcontractors or partners to the other Party whether before or after the date hereof) before the Effective Date, and all Intellectual Property Rights therein, except as expressly set out otherwise herein. Unless otherwise expressly agreed in any particular Work Statement, ownership of all work product, developments, inventions, technology or materials provided through the performance of Professional Services, including any Deliverables, shall be solely owned by Company, subject to the usage rights granted to Customer under the relevant Work Statement.
2.4 Suspension. Company may restrict, suspend, or terminate some or all of the Services or terminate this Agreement or any Service Term if the Customer fails to pay any amounts when required under this Agreement, by giving 10 days’ advance notice to the Customer. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Service if: (a) Company reasonably determines that (i) there is a threat or attack on the Application Service; (ii) Customer’s or any Authorized End User’s use of the Application Service disrupts or poses a security risk to the Application Service or any other customer or vendor of Company; (iii) Customer or any Authorized End User is/are using the Application Service for fraudulent or illegal activities; (iv) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar proceeding; (v) Company’s provision of the Application Service to Customer or any Authorized End User is prohibited by applicable law; or (vi) any vendor of Company has suspended or terminated or is otherwise unable to provide the Services or Devices (each such suspension, in accordance with this Section 2.4, a “Service Suspension”). Company will make commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Company will use commercially reasonable efforts to resume providing access to same as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any Authorized End User may suffer as a result of a Service Suspension.
2.5 Professional Services. Customer may request that Company perform professional services from time to time by delivering a written request describing the proposed professional services. Company shall prepare a draft work statement (each, a “Work Statement”). Such Work Statement shall describe the fees, costs and expenses payable by Customer to Company in connection with the performance of such services, and a description of such services (“Professional Services”). Until mutual acceptance in writing of the proposed Work Statement, Company shall have no obligation to perform the proposed Professional Services. Each Work Statement, regardless of whether it relates to the same subject matter as any previously executed Work Statement(s), shall become effective upon execution by authorized representatives of both Parties. Company shall perform the Professional Services in a workmanlike, professional, prompt and diligent manner by individuals with suitable training, education, experience, and skill to provide the Services and Deliverables. Customer shall make available in a timely manner at no charge to Company all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer required by Company for the performance of the Professional Services. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to Company, office space, services and equipment (such as copiers, fax machines and modems) as Company reasonably requires to perform the Professional Services.
2.6 Devices. Company warrants that: (a) the Devices will be new and free from defects in material, workmanship and design, in good working order, and will conform to and operate in accordance with the Specifications (the “Device Warranty”); (b) where Customer purchases Devices, title to such Devices will be transferred to Customer free of all liens, imperfections in title, security interests, claims, charges, restrictions and encumbrances; and (c) the Devices will comply with all applicable Canadian Standards Association and Innovation, Science and Economic Development Canada (ISED) rules, regulations, and standards, including certification, registration, testing, marking and labelling requirements. The Device Warranty shall commence on the date of installation of the Devices and shall be in effect for a period of two years from that date (the “Warranty Period”). All Devices not in compliance with the Device Warranty shall, at Customer’s option, be repaired, adjusted or replaced at no cost to Customer. Outside the Warranty Period, Supplier will maintain ownership and allow Customer to use the Device at no cost; however, Customer will at this time be responsible for loss and damage to the Device. Customer may continue using the Device beyond the Warranty Period or may replace it at cost for a renewed warranty. Any replacement, repair modification, installation, or other service performed by Company shall be warranted to the same extent as above for the remainder of the Warranty Period or for ninety (90) days, whichever is longer. Unless otherwise directed by Customer, TELUS will deliver the Devices in accordance with the following delivery terms: (x) DDP (to the Customer-specified delivery site) (Incoterms 2010). Company is responsible for all delivery risks and costs, including freight costs, insurance coverage, and all import and export clearances and fees. For all imported Devices, Supplier will be the importer of record, and Company will advise Customer as to the harmonized system tariff classification of each Device, as well as the existence of any outstanding customs audits pertaining to such Devices; (y) For all imported Devices Company will ensure that all harmonized system tariff classification codes in the applicable customs documentation are at all times up to date; and (z) The minimum required interval between the date that Customer delivers a Service Order to Company and the delivery date for Devices referenced in such Service Order (the "Required Lead Time") will be set out in the Solution Details, and Company shall not bear responsibility for courier delays. Customer is responsible for the care and protection of any leased Devices, and is liable to Company for all loss or damage, other than ordinary wear and tear, to such leased Devices. Customer is responsible for the return of any leased Devices at the conclusion of term, and is liable to Company for any unreturned leased Devices.
