Terms of Use – Mely.ai Solutions Inc.

Master Service Agreement

This Software Services Agreement (the “Agreement”) shall come into force on the date when the Client completes payment of the initial fees as outlined in the Agreement (the “Effective Date”), between MELY.AI SOLUTIONS INC., located at 400 Montfort Local M-0220, Montréal, Québec, Canada, H3C 4J9 (the “Supplier”), and the Client, (the “Client” and collectively with the Supplier, the “Parties” and each, a “Party”).

WHEREAS the Supplier provides its clientele access to the Services; and

WHEREAS the Client wishes to access the Services, and the Supplier wishes to provide the Client with access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE in consideration of the mutual covenants, the terms and conditions set forth herein, and for all other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

DEFINITIONS

Affiliate
“Affiliate”means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means the ownership of 50% or more of the voting equity interests, or the power to otherwise direct the affairs of such Party;
Aggregate Statistics
"Aggregate Statistics" means data and information relating to Client's use of the Services that is used by the Supplier on an aggregated and anonymous basis, including, without limitation, to compile statistical and performance information relating to the provision and operation of the Services and to improve the Services;
Agreement
“Agreement” means this Software Services Agreement;
Applicable Law
“Applicable Law” means all applicable laws, including local, provincial, state, national and foreign laws, treaties and regulations as well as court or governmental agency orders;
Authorized User
"Authorized User" means any employee, consultant, contractor or agent of the Client (i) who is authorized by the Client to access and use the Services pursuant to the rights granted to the Client under this Agreement, and (ii) for whom access to and use of the Services has been validly acquired by this Agreement;
Client Content
“Client Content” means any Content created or acquired by the Client and then posted, uploaded, transmitted, added or otherwise made available by the Client using the Services;
Confidential Information
“Confidential Information” has the meaning ascribed to it in Section 9.1;
Content
“Content” means all content including but not limited to photos, videos, graphics, audio files, designs, illustrations, presentations, VR and AR files, 2D & 3D files, documents, files, data, templates, logos, marks, tags, descriptions, code, software, contact information, identifiers and other such information and materials;
Force Majeure Event
“Force Majeure Event” means any event beyond a Party’s control, including but not limited to, acts of God, acts of any civil or military authority, terrorism, war or other hostility, national emergencies, pandemics and epidemics, including the COVID-19 pandemic, civil disorder, fire, flood or other catastrophe, power failures, equipment failure, industrial or labor disputes, acts of third party providers, communication outages, Internet outages, cyber attacks or performance (or lack thereof) of third parties;
Payment Period
“Payment Period” means the period of time, as set out in the Statement of Work, that payment is due from the Client for its use of the Services during the same period of time;
Portal
“Portal” means the graphical user interface created by the Supplier to enable Users to access the Services;
Services
“Services” means the document extraction and shipment management platform provided as software as a service and its deliverables, if applicable
Statement of Work
“Statement of Work" means the Services described in Schedule "A" of this Agreement;
Supplier Content
“Supplier Content” means all Content made available by the Supplier or its licensors through the Services except for Client Content. For greater certainty, Supplier Content includes any Versions or Upgrades to the Services created, developed or acquired by the Supplier or its licensors;
Upgrade
“Upgrade” means any new feature, add-on, update of, or addition to, the Services where the Supplier generally charges a separate fee to its Clients, both new and existing, to obtain the Upgrade; and
Versions
“Versions” mean new releases of the Services that include fixes, patches, minor enhancements, developments, modifications, updates, additions and improvements made to the Services by the Supplier, and for greater certainty, Versions do not include Upgrades;.

