Terms and conditions

General terms and conditions

1. Definitions

Capitalized terms that are not defined in these general terms and conditions have the meaning given to them in the applicable SOW. In the event of any inconsistency between these general terms and conditions and any particular SOW, the provisions of these general terms and conditions prevail, unless otherwise specified in a particular SOW.

a) “Developments” means any intellectual property made, published, designed, implemented or created by the Service Provider (or its personnel) after the Effective Date, whether independently or pursuant to an SOW under this Agreement.

b) “Documents” means any physical or tangible product prepared expressly for the Client, at its request, regardless of the form or medium used to store or express it, whether in paper or electronic format, or in any other format.

c) “Client Data” means the data submitted to the Service Provider by or on behalf of the Client, including information that reflects the use of the Deliverables by the Client’s end users.

d) “Agreement” means, collectively, these general terms and conditions and any SOW governed by these general terms and conditions.

e) “Deliverables” means the Documents produced, made, written, designed, created or otherwise prepared and delivered to the Client pursuant to an SOW under this Agreement, on the following conditions: i) such Documents are produced expressly for the Client, and ii) such Documents use or are based on information or data specific to the Client’s business. “Deliverables” do not include the Pre-existing Intellectual Property of the Service Provider or the Service Provider’s Developments.

f) “Pre-existing Intellectual Property of the Service Provider” means all technical Developments, ideas, discoveries, original works, formulas, know-how, processes, designs, computer programs, written documentation, drawings, documents, materials, inventions and other intellectual property, whether or not patentable or protectable as trade secrets or by trademarks, that belonged to the Service Provider and existed before the Effective Date of this Agreement.

2. Payment and warranties

a) Price. The applicable fee rates are set out in the applicable SOW. Any change in rates resulting from changes in the scope of work must be mutually agreed upon on a case-by-case basis.

b) Invoices. The Service Provider will use commercially reasonable efforts to send invoices within 5 days after the end of the month in which the services were performed, unless otherwise specified in the SOW. The Client will pay invoices in accordance with the terms set out in the applicable SOW.

c) Warranties. The Service Provider represents, warrants and covenants, for a period of 6 months following delivery of the Deliverables, as follows: a) the services and the Deliverables will comply with applicable laws; b) the services will be performed in accordance with generally applicable industry standards of conduct, diligence and care; c) unless otherwise specified in an SOW, the Deliverables are original works of the Service Provider (and its personnel) or corporate works owned or controlled by the Service Provider; and d) the Service Provider has the right to grant the licences and make the assignments granted herein.

d) Limitations. The warranties set out in this paragraph 2(c) are in lieu of all other warranties, and the service provider expressly disclaims all other representations, warranties or conditions, whether express or implied, written or oral, statutory or arising by operation of law, or arising from a course of dealing, usage or trade practice, including the implied warranties of merchantability, fitness for a particular purpose or non-infringement.

The Client understands that the use of the Deliverables necessarily involves the transmission of Client Data over networks that are not owned, operated or controlled by the Service Provider or its subcontractors, and that the Service Provider is not responsible for the loss, alteration, interception or storage of Client Data over networks that are not owned, operated or controlled by the Service Provider or its subcontractors. The Service Provider will not be responsible for any problem inherent in the use of the Internet or in the use or configuration of other systems outside the Service Provider’s control, including, without limitation, the configuration of the Client’s networks, servers, infrastructure, firewalls and applications, or for any problem related to the use or configuration of the Deliverables by the Client other than in accordance with the Service Provider’s instructions. The Service Provider and its suppliers do not warrant that (a) the use of any Deliverable will be secure, timely, uninterrupted or error-free, (b) the Deliverables will be interoperable with any other system or data, (c) the Deliverables will meet the Client’s requirements; (d) any stored data will be accurate, reliable or safe from any loss or corruption, (e) any error or defect will be corrected; or (f) the Deliverables are free of viruses or other harmful components.

e) Client Data. The Client hereby grants the Service Provider a non-exclusive, non-sublicensable and non-transferable (except as authorized under this Agreement), worldwide, royalty-free licence to use, copy, store, transmit, distribute, display, modify and create derivative works of the Client Data during the Term, to the extent necessary to provide the Deliverables and ensure their proper operation in accordance with this Agreement and the Documents.