2.7 End of Life and Continuing Availability of Services. Where Supplier determines to cease to make available all or any portion of an Application Service or other Service or Device that will result in a Material Reduction of the Application Service or Service or Device (“EOL”), Company shall comply with the following: (a) Company shall provide Customer with written notice upon Supplier providing Company notice that it is considering a proposed EOL, which notice shall include the identification of a replacement (if any) for the proposed EOL item that is reasonable taking into account price, form, functionality and performance (a “Replacement”). Prices for such Replacements will be mutually agreed between the Parties provided that such mutually agreed prices will not exceed the prices for any similar functionality and capacity in respect of the EOL item (or relevant portion of same); (b) Company shall promptly consult with Customer with respect to how to manage the proposed EOL so as to minimize the impact of same on Customer; (c) Company shall notify Customer in writing of Supplier’s intent to EOL all or any portion of an Application Service or other Service or Device at least twelve (12) months before the intended date where such EOL item (or portion thereof) shall no longer be available, which notice shall (i) contain Supplier’s written strategy for replacing the EOL item (or portion thereof) and (ii) include a suggested Replacement (the “EOL Notice”); (d) Company shall facilitate Customer, at its option placing its last order for the applicable EOL item at least three (3) months prior to the effective EOL date. For the purposes of this Section, “Material Reduction” means a material adverse change or reduction in the technical performance capabilities of an Application Service or Service (as described in the Documentation) that will have a material adverse impact on Customer's use of same.
3. CUSTOMER OBLIGATIONS.
3.1 Authorized End User Access to Services. Subject to the terms and conditions herein, Customer may permit any Authorized End User to access and use the features and functions of the Application Service. Customer will ensure that any such Authorized End User will be bound by a contractual, enforceable agreement, which agreement will provide substantially the same or greater protections for Company’s Confidential Information and Intellectual Property Rights as are provided herein.
3.2 Provision of Support to Authorized End Users. Company shall provide technical support in accordance with the Proof of Value Letter.
3.3 Assistance to Company. Customer will, at its own expense, provide assistance to Company, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Company to perform its obligations hereunder.
Certain Authorized End User Data may implicate or otherwise relate to a specific Authorized End User. Customer will: (i) make each such Authorized End User aware of how Customer will use the Application Services, and (ii) make sure that each such Authorized End User understands what Authorized End User Data is being collected and how that Authorized End User Data will be used or disclosed. Customer will obtain valid consent from each such Authorized End User prior to the use of the Application Services that implicate or otherwise related to such Authorized End User. Customer will ensure that this consent is sufficient for Company to create, access, collect, use, disclose, process, store and transmit Authorized End User Data as contemplated by this Agreement.
3.5 Customer Content. Customer is responsible for the supply, quality, condition, and content of all data and information entered into or collected by or stored in the Application Services by anyone using the Customer's credentials. Company acknowledges that Customer owns or otherwise has rights to all Customer Content that it provides or otherwise permits access to Company through the Application Service and Customer grants to Company a non-exclusive, sublicensable license during the Term of the Agreement to use such Customer Content for the sole and exclusive purpose of providing the Services and Devices, including a license to store, record, transmit, maintain, and display such data only to the extent necessary to provide the Services and Devices. Customer represents and warrants that it has sufficient rights to transmit or otherwise permit access to any such Customer Content to Company, including any data or information contained therein and that, to the extent Customer shares or otherwise permits Company or the Application Service to make use of any credentials to obtain such data or information, that such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party. Customer acknowledges that Company may, in its discretion, archive Customer Content that is one (1) or more years old such that this archived Customer Content is not readily accessible through the Application Service.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the rights granted to Customer and the performance of Company’s obligations under this Agreement, Customer shall pay to Company, without offset or deduction, the fees set out in a Solution Details and any Work Statement (the “Fees”). Unless otherwise provided in a Schedule, all such fees shall be due and payable within ten (10) calendar days after the applicable invoice is issued by Company. In respect of any Professional Services and to the extent requested by Customer, Company shall submit for approval by Customer a written travel & living expenses estimate for the Professional Services for each Work Statement. In respect of each Work Statement, Customer will reimburse Company for: (a) reasonable travel and living expenses incurred by Company’s employees and contractors for travel in connection with the performance of the Professional Services; (b) reasonable international telephone charges (if applicable); that are necessary to the performance of Professional Services under this Agreement; and (c) any other expenses for which reimbursement is contemplated in the applicable Work Statement. Unless otherwise contemplated in a particular Work Statement, Company will issue invoices to Customer for Professional Services on a monthly basis for amounts due under this Agreement.