SERVICES

Services
Services Subject to the Client's payment of all fees and compliance with all the terms and conditions of this Agreement, the Supplier grants the Client a limited, revocable, non-exclusive, non-sublicensable and non-transferable right to access and use the Services for the Client's business needs based on the number of Authorized Users identified in the Statement of Work for the duration indicated in the Statement of Work. The Client hereby agrees to allow only its Authorized Users to access the Services. For greater certainty, the Supplier will provide access to the Services to Authorized Users to facilitate the Client's activities, but in such case, the Client will be responsible for the obligations, actions and omissions of all Authorized Users as if such obligations, actions or omissions were those of the Client.
No Sale
No Sale All proprietary and intellectual property rights in the Services and the general analytics concerning use and performance of the Services are owned by the Supplier. Nothing in this Agreement should be construed to transfer proprietary and intellectual property rights in the Services to the Client.
Versions
Versions The Supplier may, from time to time, release new Versions of the Services without further payment by the Client.
Upgrades
Upgrades The Supplier may, from time to time, offer optional Upgrades to the Services that are not part of the currently-offered Version. Such Upgrades may be available to the Client, for an additional fee. Under no circumstances will the Client's choice not to purchase an Upgrade affect the Services to which the Client has subscribed nor affect the Supplier Content provided to the Client under this Agreement.
Usage Restrictions
Usage Restrictions The Client may not access the Services or the Supplier Content if the Client is a direct competitor of the Supplier, except with the Supplier’s prior written consent. The Client shall not (a) make the Services available to, or use the Services for the benefit of, any third party other than Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services or the Supplier Content, or include the Services or Supplier Content in a service bureau or outsourcing offering, (c) use the Services or Supplier Content to store or transmit infringing, libelous or otherwise unlawful or harmful material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services or the Supplier Content to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or the Supplier Content or interfere with third-party data or Content contained therein, (f) attempt to gain unauthorized access to the Services, to Supplier Content or to related systems or networks, (g) permit any third party to access the Services or Supplier Content except as permitted herein, (h) create derivative works based on the Services or Supplier Content, (i) copy the Services or the Supplier Content or any related part, feature, function or user interface thereof, (j) frame or mirror any part of the Services, other than copying or framing for the Client’s own internal business purposes, (k) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or access any software component of the Services, or (l) access the Services or Supplier Content in order to (i) build a competitor product or service, (ii) copy any features, functions or graphics of the Services or the Supplier Content or (iii) monitor availability, performance or functionality, or for any other benchmarking purposes.
Statement of work
Statement of workThe parties acknowledge and agree to execute the Statements of Work (“SOW’s”) as needed regarding the implementation and use of the Software. SOW will be the document which describes the scope and objectives, along with pricing and time required. One or more additional and/or amended SOWs may be incorporated into this Agreement by reference as agreed by the parties.

