Terms of Service
Last Update: March 03, 2022
These terms and conditions of service (the “Terms of Service”) govern the supply of services (the “Services”) by ScalePoynt Solutions Inc. (“Supplier”, “us”, “we”, “ours” and words of like import) to our clients (in these Terms of Service “Client”, “you” and “yours” and words of like import mean the person to which we are providing Services under these Terms of Service) under order forms (each, an “Order Form”) and Service delivery terms (each, “Service Delivery Terms”) that you and we may agree to from time to time. An Order Form and Service Delivery Terms may also reference one or more appendices (each, a “Work Appendix”) setting out additional details of the Services to which it relates. Supplier and Client are referred to together in these Terms of Service as the “Parties”.
These Terms of Service, together with the applicable Order Form and one or more applicable Service Delivery Terms and Work Appendices, constitute a legally binding agreement (when used in reference to a particular Order Form and Service Delivery Terms or particular Services, the agreement resulting from these Terms of Service and the Order Form, Service Delivery Terms and Work Appendices is referred to as the “Agreement”) between the Parties, and govern our delivery and your receipt and use of the Services described in the Agreement.
An Agreement is effective from and after the effective date stated in the applicable Order Form or Service Delivery Terms, or if no effective date is stated in that Order Form or Service Delivery Terms, from and after the date on which the last of the Parties executes that Order Form, or if both do not execute an Order Form, from and after the date we commence performing the applicable Services at your request (the “Effective Date”).
These Terms of Service apply notwithstanding the terms of any purchase order or RFP or other terms of yours of any kind, unless we have expressly agreed otherwise in the applicable Order Form or Service Delivery Terms.
If we perform Services for you before we enter into an Agreement with you for those Services, these Terms of Service shall apply to those Services for such period, and continue to apply to those Services even if we do not enter into any Order Form or Service Delivery Terms or any other written agreement with you concerning those Services.
We will provide the Services agreed to from time to time by the Parties. Unless an Order Form or Service Delivery Terms provide for particular dates, all deadlines and date milestones in the Order Form and Service Delivery Terms are approximate. You acknowledge that if there are delays in Services due to you, any deadline or date milestone that applies to us and is affected by such delays shall be extended on a day-for-day basis by the amount of the delay. Such delays may also result in additional costs, to be discussed and agreed by the Parties at the applicable time. We shall use reasonable efforts to give you reasonable notice of any such delays that you cause
The Services will be performed by the project team set out in the applicable Service Delivery Terms (each, a “Project Team”). We will provide Project Team resources via employees and subcontractors as deemed appropriate by us. Where Project Team resources are identified as “Key Personnel” in an Order Form or Service Delivery Terms, we will make reasonable efforts to give notice to you of changes in those personnel (such as for reasons of illness, resignation, termination of employment, or other causes) and to replace them with personnel of comparable seniority.
- Each party will follow the procedure set out in this Section 3 for any change, addition, reduction, deletion, modification, relocation, improvement, amendment, delay, rescheduling or adjustment (a “Change”) to the Services, excluding any day-to-day service requests within the scope of the Services.
- Either Party may send a notice to the other party requesting a Change (each, a “Change Request”), which notice will specify the Change in reasonable detail to enable the other Party to evaluate it. The other Party shall timely consider and respond to any Change Request. If you make a Change Request, we will timely provide you with a proposal (“Change Order Proposal”) describing the costs, schedule impact and other relevant details of the Change Request.
- No Change Request will be binding upon the Parties unless accepted in writing.
Fees and Expenses; Billing; Taxes.
- In consideration for providing the Services, you will pay us the applicable fees set out in the Agreement (the “Fees”).
- You will also pay us any travel or related expenses that we incur in performing the Services and (i) that are expressly set out in the Agreement; or (ii) that you approve in writing.
- We will invoice you in advance and on a monthly basis. You will pay all amounts invoiced in accordance with this Section within five (5) days of receipt of the invoice, unless otherwise specified in the Agreement.
- You shall pay all sales and excise taxes, including HST, on amounts due under an Agreement.
- You shall pay all sales and excise taxes, including HST, on amounts due under an Agreement.
- If you in good faith dispute any amounts invoiced, the Parties will promptly address and escalate the dispute with a view to resolving the dispute as quickly as commercially reasonable.
- We shall prorate any partial periods based on the number of weekdays engaged in that period out of the total number of weekdays in that period. For clarity, if an engagement starts 5 weekdays into a 23 weekday month, the month shall be prorated at 18/23 days = 78% of Fees for that period.