4.2 Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Company’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Customer will make all required payments to Company in full without any set-off, counterclaim, deduction or withholding (including any deduction or withholding of taxes); provided, however, if Customer determines that tax deduction is required, Customer shall (a) withhold the appropriate amount from such payment, (b) pay such amount to the relevant authorities in accordance with applicable law, and (c) gross up the payment to Company so that the net payment, after such deduction or withholding, equals the amount that would have been paid under this Agreement as if no deduction or withholding was required. Customer shall provide Company within 30 calendar days of the tax payment or within such period required under applicable law with such evidence as may be required by the applicable taxing authorities to establish that such taxes have been paid.
4.3 Late Payments; Interest. The Customer shall pay a late payment charge of two percent (2.0%) per month (compounded to 26.82% per year), or the maximum rate permitted by applicable law, whichever is less, calculated from the billing date, on any amounts not received by Company by the due date shown on the invoice. Company may change the late payment charge at any time by giving at least 30 days’ advance notice to the Customer.
5. TREATMENT OF CONFIDENTIAL INFORMATION.
5.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
5.2 Mutual Confidentiality Obligations. The Receiving Party: (a) will not, directly or indirectly, deal with, use, exploit or disclose the Confidential Information of the Disclosing Party or any part thereof to any person or entity or for any purpose whatsoever (including in any manner that would benefit any competitor of the Disclosing Party) except as expressly permitted hereunder or unless and until expressly authorized in writing to do so by the Disclosing Party; (b) will use and reproduce the Confidential Information of the Disclosing Party only to the extent necessary to fulfill the Receiving Party's obligations under this Agreement, exercise its rights under this Agreement, or administer or manage this Agreement; (c) will disclose the Confidential Information of the Disclosing Party only to its representatives and professional advisors, and those of its Affiliates, who have a need to know such Confidential Information for the purposes of fulfilling the Receiving Party's obligations, exercising its rights under this Agreement, or administering or managing this Agreement, and who have assumed obligations of confidentiality equal to or greater than the obligations of the Receiving Party under this Section with respect to the Confidential Information; (d) will use reasonable efforts to treat, and to cause all its Representatives and those of its affiliates to treat, all Confidential Information of the Disclosing Party as strictly confidential, provided that in no event will such efforts be less than the degree of care that the Receiving Party exercises in protecting its own valuable confidential information; and (e) upon the request of the Disclosing Party, return and confirm in writing the return of all originals, copies and summaries of Confidential Information or, at the option of the Disclosing Party, destroy and confirm in writing the destruction of the Confidential Information. Without limiting anything in this Agreement, Upon request by Company, Customer will return and confirm in writing the return of all originals, copies and summaries of Company’s Confidential Information or, at the option of Company, destroy and confirm in writing the destruction of the Confidential Information.
5.3 Permitted Disclosure. The Receiving Party will be entitled to disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body, or otherwise, provided that the Receiving Party will: (i) give prompt written notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy; (ii) take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and (iii) in any event, make such disclosure only to the extent so required.
5.4 Aggregated Statistics. Notwithstanding anything else in this Agreement or otherwise, Company may monitor Customer’s use of the Application Service and use data and information related to such use, and Customer Content in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Application Service (“Aggregated Statistics”). As between Company and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges that Company will be compiling Aggregated Statistics based on Customer Content input into the Application Service and Customer agrees that Company may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
6. SERVICE LEVEL OBJECTIVES
6.1 Service Levels. As part of the Subscription Services, Company will provide the support services set out in the Proof of Value Letter and will meet or exceed any service levels described in the Proof of Value Letter or subsequent Solution Details. If Company does not meet any of the requisite service levels (if any), Company will: (a) reduce the applicable monthly invoice to Customer by the amount of the applicable service level credits (if any) as a credit against any amounts payable by Customer to Company or issue Customer a payment for the value of service level credits; and (b) use commercially reasonable efforts to ensure that any unmet service level (if any) is subsequently met. Notwithstanding the foregoing, Company will use commercially reasonable efforts to minimize the impact or duration of any outage, interruption, or degradation of Service. Failure to meet service level is not a breach of this Agreement. Service level credits are Customer’s sole and exclusive remedy, and Company’s sole and exclusive obligation, with respect to any failure to meet the service levels.
7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
7.1 Disclaimer. COMPANY DOES NOT GUARANTEE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE SERVICES, DELIVERABLES OR DEVICES. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DELIVERABLES, DEVICES AND SERVICES, INCLUDING THE APPLICATION SERVICE, THE DOCUMENTATION, AND ALL OTHER SERVICES ARE PROVIDED “AS IS,” AND COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.