USE AND PROVISION OF THE SERVICES

Client Responsibilities
The Client shall use the Services in accordance with all Applicable Laws, in strict compliance with the terms of this Agreement, and in a manner which respects the privacy rights, proprietary rights, intellectual property rights and other rights of the Supplier and third parties. The Client shall maintain the integrity of the Services at all times by using security measures that conform to industry standards. The Client shall be responsible for the accuracy, quality, integrity and legality of the Client Content. Without limiting the generality of the foregoing, the Client shall be liable for all acts and omissions of Authorized Users, and any act or omission of an Authorized User that would constitute a breach of this Agreement shall be considered as an act or omission committed by the Client and shall be deemed a breach of this Agreement by the Client. The Client shall take all necessary steps to inform Authorized Users of the terms and conditions of this Agreement applicable to the use of the Services by Authorized Users and shall ensure that Authorized Users comply with such provisions.
Non-Compliance
If the Supplier is informed or has a reasonable basis to believe that the Client’s use of the Services does not comply with its obligations hereunder, then the Supplier may immediately suspend the Client or a specific Authorized User’s use of the Services, or remove any offending items of Client Content from the Services.
Users
The Client bears the responsibility for creating and managing Authorized User accounts for designated and named individuals only. The Client also bears the responsibility of assigning access and usage rights to Authorized Users and ensuring that Authorized User accounts are not shared or used by unauthorized individuals. The Client is responsible for all use of the Services by its Authorized Users.
Aggregate Statistics
Notwithstanding anything to the contrary in this Agreement, the Supplier may monitor the Client's use of the Services and Client Content and collect and compile Aggregate Statistics. All rights, titles and interests in the Aggregate Statistics by the Supplier, as well as all intellectual property rights therein, are owned and maintained solely by the Supplier. The Client acknowledges and agrees that the Supplier is authorized to compile Aggregate Statistics based on Client Content. The Client agrees that the Supplier may (i) make the Aggregate Statistics publicly available in accordance with Applicable Law, and (ii) use the Aggregate Statistics to the extent and in the manner permitted by Applicable Law, including, without limitation, for the Supplier's own benefit and the benefit of third parties, provided that such Aggregate Statistics do not reveal the Client’s identity nor the Client's Confidential Information. The Client may opt-out of the Aggregated Statistics by providing Supplier at least ninety (90) days prior written notice.
Suspension of Services
Notwithstanding anything to the contrary in this Agreement, the Supplier may temporarily suspend the Client’s and any Authorized User's access to some or all of the Services if : (i) the Supplier reasonably determines that (A) there is a threat or attack on the Services, the Supplier Content or the Client Content, (B) there is a Force Majeure Event, (C) the use of the Services by the Client or by an Authorized User disrupts or poses a security risk to the Services, Supplier Content or Client Content or to any other client or vendor of the Supplier, or (D) the Client or any Authorized User is using the Services for fraudulent or illegal activities; (ii) except for Fees (as defined below) that are disputed in good faith, the Client's account is in arrears for more than thirty (30) days and the Supplier has provided at least ten (10) days written notice of the account default; or (iii) any of the Supplier's vendors has suspended or terminated the Supplier's access to or use of any third party services or products necessary to enable the Client to access the Services (a "Suspension"). The Supplier shall use commercially reasonable efforts to inform the Client in writing of any Suspension of Services and to provide updates regarding resumption of access to the Services after any Suspension of Services. The Supplier shall use commercially reasonable efforts to restore access to the Services as soon as possible after the event causing the Suspension of Services has been corrected. The Supplier shall have no liability for any damage, liability, loss (including loss of data or profits), or any other consequence that the Client or any Authorized User may incur as a result of a Suspension of Services.
Feedback
If the Client or any of its employees, contractors and/or agents sends or transmits communications or materials to the Supplier by email, telephone or otherwise, suggesting or recommending changes to the Supplier's Services or Content, including, without limitation, new features or functionality related thereto, or any comments, questions or suggestions ("Suggestions"), the Supplier shall be free to use such Suggestions regardless of any other obligation or limitation between the Parties governing such Suggestions. The Client hereby assigns to the Supplier, on behalf of the Client and on behalf of its employees, contractors and/or agents, all rights, titles and interests in all ideas, know-how, concepts, techniques or other intellectual property rights contained in these Suggestions. The Supplier shall be free to use, without any award or compensation to any party, all ideas, know-how, concepts, techniques or other intellectual property rights contained in these Suggestions for any purpose whatsoever, although the Supplier shall not be obligated to use any of the Suggestions received.

TECHNICAL SUPPORT

FEES AND PAYMENT

Fees
The Client agrees to pay the fees as per the selected subscription plan. All fees are non-refundable (except as otherwise set forth in this Agreement) and are due and payable upon receipt of the invoice. Any overdue invoices will accrue late interest at the rate of 12% of the outstanding balance per month or at the highest allowable rate under Applicable Law. In the event of any dispute regarding an invoice, the disputing party must notify the other party in writing within five (5) business days from the date of the invoice. Both parties agree to use their best efforts to resolve the dispute within these five (5) business days. If the dispute is not resolved within this period, the invoice will be considered overdue, and the undisputed portion, if any, will be payable immediately.
Overage Fees
Transactional Fees are based on the monthly package of Services that the Client subscribed with a number of maximum transaction included per month. If any such maximums are exceeded during the applicable Term, the Supplier reserves the right to charge the Client, and the Client agrees to pay, additional fees based on the Overage Fee schedule set out in the applicable Schedule B. At any time, the Client may request an increase in the maximums upon which the Supplier will provide the Client with a quote for the additional Services.
Taxes
All fees are exclusive of applicable federal, provincial, state or local, value added, sales, use, excise and similar tax or duty (collectively, the “Applicable Taxes”). If the Supplier is required to pay or collect any Applicable Taxes on any fees charged under this Agreement, excluding taxes levied on the Supplier’s net income, then such Applicable Taxes shall be billed to and paid by the Client as set out herein and in the Statement of Work and the Client agrees to indemnify and hold the Supplier harmless from any liabilities arising from the Client’s failure to pay Applicable Taxes.