- We may include the Fees due for the next period if a billing period is shorter than fifteen (15) days.
The Parties may have meetings or telephone conferences, from time to time as may be appropriate, for tracing and discussing the progress of, and exchanging information relating to providing, the Services.
The non-disclosure agreement entered into by the Parties shall continue, and shall apply to information that they provide to each under an Agreement. All such confidential information is referred to as “Confidential Information” in the Agreement.
This Section 6 shall not be construed to limit our right to independently develop or acquire products, provided it is done without use of your Confidential Information. Further, we shall be free to use for any purpose the residuals resulting from access to or work with your Confidential Information, provided that we shall not disclose your Confidential Information except as expressly permitted pursuant to the terms of the Agreement. The term “residuals” means information in intangible form, which is retained in unaided memory by persons who have had access to your Confidential Information, including ideas, concepts, know-how or techniques contained therein. We shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. For clarity, no right is granted under this Section to us to use your Intellectual Property Rights.
- We shall continuously maintain, follow, enforce, review and update our security and backup procedures, which at a minimum shall at all times be compliant with applicable laws, consistent with recognized industry-accepted best practices in North America to prevent the accidental, unauthorized, or unlawful access, disclosure, destruction, or alteration of your Confidential Information or other assets in our possession or under our management.
- We will implement, and will ensure that our Project Team who have access to your Confidential Information will maintain and follow, reasonable and appropriate technical and organizational safeguards, internal controls, and information security routines against, among other things, the accidental, unauthorized or unlawful access, disclosure, destruction, loss or alteration of any of your Confidential Information in our or our Project Team’s possession or control or that we or they process, and to protect the confidentiality, integrity and availability of our software, equipment and systems and your Confidential Information . Such data safeguards will be at least as good as the practices we use for our own Confidential Information.
Intellectual Property Rights.
- Definition. As used in an Agreement, “Intellectual Property Rights” means: (i) any and all proprietary rights anywhere in the world provided under: (A) patent law; (B) copyright law (including moral rights); (C) trade-mark law; (D) design patent or industrial design law; or (E) any other statutory provision or common law principle applicable to the Agreement, including trade secret law; (ii) any and all applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing; and (iii) any and all licences and waivers and benefits of waivers of the intellectual property rights set out in clauses (i) and (ii) above, all future income and proceeds from the intellectual property rights set out in clauses (i) and (ii) above, and all rights to damages and profits by reason of the infringement or violation of any of the intellectual property rights set out in clauses (i) and (ii) above.
- Work Product. You own and will own all right, title and interest, including all Intellectual Property Rights, in and to all deliverables, source code, documentation, content, technology, materials and other work products developed, produced or provided by us to you in the performance of the Services for you (the “Work Product”), and we hereby do transfer and assign, and agree to transfer and assign to you, in each case effective upon and subject to Client’s payment of the applicable Fees, the Work Product and all of our Intellectual Property Rights therein, and waive all other rights therein. Work Product does not include any Supplier IP.
- Client IP. In order to facilitate our performance of the Services, you may provide to us certain of its or its licensors’ software, content, materials, technology, software programs, application programming interfaces, business rules, business processes, models, tools, customer information, and proprietary materials of yours that are or have been procured, created or developed by or for or licensed to you (collectively, the “Client IP”). As between the Parties, Client IP is your property. You hereby grant to us during the Term a non-exclusive and revocable license to use the Client IP solely to the extent required in order to perform the Services, and you reserve all other rights thereto.
- In providing the Services, we may use, modify, enhance and develop its own software and other intellectual property, including but not limited to operating playbooks and processes, reference architecture designs, contracts and agreements, automation scripts, sales material, onboarding and rollout procedures and materials, and source code, as well as documentation related to any of the foregoing (collectively, the “Supplier IP”). For clarity, Supplier IP does not include any of your Confidential Information. For additional specificity, the applicable Order Forms and/or Service Delivery Terms may describe and scope specific Supplier IP to be used in the Services. As between the Parties, Supplier IP is our property.
- To the extent that in providing the Services we provide or deliver to you any Supplier IP (“Approved Supplier IP”), we hereby grant to you a non-exclusive perpetual (subject to any termination of the Agreement by us for non-payment by you), transferable, sublicensable license to use the Approved Supplier IP for your own internal use in connection with such Service. You may use, modify, enhance, adapt, and create derivative works from Approved Supplier IP exclusively for your own internal use only.
Representations and Warranties; Remedy; Certain Disclaimers.
- Each Party represents and warrants to the other Party that it has the right and authority to enter into an Agreement and to grant all rights granted by such Party in the Agreement.