7.2 Exclusions of Remedies; Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL COMPANY OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF COMPANY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO COMPANY BY CUSTOMER UNDER SECTION 4.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.3 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
8.1 Customer’s Indemnity Obligations. Customer agrees to indemnify and hold harmless Company and its suppliers (the “Company Indemnitees”) from any claim, as well as any charge, expense, damage, penalty and/or loss related to (a) the use of the Services made by or on behalf of Customer, its employees, its subcontractors or otherwise, (b) Customer Content, or Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement. Without limiting the generality of the foregoing, Customer shall indemnify and hold harmless the Company Indemnitees from any claim, damage or penalty arising from any bodily injury of a third party (including Customer’s employees and subcontractors) that has used, installed or uninstalled the Application Services contrary to the Documentation or other guidelines identified, from time to time, by the Company or contrary to the laws, regulations or norms applicable regarding workers safety or otherwise.
9. TERM AND TERMINATION.
9.1 Term. This Agreement is effective when the Solution Details in the Proof of Value Letter is signed by both the Customer and the Company, and continues until the date on which all Service Terms have expired or been terminated (the “Agreement Term”). The pilot term for each Service commences on the date that the Customer executes the applicable Solution Details in the Proof of Value Letter for such Service, and continues for the period set out in such Solution Details (the “Pilot Term”). The Pilot Term for a Service may be extended on written agreement by the parties. Prior to or following the expiry of any Pilot Term, the Customer may elect to continue to receive the applicable Services after the Pilot Term, for the period and on the terms set out in a new Solution Details to be agreed by the parties (each a “Renewal Service Term” and the Pilot Term, together with all Renewal Service Terms, collectively for a Service, a “Service Term”).
9.2 Termination for Breach. The Company may terminate this Agreement and/or any Service Term(s) by giving notice to Customer if (a) Customer is in material default of any provision of this Agreement and does not remedy that default within 30 days after receiving notice of the material default, or (b) has a receiver or trustee in bankruptcy appointed for it or is the subject of bankruptcy, insolvency, receivership, or liquidation proceedings that continue for 30 days, makes an assignment or takes other action for the benefit of its creditors, or is wound up or dissolved (any such event being a “Material Adverse Event”). Notwithstanding the foregoing, nothing in this Section 9.2 shall limit Company’s rights to suspend Customer’s access to the Application Service in accordance with Section 2.4 above.
9.3 Effect of Termination. Upon any termination or expiry of the Agreement Term or any Service Term, as applicable, Customer will (a) immediately discontinue all use of the applicable Application Service, the Documentation, and any Company Confidential Information and return all leased Devices (b) both Parties will delete any of the other Party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries; (c) return to the other Party or, at the other Party’s option, destroy, all copies of the Application Documentation and any Confidential Information then in the other Party’s possession; and (d) promptly pay to Company all amounts due and payable to the other Party hereunder. In addition to the foregoing, Customer shall pay to Company any termination charge set out in the Proof of Value Letter or any Work Statement and all fees and expenses incurred by the Company arising from the termination of the Agreement prior to the end of the applicable Service Term, including, without limitation, charges incurred for the refurbishment, storage, relocation, transport and recovery of any leased Devices. Customer shall have the right for up to sixty (60) days following the termination of the applicable Service Term to export Customer Content, only to the extent Customer is current on all payments owed to Company under this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof. Independent Contractors. In making and performing this Agreement, Customer and Company act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party. Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Customer, to the address set forth on the Cover Page, and if to Company, to TELUS Communications Inc.; 25 York Street Toronto, ON M5J 2V5 (Attn: Mike Dasilva), with a copy at the same address to Associate General Counsel, Legal Services, or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by email, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices shall be effective on the date indicated in such confirmation.
Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
Assignment; Delegation. Neither Party shall assign any of its rights under this Agreement without the express, prior written consent of the other Party. Notwithstanding the foregoing, Company may assign this Agreement, without consent, to an affiliate or otherwise in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets.
Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the reevant circumstances causing such failure or delay.
Reference. Company may issue a press release announcing Customer as a customer of the Application Service, subject to Customer’s written approval. Company may list Customer as such at its corporate Website at telus.com. Notwithstanding anything in this Agreement, Customer consents to the exchange of account and usage information with Fully Managed affiliates for the purpose of offering related products and services to the Customer.
Governing Law. If any provision of this Agreement is prohibited by or contravenes any CRTC order or decision, that provision applies only to the extent permitted by the order or decision. The Company may change any terms and conditions of this Agreement, by giving 30 days’ advance notice to the Customer, to comply with any CRTC order or decision or when otherwise required by law or by a court or other lawful authority. The Company and the Customer shall comply with all laws applicable to the exercise of their rights and performance of their obligations under this Agreement. This Agreement is subject to and is to be interpreted in accordance with the federal law of Canada and the laws of the province in the Customer’s billing address in the Cover Page without regard to that province’s choice of law rules. Venue and jurisdiction will be in that province.
Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Survival. The provisions of Sections 2.3, 3.5, 5, 7, 8, 9.3, 9.4 and 10 will survive the termination of this Agreement.