TERM AND TERMINATION

Term
The term of this Agreement begins on the Effective Date and shall remain in force for the term set out in the applicable Statement of Work. This Agreement will automatically renew for successive one (1) year terms unless either Party notifies the other in writing at least thirty (30) days prior to the expiration of the then-current term of its intention not to renew. Either Party may choose not to renew this Agreement without cause. In respect of any renewal term, the Fees shall be the same as that during the prior term unless the Supplier gives the Client written notice of a price increase at least sixty (60) days before the end of such term, in which case the price increase shall be effective upon renewal and thereafter. The Client shall have thirty (30) days to consider and agree to the price increase or notify the Supplier of its intention not to renew. The price increase shall come into force on the first day of the applicable renewal term.
Early Termination
This Agreement may be terminated before expiration as follows:
without cause, by either Party upon mutual written agreement;
by the Supplier before its expiration :
for convenience upon sixty (60) days notice;
if any of the events giving effect to a Suspension pursuant to Section 3.5 are not remedied or cannot reasonably be remedied within thirty (30) days of receipt of the notice of Suspension by the Client; or
if the Client has ceased operations, made an assignment for the benefit of its creditors or otherwise disposed of its assets, or has become subject to bankruptcy, reorganization, liquidation, dissolution or similar proceedings.
in such cases, termination of this Agreement shall take effect immediately upon written notice of termination by the Supplier to the Client. The Parties expressly waive the application of the provisions of Article 2125 of the Civil Code of Quebec.
Return of Client Content
If all Fees owed by the Client to the Supplier are paid, the Supplier will allow the Client to bulk-download any of the Client Content by file transfer protocol, in its native file formats, for a period of twenty (20) business days after the effective termination or expiration of this Agreement. After this period, the Supplier shall have no obligation to maintain or provide access to the Client Content and the Supplier may thereafter, unless prohibited by law, delete the Client Content in its possession.
Outstanding Obligations
If this Agreement is terminated for or expires for any reason:
If terminated in accordance with Section 6.2a) or 6.2b)i), the Supplier shall not issue any refunds for fees already paid. All unused credits will be cancelled upon termination.
the Client shall stop using the Services for any purpose;
each Party will return the other Party’s Confidential Information as required by Section 9 of this Agreement; and
all provisions of this Agreement that, by their nature, are intended to survive the purported or actual termination or expiry of this Agreement will so survive.

INTELLECTUAL PROPERTY RIGHTS

Intellectual property of the Supplier
The Client acknowledges that the Supplier retains exclusive ownership of all rights, titles and interests (including intellectual property rights) in and related to the Supplier's Services and Content, which it develops either in performing the Services or independently of this Agreement, and any derivative works, improvements or modifications to the foregoing. The Supplier shall be free to use for any purpose its general knowledge, skills and experience, as well as ideas, concepts, know-how, methodologies and techniques acquired or used in the provision of the Services.
Client Content
All rights, titles and interests (including intellectual property rights) in and to the Client Content shall at all times remain fully vested in the Client. The Client grants the Supplier all necessary rights and licenses required to use the Client Content in order to provide the Services. Without limiting the generality of the foregoing, the Client grants to the Supplier, and its Affiliates (i) a non-exclusive, royalty-free, worldwide license to host, copy, transmit and display Client Content as necessary for the Supplier to provide the Services in accordance with this Agreement; and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify and otherwise use and display any client data included in the Aggregated Statistics.
Supplier's Content
Subject to the terms of this Agreement, the Supplier grants the Client, during the term of the Agreement, a non-exclusive, non-transferable, non-sublicensable license to use, launch and display the Supplier's Content only in connection with the Services.

PROTECTION OF PRIVACY

Security Measures
The Supplier shall use reasonable administrative, organizational and technical privacy and data management measures to protect the integrity, security and safety of the Client Content appearing on the Services and the Supplier shall comply with all Applicable Laws regarding such Content.
Consent
The Client represents and warrants that it has obtained and will maintain all necessary consents and authorizations, and will provide all required notices, in accordance with applicable privacy and personal information protection laws with respect to the collection, use or disclosure of the Client's personal information by the Supplier in connection with the Services. The Client represents and warrants that it has, when obtaining any required consent from individuals : (i) adequately informed individuals of the purpose of the collection of personal information, the uses that will be made of the personal information and the circumstances under which the personal information may be disclosed; and (ii) informed individuals that the personal information may be transferred outside their country of residence, in which case it may be subject to the laws of those foreign jurisdictions and may be accessible to the courts and law enforcement authorities of those foreign jurisdictions.