- We represent and warrant to you that we will perform or cause to be performed (including through appropriate supervision and inspection) the Services and otherwise fulfill its obligations hereunder honestly and in good faith, exercising skill, care and diligence in accordance with recognized professional and industry standards among consultants, and in a timely manner and in accordance with the terms and conditions of the Agreement and all applicable laws.
- We shall not have any responsibility for the accuracy, quality, integrity, legality, non-infringement, reliability, or suitability of any Client IP or third party materials, or for obtaining rights to use or title to any Client IP, or for any losses, costs, damages, expenses or liabilities that Client IP or third party materials or their use may cause
- EXCEPT AS SPECIFICALLY SET FORTH OR REFERENCED IN AN AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF EITHER PARTY, EXPRESS, IMPLIED, STATUTORY, COLLATERAL, OR OTHERWISE, REGARDING ANY MATTER, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
We shall defend, indemnify and hold you harmless from and against all losses, costs, damages, expenses and liabilities (including reasonable legal fees and court costs) which may be suffered or incurred by you resulting from any claim by any third party arising out of:
- any damage, loss or destruction of any of your tangible real or personal property: (I) while in our possession or control or of any person for whom we are responsible hereunder; or (II) otherwise to the extent caused by any of our acts or omissions or of any person for whom we are responsible hereunder;
- any gross negligence or criminal, fraudulent or other wilful misconduct on our part or of any person for whom we are responsible hereunder; or
- the infringement, violation or misappropriation of any third party copyright or trade secret by the provision, receipt or use of the Work Product, Supplier IP or the Services by you in accordance with the Agreement.
- Notwithstanding Section 10(a)(i)(C), we shall have no obligation to indemnify you for any claim arising from (i) improvements or modifications made to any Work Product, Supplier IP or deliverable by any Person other than us or any person for whom we are responsible hereunder, (ii) use of any Intellectual Property Rights not supplied by us, including any Client IP or third party materials, (iii) claims arising from the use of Work Product, Supplier IP or a deliverable in combination with any Intellectual Property Rights not supplied by us if the claim would not have arisen but for such combination, (iv) unauthorized use of any Work Product, Supplier IP or deliverable or use not in accordance with documentation provided by us to you describing the intended use thereof, or (v) your continued use of Work Product, Supplier IP or deliverables after we have provided a non-infringing version of same that otherwise complies with the requirements of the Agreement.
- If any part of Work Product, Supplier IP, a deliverable or the Services becomes, or in our opinion is likely to become, the subject of an infringement claim, we will, at our option: (A) at our expense obtain for you the right to continue to use the applicable Work Product, Supplier IP, deliverable or Services as provided in the Agreement; or (B) at our expense replace the applicable Work Product, Supplier IP, deliverable or Services with another product or service that provides similar functionality and otherwise complies with the requirements of the Agreement.
- Client Indemnity. You shall defend, indemnify and hold us harmless from and against all losses, costs, damages, expenses and liabilities (including reasonable legal fees and court costs) which may be suffered or incurred by us resulting from any claim by any third party in respect of, arising out of or as a result of the infringement, violation or misappropriation of the Intellectual Property Rights of any person by the Client IP.
- Indemnification Process. The party seeking indemnification of a claim as provided for in an Agreement shall give the indemnifying party: (a) prompt written notice of such claim; (b) authority to control and direct the defence or settlement of such claim; and (c) such information and assistance as the indemnifying party may reasonably request, at indemnifying party’s expense, in connection with such defence or settlement. Notwithstanding the foregoing, the indemnifying party will not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto or unless the indemnified party provides its prior written consent to such settlement. In any action that the indemnifying party provides defence on behalf of the indemnified party, the indemnified party may participate in such defence at its own expense by counsel of its choice.
- Supplier Indemnities.
Limitation of Liability; Insurance.
- Maximum Aggregate Liability. Subject to Section 11(c), each Party’s liability, if any, to the other Party arising out of or in any way related to an Agreement or the performance of its duties and obligations thereunder, other than your obligation to pay amounts due under the Agreement, will for all purposes in total be limited to an amount not to exceed the Fees actually paid by you pursuant to the Agreement over the lesser of (i) the then current term of the Agreement and (ii) the twelve (12) months preceding the date of the claim.
- Limitations on Damages. Subject to Section 11(c), in no event, whether as a result of breach of contract, tort liability (including negligence or strict liability) or otherwise, shall either Party be liable to the other for any special, indirect, incidental, exemplary, punitive, aggravated or consequential damages, or for damages for any loss of profits, loss of business, loss of revenue, or loss of anticipated savings or third party damages, or for damages for any loss of, or damage to, data, reputation, or goodwill.