3. Term and termination

a) Term. This Agreement will automatically renew for an equivalent term upon expiry of the Initial Term (or of any Renewal Period), unless a party notifies the other party in writing, no later than 30 days before the end of the Term, of its intention not to renew this Agreement (the “Renewal Period” and, collectively with the initial period, the “Term”).

b) Termination without cause. Either party may terminate the applicable SOW at any time without cause on 90 days’ written notice. In the event an SOW is terminated without cause, the Client must pay the Service Provider the following: i) all work in progress and services performed up to the date of termination.

c) Termination for breach. If a party materially fails to perform its obligations under this Agreement and/or the applicable SOW, and does not remedy such failure within 10 days after receiving notice to that effect from the other party, the non-defaulting party has the right to terminate the applicable SOW. If this Agreement is terminated due to an unremedied material breach, the Service Provider is entitled, in all circumstances, to the payment set out in subparagraph i) of paragraph 3(b) above.

4. Confidentiality

a) Duty to protect. The Service Provider and the Client agree and acknowledge that they exchange information of a confidential or proprietary nature (the “Confidential Information”). Both parties acknowledge that all non-public information of the other party is confidential and of great value, including any information concerning the other party that is not yet lawfully available to the public. Accordingly, both parties hereby agree not to disclose to anyone, at any time, the Confidential Information obtained from the other party, and to take reasonable measures to preserve its confidentiality during the Term of this Agreement and after its expiry. The party receiving the Confidential Information may disclose it only to its employees or representatives who need it to perform their duties hereunder and any duties set out in a particular SOW, provided that such employees or representatives are bound by confidentiality obligations at least as restrictive as those contained herein, it being further agreed that the party receiving the documents will be responsible for any breach by its employees or representatives. “Confidential Information” does not include information or documents that: i) are public or become generally available to the public other than as a result of an act or omission of the receiving party; or ii) are lawfully received from a third party that is not bound by a confidentiality undertaking toward the party that disclosed such Confidential Information; or iii) are independently created by the receiving party without use of the Confidential Information and in accordance with this Agreement. The provisions of this paragraph 4(a) survive the expiry or termination of this Agreement for any reason whatsoever. Upon expiry or termination of this Agreement, the receiving party undertakes not to keep any copy, photocopy, draft or other form of reproduction of the Confidential Information of the party that disclosed the Confidential Information, except with that party’s written permission; and to return all of the Confidential Information (or destroy such Confidential Information stored electronically) to the party that disclosed the Confidential Information in question upon receipt of a written request to that effect, providing written confirmation thereof.

b) Publicity. Subject to the Client’s prior approval, the Service Provider has the right to announce that the Client is a Client of the Service Provider and to publish a short description of the services provided by the Service Provider to the Client.

5. Proprietary rights

a) Pre-existing Intellectual Property and Developments of the Service Provider. Notwithstanding any provision to the contrary in this Agreement, the Client agrees and acknowledges that all Pre-existing Intellectual Property of the Service Provider and all of the Service Provider’s Developments are and will remain the exclusive property of the Service Provider, and the Client agrees and acknowledges that it will not acquire any right, title or interest in the Pre-existing Intellectual Property of the Service Provider or in the Service Provider’s Developments under this Agreement. To the extent that the Pre-existing Intellectual Property of the Service Provider or the Service Provider’s Developments form part of any deliverable, the Service Provider hereby grants the Client, subject to the confidentiality obligations herein, a personal, non-exclusive and irrevocable licence to use such Pre-existing Intellectual Property of the Service Provider or such Developments of the Service Provider, as incorporated into the Deliverables, for internal use in connection with the Client’s business and not for resale. The Client has no right to grant licences or sublicences to third parties without having obtained the Service Provider’s prior written authorization.

b) Deliverables. The Service Provider hereby agrees that, to the extent permitted by applicable law and unless otherwise provided in an SOW, all Deliverables are deemed “works made for hire” (for the purposes of U.S. copyright law) or “works made in the course of employment” (for the purposes of Canadian copyright law); by operation of such laws, the Service Provider hereby assigns, transfers and conveys to the Client, without further consideration, all right, title and interest in or relating to such Deliverables, in perpetuity. Subject to the confidentiality obligations under this Agreement, the Client hereby grants the Service Provider a non-exclusive, royalty-free, fully paid-up, transferable and irrevocable right and licence to use any Deliverable in the course of its business, including for other projects and other clients, with the right for the Service Provider to grant licences and sublicences to third parties without obtaining the Client’s prior written authorization. The Client agrees to use the Deliverables only in the course of its business and not to resell them, and agrees that it has no right to grant licences or sublicences to third parties without obtaining the Service Provider’s prior authorization.