CONFIDENTIALITY

Confidential Information
Notwithstanding any other provisions of this Agreement, neither Party shall, without the prior written consent of the other Party, disclose or use for any purpose other than the performance of each Party's obligations under this Agreement, any Confidential Information of the other Party. For the purposes of this Agreement, Confidential Information is defined as any documents, know-how, personal information, trade secrets, including the terms of this Agreement, and any other information that a reasonable person would consider to be Confidential Information based on the content or circumstances of its disclosure, of which the other Party may become aware or which it may possess as a result of the exchange of information under this Agreement (collectively, the "Confidential Information"). Neither Party makes any representation or warranty as to the accuracy of the Confidential Information, and such information is provided "as is".
Obligation to Protect
Each Party will protect the Confidential Information of the other Party using the same level of care that it would use to protect its own similar information, but in any event no less than a reasonable level of care. Each Party may use the Confidential Information of the other Party only to the extent necessary for the performance of its obligations under this Agreement or as authorized in writing by the disclosing Party..
Title
All rights, titles and interests (including all Intellectual Property Rights) in and to each Party’s Confidential Information will be and remain vested in such Party subject to the express licenses granted herein.
Permitted Disclosures
Neither Party shall disclose the Confidential Information of the other Party to any employee, agent, sub-contractor or other person except where such person is bound by a confidentiality agreement containing provisions at least as restrictive as those contained herein. Notwithstanding such disclosures, each Party will be fully responsible for any breaches of confidentiality caused by such persons as if such breach were committed by such Party. Either Party may disclose the terms of this Agreement to its Affiliates, solicitors, auditors, insurers or accountants as required.
Exceptions
Neither Party will have an obligation of confidentiality under this Section 9 where such Party can establish, through documentary evidence, that such information (a) was previously known to it free of any obligation to keep it confidential, (b) is or becomes publicly available other than by unauthorized disclosure, (c) is legally disclosed by third parties without restrictions of confidentiality, or (d) has been independently developed by it without reference to the other Party’s Confidential Information.
Return of Information
Except as set out in Section 6.3 (which fully governs the return of Client Content), upon termination of this Agreement or upon the written instruction of the Party owning Confidential Information, the other Party will return or destroy the requesting Party’s Confidential Information, provided that a Party will be deemed to have destroyed electronic Confidential Information when it executes an application (or operating system) level, commercially reasonable, delete function.

REPRESENTATIONS AND WARRANTIES

Limited Warranty
The Supplier warrants that the Services will conform in all material respects to the level of service defined in the Statement of Work when accessed and used in accordance with the relevant documentation. The Supplier makes no representations or warranties regarding the functionality or availability of the Services unless specifically stated in the Statement of Work. Any warranty provided shall be subject to the following exceptions, in addition to (and not in lieu of) any other exceptions set forth in the applicable Statement of Work : (i) scheduled downtime, for which the Supplier shall notify the Client (at least three (3) business days in advance) by email or via the Client Portal, and for which the Supplier shall schedule, to the extent practicable, during such periods of low usage as the Supplier reasonably determines from time to time (ii) unavailability caused by a Force Majeure Event; or (iii) unavailability caused by factors that are not reasonably within the Supplier's control and that do not constitute a Force Majeure Event (e.g., an attack on the service or interruptions of services of the Supplier's suppliers).
NO WARRANTIES; DISCLAIMERS
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SUPPLIER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION. WITH THE EXCEPTION OF THE WARRANTY SET FORTH IN SECTION 10.1, THE SUPPLIER EXPRESSLY DISCLAIMS ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR LEGAL, INCLUDING, BUT NOT LIMITED TO, IMPLIED CONDITIONS, WARRANTIES OR REPRESENTATIONS REGARDING QUALITY, CONDUCT, PERFORMANCE, RELIABILITY, AVAILABILITY, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY COURSE OF DEALING, USAGE OF TRADE, COURSE OF DEALING, PERFORMANCE, LAW, EQUITY, STATUTE OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT THE CLIENT CONTROLS THE ACCOUNTS OF AUTHORIZED USERS AND THE CLIENT CONTENT PLACED ON THE SERVICES AND AS SUCH, THE SUPPLIER HAS NO RESPONSIBILITY OR LIABILITY FOR THE ACCESS OR USE OF THE CLIENT CONTENT BY AUTHORIZED USERS.