- Exceptions. Sections 11(a) and 11(b) will not limit the liability of either Party for breaches of Section 6, its liability or obligations under Section 10 or Section 15, or for its infringement of the Intellectual Property Rights of the other Party.
- Certain Additional Limits. Our liability to you for any claim under Section 10(a)(i)(A) and (B) shall be limited to the amount of any limits applicable under the insurance held by us that is applicable to such claim, if any.
- Insurance. During the Term we shall maintain business insurance of the kinds typical to the industry in which we operate.
Term, Termination, Suspension.
- Term. The Agreement will commence on the Effective Date and will continue during the term of any outstanding Orders and related Service Delivery Terms until terminated in accordance with its terms (the “Term”). If no Order Form and Service Delivery Terms are in effect, the Term shall continue for a period of 180 days and then expire, subject to earlier termination in accordance with the Agreement.
Termination of Agreement for Material Breach, Bankruptcy etc., Convenience. Each Party may terminate an Agreement immediately upon written notice to the other Party:
- if the other Party materially breaches the Agreement and, if that breach is curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach; or
- if the other Party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the Party’s consent, if the other Party assigns its property to its creditors or performs any other act of bankruptcy or becomes insolvent and cannot pay its debts when they are due, or the other Party ceases to carry on all or substantially all, of its business that relates to the Services; or
- for convenience if there are no Order Form and Service Delivery Terms in effect hereunder at the time.
- Client Termination of Agreement or Order Form for Convenience. You may at any time terminate an Agreement or all Agreements for convenience by providing us with fifteen (15) days prior written notice of such termination. We will cease the performance of all Services under the Agreement, or each such Agreement, as the case may be, as of the effective date of termination, and you will remain liable for all amounts due under any terminated Agreement through to the end of the applicable terms.
- Supplier Termination of Agreement for Convenience. We may at any time terminate an Agreement for convenience by providing you with thirty (30) days written notice, provided that if any Orders and Service Delivery Terms are then outstanding under that Agreement we shall promptly after termination refund to you the pro-rated portion of any prepaid Fees that are unused at the time of termination.
- Suspension of Services for Non-Payment. We may on notice to you immediately suspend its performance of any Agreement if you are overdue in any payment obligation under the Agreement by thirty (30) or more days.
Other Terms Relating to Termination.
Upon the termination or expiry of an Agreement:
- We may invoice you, and you will pay us, all amounts due for Services performed thereunder up to the effective date of expiry or termination (and for clarity, upon a termination by you for convenience, through to the end of the term);
- Each Party will deliver to the other Party all of the other Party’s Confidential Information, or destroy its copies thereof and certify to the other Party that it has done so, as of the effective date of expiry or termination; and
- Termination does not affect a Party’s accrued rights and obligations at the date of termination.
- Upon the termination or expiry of an Agreement:
Each of the Parties will not, without the prior written consent of the other Party, solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of any other person, any Personnel of the other Party during the Term or during the twelve (12) months following termination or expiration of an Agreement. The foregoing will not apply to general solicitation in connection with any solicitation or recruitment not targeted at such Personnel, including, without limitation, through general advertisements or the efforts of any recruiting or employment agencies not targeted at such Personnel. For purposes of this Section, “Personnel” means employees in your case, and in our case means any employee and any direct or indirect independent contractor.
No Party will be liable to the other Party for any failure or delay in fulfilling an obligation hereunder, if said failure or delay is attributable to circumstances beyond its control, including, but not limited to, any fire, labor dispute or government measure (“Force Majeure”). Any deadline for fulfilling a Party’s obligations will be extended for a period of time equal to that of the continuance of the Force Majeure, provided that the Party uses reasonable efforts to minimize the effect of the Force Majeure on its performance under the Agreement. If either Party determines that it is unable to perform any of its obligations hereunder as a result of an event of Force Majeure, it will notify the other Party in writing of the occurrence of and reason for any such delay within a reasonable period of time after the commencement of the cause thereof. Notwithstanding the continuance of an event of Force Majeure, a Party may not delay performance of its obligations under any circumstances by more than thirty (30) days, otherwise the other Party may terminate the Agreement and, in the case of your termination, perform the same services yourself or obtain the same services from a third party.
References to Client.
On your prior approval, during the Term we may on our websites, promotional material, and similar materials make reference to you and include your logo and branding.