6. Indemnification; limitation of liability

a) Indemnification. Each party must, at its own expense, defend and indemnify the other party, its subsidiaries, parent companies, affiliates, employees, officers, directors, shareholders and agents against all lawsuits, claims and resulting obligations, and the associated losses, costs, damages and expenses, including reasonable legal fees, court costs and expert fees, arising from or relating to: i) any of its acts or omissions, or those of its employees, personnel or agents; or ii) its failure to perform any of its obligations set out in this Agreement.

b) Intellectual property indemnification. The Service Provider’s obligations to indemnify the Client under paragraph 6(a) above will not apply to the extent that any claim or final adverse judgment is based on or results from: i) the Documents or other forms of intellectual property provided by the Client; ii) the combination of any intellectual property of the Service Provider with any other document not provided by the Service Provider; iv) modifications to any intellectual property of the Service Provider; v) the Client’s use of any intellectual property of the Service Provider in a manner not in accordance with this Agreement; or vi) a breach of this Agreement or any unlawful act or omission on the part of the Client. The Client will indemnify the Service Provider and reimburse it for all costs or damages arising from any of the actions listed in the preceding sentence. If the Service Provider receives information concerning an infringement of intellectual property rights or an allegation of misappropriation relating to any element of its intellectual property, it may, at its own expense, but without any obligation on its part and under the terms of this paragraph, take the following measures: i) obtain the right for the Client to continue using the allegedly infringing element as permitted by this Agreement; or ii) modify the element so that it no longer infringes intellectual property rights; or iii) replace the element with a functional equivalent that does not infringe intellectual property rights; in which case the Client will immediately stop using the allegedly infringing element.

c) Limitation of the Service Provider’s liability. The Service Provider’s entire and aggregate liability under or in connection with this Agreement, for all claims, losses and obligations, and for all damages, may not exceed the total amount of fees paid by the Client hereunder during the 12 months preceding the claim.

7. Non-solicitation

a) The Client undertakes not to, during the Term and for a period of one year from the end or termination of this Agreement or of any SOW under this Agreement, directly or indirectly recruit or employ, or otherwise attempt to recruit or employ in any manner whatsoever, including but not limited to on a service or consulting contract basis, the members of the Service Provider’s personnel, including employees and subcontractors, or attempt to recruit or employ them, or try to induce them to leave their employment with the other party without having first obtained the latter’s written authorization. The Client agrees that if it breaches this undertaking and does not remedy such default within 5 days of receiving written notice of the default from the Service Provider, it must pay the Service Provider, upon request, an amount equal to five times (5X) the annual compensation of the solicited person, as liquidated damages, without prejudice to any other remedy of the Service Provider, including injunctive relief.

8. General provisions

a) Assignment. Neither party may assign this Agreement to a separate legal entity without the written consent of the other party (which may not be withheld without valid reason), except in the context of a restructuring or sale of the business (including the sale of all or substantially all of the business’s assets) or any other type of corporate reorganization.

b) Governing law and jurisdiction. This Agreement (and any SOW entered into hereunder) will be governed by and interpreted in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein. The parties hereto irrevocably submit to the exclusive jurisdiction of the courts located in the District of Montréal, Province of Quebec.

c) Independent contractors. The parties act as independent contractors in all respects under this Agreement, and the Service Provider retains supervisory authority over its employees. Notwithstanding any other provision to the contrary in this Agreement, neither party is an agent or representative of the other party, nor are the parties joint venturers or partners, for any purpose whatsoever.

d) No amendment. This Agreement constitutes the entire agreement of the parties with respect to its subject matter, and nothing herein may be changed or modified.