LIABILITY AND INDEMNITIES

Indemnification by the Supplier
The Supplier will indemnify and hold harmless the Client, its Affiliates, and their respective officers, employees and agents (collectively, the “Client Indemnified Parties”), from and against any and all liabilities, actions, proceedings, claims, demands, losses, damages and costs, including reasonable legal costs and expenses (collectively, the “Claims”), brought or made against, or incurred by, Client Indemnified Parties, or any one of them, arising out of a claim by a third party that the Services or the Supplier Content infringes the Intellectual Property Rights of a third party. Notwithstanding the foregoing, the Supplier will not be required to defend or indemnify any of Client Indemnified Parties under this Section if, and to the extent that, the Claim was caused by (a) the Client Indemnified Parties’ combined use of the Services with any software, services or products not supplied by the Supplier, (b) any breach by the Client Indemnified Parties of any provision of this Agreement, (c) any failure by the Client Indemnified Parties to use a non-infringing version of the Service offered by the Supplier hereunder, or (d) the Client Indemnified Parties’ gross negligence or willful misconduct.
Indemnification by the Client
The Client shall indemnify and hold harmless the Supplier, its Affiliates, and their respective officers, employees and agents (collectively, the “Supplier Indemnified Parties”), from and against any and all Claims brought or made against, or incurred by, the Supplier Indemnified Parties, or any one of them, arising out of a Claim by a third party (including Authorized Users) that the Client Content infringes the Intellectual Property or Privacy Rights of a third party or otherwise breaches any Applicable Law. Notwithstanding the foregoing, the Client will not be required to defend or indemnify any Supplier Indemnified Parties under this Section if, and to the extent that, the Claim was caused by (a) any breach by the Supplier Indemnified Parties of any provisions of this Agreement, (b) any failure by the Supplier Indemnified Parties to use a non-infringing version of the Client Content offered by the Client hereunder; or (c) a Supplier Indemnified Parties’ gross negligence or willful misconduct.
Additional Infringement Obligations
If a Party who is providing an indemnity hereunder (an “Indemnifying Party”) has any knowledge of any Claim for which an indemnity is payable hereunder, or any circumstances in which a Claim in respect of such provision is threatened or reasonably anticipated, it will, as soon as reasonably practicable, (i) procure, at its expense, the right for the other Party whether such Party may be the Client Indemnified Parties or the Supplier Indemnified Parties (the “Indemnified Party”) to use the Services, Supplier Content or Client Content, as the case may be, or such infringing part thereof, (ii) replace, at its expense, the Services, Supplier Content or Client Content, as the case may be, or such infringing part thereof, with material of at least comparable functionality that does not breach this Agreement, (ii) if the removal of such infringing part of the Services, Supplier Content or Client Content, as the case may be, would not be a breach of this Agreement, remove such infringing part of the Services, Supplier Content or Client Content, as the case may be, or (iv) if the Claim is indemnifiable by the Supplier under this Section and after diligent, good faith and commercially reasonable efforts, the Supplier has not been able to perform any of the above, terminate this Agreement and refund to the Client a pro rata portion of the fees paid by the Client for any outstanding portion of the term.
Indemnities
Each Party acknowledges that the Indemnifying Party will be given complete authority for the defense or settlement of Claims indemnified hereunder, on the understanding that, in any event, the Indemnified Party will have the right (at its own expense) to participate in such defense or compromise through counsel of its choosing.
Conditions of Indemnification
An Indemnifying Party’s obligations to provide an indemnity hereunder will be conditional upon (a) the Indemnified Party notifying the Indemnifying Party as soon as reasonably practicable after receiving notice of a Claim, (b) the Indemnified Party providing such information and assistance as reasonably requested by the Indemnifying Party, and (c) the Indemnified Party not compromising or settling the Claim without the Indemnifying Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
EXCLUSION AND LIMIT OF LIABILITY
Other than for indemnification obligations or for breach of confidentiality obligations; THE SUPPLIER WILL NOT BE LIABLE TOWARDS THE CLIENT FOR ANY INDIRECT OR INCIDENTAL OR PUNITIVE CLAIMS OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, REPUTATION, DATA, STOCK VALUE, BUSINESS OR USE), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR COULD HAVE FORESEEN THEM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE SUPPLIER'S LIABILITY, INCLUDING ITS OBLIGATION TO INDEMNIFY UNDER THIS ARTICLE 11, FOR DIRECT DAMAGES IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE CHARGES PAID OR PAYABLE BY THE CLIENT TO THE SUPPLIER DURING THE SIX-MONTH PERIOD PRECEDING THE CIRCUMSTANCES IN WHICH SUCH LIABILITY IS INCURRED.