The expiration or termination of an Agreement will not affect or prejudice any rights or obligations which have accrued or arisen under the Agreement prior to the time of such termination and those rights and obligations will survive the expiration or termination of the Agreement. Notwithstanding any other provision of an Agreement, Sections 6, 8, 10, 11, 12, 13, 14, 18, 19, 20, this Section 17, and all other provisions of the Agreement necessary to give effect thereto will survive the expiration or termination of the Agreement and remain in full force and effect.
An Agreement will be governed by and construed in accordance with the laws of Ontario and the federal laws of Canada applicable therein. Each of the Parties irrevocably submits to the non-exclusive jurisdiction and venue of the courts of the Province of Ontario in Toronto, Ontario for the purpose of any suit, action or other proceeding arising out of or in connection with the Agreement or the subject matter hereof brought by either Party.
Notices sent to either Party as required by, or pursuant to, an Agreement must be in writing and will be effective when delivered in person, by mail or, in the case of routine operational notices, by email, one (1) day after being sent by overnight courier or email, or two (2) days after being sent by first class mail postage prepaid, to the addresses set forth in the Order Form. Claims under the Agreement and any other legal notices must be delivered by hand or mail, and also by email.
- The Parties are Independent. Our relationship to you is that of an independent supplier. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither Party has any authority of any kind to bind the other Party in any respect.
- The Parties are Responsible for their Own Personnel. Each Party is solely responsible for: (i) all wages, salaries and other amounts due to its respective employees, permitted subcontractors or representatives; and (ii) all obligations in respect of its employees, permitted subcontractors or representatives relating to income tax withholdings, employment insurance premiums, workers’ compensation, health care and pension plan contributions, and other similar employment-related responsibilities and liabilities.
- Waivers. A waiver of any default, breach or non-compliance under an Agreement is not effective unless in writing and signed by the Party to be bound by the waiver.
- Amendment. We may unilaterally amend these Terms of Service or Service Delivery Terms at any time on not less than thirty (30) days notice to you. If any such amendment materially changes the terms and conditions of an Agreement to your disadvantage, you may on notice to us within ten (10) days of such notice terminate the Agreement without penalty and we shall refund to you the pro-rated portion of any prepaid Fees that are unused at the time of termination. No other modification of or amendment to an Agreement will be valid or binding unless set out in writing and duly executed by the Parties.
- Enurement, Assignment. An Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective successors and permitted assigns. Either Party may upon the prior consent of the other Party (which shall not be unreasonably withheld or delayed) assign the Agreement and then outstanding Order Forms and Service Delivery Terms in their entirety to an affiliate, or to any entity to which it may merge, amalgamate, or otherwise transfer a substantial portion of its business or any line of business, outsource, or divest a particular department or line of business. A Party may not otherwise assign an Agreement or any right or obligation hereunder to any person, without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed.
- Subcontracting. We may delegate or subcontract all or any part of the Services to any third party. The delegating or subcontracting of all or any part of our obligations set out in an Agreement to any third party will not relieve us from any obligation or liability under the Agreement, and we will remain responsible for the performance its obligations subcontracted to and performed by all such third parties to the same extent as if such obligations were performed by us.
- Entire Agreement. These Terms of Service, together with an Order Form and Service Delivery Terms or Work Appendices attached to them and any agreements and documents to be delivered pursuant to their terms, constitutes the entire agreement between the Parties pertaining to the subject matter of that Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of any of the Parties in respect of the subject matter thereof.
- Conflict and Priority. In the event of any conflict or inconsistency between any provisions of an Agreement, the conflict or inconsistency shall be resolved in accordance with the following priority: (i) the Order Form; (ii) the Terms of Service; (iii) Service Delivery Terms, provided, however, that the provisions of a Service Delivery Terms will prevail over these Terms of Service to the extent the Service Delivery Terms states that it prevails and expressly refers to the provisions of these Terms of Service over which it prevails; and (iv) Work Appendix.
- Severability. If a court or other lawful authority of competent jurisdiction declares any provision of this Agreement invalid, illegal or unenforceable, such provision will be severed from this Agreement and this Agreement will continue in full force and effect with respect to all other provisions and all rights and remedies accrued under such other provisions and sections will survive any such declaration.
- No Contra Proferentum. The Agreement has been negotiated and approved by the Parties. Notwithstanding any rule or maxim of law or construction to the contrary, any ambiguity or uncertainty will not be construed against either of the Parties by reason of the authorship of any of the provisions of the Agreement.
- Counterparts. The Order Form may be executed in counterparts and by electronic delivery, each of which will be deemed an original, and both of which taken together will constitute one and the same agreement