GENERAL

Notice
Notices, claims, demands or other communications under this Agreement shall be in writing and addressed to the Parties at the addresses and contacts specified below. A notice shall be deemed to be duly given and received : (a) on the first business day following the date of dispatch if sent by courier, mail or recognized express delivery service; or (b) five (5) business days after it is sent by registered or certified mail, postage prepaid, with return receipt requested. A Party may change its address or other notice information by notice to the other Party.
No Affiliation
The Parties acknowledge and agree that each Party is independent and not a partner or agent of the other Party and neither Party shall enter into any agreement, contract or commitment, or incur any obligation or liability in the name of the other Party or otherwise on behalf of the other Party. Neither this Agreement nor the performance of the Services creates or is deemed to create a partnership, joint venture, agency, fiduciary, employment or other legal relationship between the Parties. Each Party's obligations to the other Party hereunder are exclusively contractual in nature. Neither Party shall be liable for the acts or omissions of the other Party or any of its employees or agents.
Force Majeure
Neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a Force Majeure Event, provided that the affected Party will notify the other Party as soon as practicable in the circumstances and resumes performance of its obligations upon the abatement or ceasing of the Force Majeure Event. Without limiting the generality of the foregoing, the Supplier will utilize industry-standard technologies and practices to promote and enhance the availability of the Services during Force Majeure Events.
Use of Name
Neither Party nor its Affiliates shall have permission to use the other Party’s or its Affiliate’s names and/or logos without prior written consent from the other Party.
Applicable Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein, without reference to conflict of laws principles. Each party hereby irrevocably attorns to the exclusive jurisdiction of the courts in the City of Montreal, Quebec with respect to the resolution of any disputes hereunder.
Respect of Applicable Laws
Each Party undertakes to perform its obligations hereunder and otherwise transact with the other Party in accordance with all Applicable Laws, rules and regulations of all governmental authorities.
Waivers
No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party, which waiver will not affect such Party’s rights in respect of any subsequent breach of this Agreement by the other Party. Any failure by a Party to enforce any clause of this Agreement or right contained herein, or any forbearance, delay or indulgence granted by a Party to the other Party, will not be construed as a waiver of the first-mentioned Party’s rights under this Agreement.
Assignment
This Agreement may not be assigned by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, this Agreement may be assigned by a Party without the other Party’s consent to (i) an Affiliate of such Party, (ii) an acquirer of all or substantially all of such Party’s assets, or (iii) such Party’s successor by merger, amalgamation, wind-up or other similar corporate reorganization, in each case of (i), (ii) or (iii) that does not result in a direct competitor of the other Party’s business being the proposed assignee, transfer or recipient of this Agreement. Any purported assignment in violation of this provision will be void.
Injunctive Relief
Each Party acknowledges and agrees that a breach by it of the provisions of this Agreement relating to Intellectual Property Rights or Confidential Information may result in immediate and irreparable harm to the other Party for which compensation would be an inadequate remedy. Accordingly, each Party acknowledges and agrees that the other Party may seek, as a matter of right and without the necessity of establishing the inadequacy of monetary damages, injunctive or other equitable relief to prevent or remedy such conduct from any court of appropriate jurisdiction.
Entire Agreement
This Agreement, including its related Schedules, constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether oral or written. In this regard, (a) neither Party has relied on any representations or warranties not made in this Agreement, and (b) to the extent that there is any conflict or inconsistency between the provisions contained in this Agreement and the Statement of Work, the terms of the Statement of Work shall prevail. This Agreement may only be amended by a written instrument signed by both Parties.