This Agreement
made effective upon initial payment and acceptance, Between: Netdigix Systems
Inc
(“NETDIGIX“) And:
(the
“Client“)
Now
Therefore in
consideration of the premises and mutual covenants herein, the parties agree
that:
SERVICES
1. NETDIGIX will
provide the services and deliverables (which may include chattels) set forth by
the Package chosen by the client and listed in the invoice.
2. The Client
acknowledges that this Agreement, including any schedules thereto, assumes that
the Client will maintain, at the cost of the Client, adequate warranty and third
party support plan or contract as recommended by NETDIGIX from time to time.
3. The Client will
maintain adequate warranty and any applicable third party support plans or
contracts for all hardware, software, and other goods contemplated herein to be
serviced or used by NETDIGIX.
4. NETDIGIX will
not be liable for failure, delay or interruption in the Services caused by the
Client’s failure to adhere to, and implement, recommendations made by NETDIGIX
in a timely manner.
TERM
5.
The term of this Agreement (the “Term”) will commence on the
Effective Date and will continue for 1 year unless sooner terminated in
accordance with this Agreement.
6.
On the day immediately following the last day of the Term, and on
each subsequent anniversary of that day, the term of this Agreement will be
renewed for a one-year period (the “Renewal Term”), unless sooner
terminated in accordance with this Agreement.
PAYMENT
7. The Client will
pay NETDIGIX for the Services as invoiced, at the rates and prices set forth in
each Statement of Work, within 30 calendar days of the receipt of the invoice by
the Client.
TERMS AND
CONDITIONS
8. This Agreement
includes the terms and conditions set forth in the “Term and Conditions”
attached hereto as Schedule B.
9. NETDIGIX from
time to time may modify the “Terms and Conditions” in its sole discretion, and
forthwith notify the Client of the “Terms and Conditions” then in force.
SUPPORT
10. In order to
ensure and facilitate efficient delivery of the Services, NETDIGIX may establish
Policy and Procedure as it deems necessary, and the Client will comply with such
Policy and Procedure as established by NETDIGIX from time to time.
11. NETDIGIX may, in
its sole discretion, modify its Policy and Procedure and forthwith notify the
Client of its Policy and Procedure then in force either by providing a copy of
the Policy and Procedure the in force to the Client or by providing them with
method of accessing such Policy and Procedure via website.
SCHEDULE
B
TERMS AND
CONDITIONS
These terms and
conditions will govern all Services and all Statements of Work, and are in
addition to the terms appearing on page one of this Agreement.
1. FEES AND
PAYMENT
1.1. NETDIGIX will
provide the Client with an itemized invoice for each month or for such other
shorter or longer period as the parties may agree from time to time by email,
regular postal mail, or facsimile and the Client will make payment in accordance
with this section 1.
1.2. All invoices
rendered by NETDIGIX are due within 30 calendar days of receipt by the Client.
1.3. Invoices
delivered by email or by facsimile will be deemed to be received by the Client
upon transmission by NETDIGIX. Invoices delivered by regular postal mail will be
deemed to be received by the Client on the second business day following the
date of mailing by NETDIGIX.
1.4. Title to any
hardware or software delivered or provided by NETDIGIX under this Agreement will
remain with NETDIGIX until payment in full has been received by NETDIGIX for
such hardware or software.
1.5. If payment in
full is not received by NETDIGIX within 30 calendar days of receipt by the
Client of any invoice, interest of 19.50% per annum, calculated monthly not in
advance, will accrue on the outstanding balance on the 31st calendar
day from the date of receipt of the invoice, until full payment of all
outstanding balance has been received. Partial payment of outstanding balance
will first apply toward the interest owing thereunder.
1.6. Without limiting
the generality of the foregoing, NETDIGIX may suspend or terminate any and all
of the Services without notice to the Client, if the Client, on more than two
separate occasions, fails to pay the invoice within 45 days of receipt.
2. NETDIGIX’S
PERSONNEL
2.1. NETDIGIX may, in
its sole discretion, employ the services of qualified sub-contractors and
third-party service providers to provide or deliver any portion or component of
the Services.
2.2. NETDIGIX may, in
its sole discretion, add or remove any employee, sub-contractors, or third-party
service providers assigned to the Services by NETDIGIX.
2.3. The Client will
not contract with, attempt to contract with, or otherwise employ the services of
any sub-contractors or employees of NETDIGIX, directly, without the express
written consent of NETDIGIX while this Agreement is in force and for eighteen
(18) months following termination of this Agreement.
3. PROJECT
MANAGEMENT
Each party will
appoint a Project Manager who will co-ordinate that party’s activities related
to this contract. The Project Manager of the Client will issue general direction
and guidance in connection with the Services. The Project Manager of NETDIGIX
will issue assignments, general direction and guidance to sub-contractors or
employees of NETDIGIX in connection with the Services.
4. ADDITIONS AND
MODIFICATIONS
4.1. The parties, by
mutual agreement, may at any time by written notice amend any Statement of Work,
to add, delete or modify all or any part thereof, whether or not within the
general scope of that Statement of Work.
4.2. For the purposes
of this section 4, authorization by any one of the Project Managers of the
Client is deemed to be the authorization of the Client, unless the Client
notifies NETDIGIX otherwise on or before the request for authorization of
amendment of Statement of Work is submitted by NETDIGIX.
4.3. If any amendment
of Statement of Work increases the cost of or the time required for the
performance of the Services by NETDIGIX, unless the parties agree otherwise:
(a) the Client will
pay to NETDIGIX for any additional time required for the performance of the
Services by NETDIGIX at the rate of $125.00 per hour, and
(b) the Client will
be liable for the cost of all additional material, including, but not limited
to, any additional hardware or software.
4.4. The Client
acknowledges and agrees that:
(a) the Client will
be liable for damages caused by the Client’s incorrect, negligent, or erroneous
use of any software, hardware, data or other property of the Client (the “User
Damage”);
(b) the Client will
be liable for damages caused by any act of God or the public enemy, war, riot,
embargo, fire, explosion, sabotage, flood, sewer/drain backup, or sprinkler
leakage (“Extraordinary Damage”) to any software, hardware, data or other
property of the Client;
(c) without limiting
generality of the foregoing, the Client will be liable for any and all damages
to any software, hardware, data or other property of the Client for which the
Client has an existing insurance plan covering such damages (the “Insured
Damage”);
(d) the correction
or repair of the User Damage, the Extraordinary Damage, or the Insured Damage,
will be excluded from, and will not form a part of, any existing Statement of
Work; and
(e) if requested by
the Client, NETDIGIX will correct or repair the User Damage, th Extraordinary
Damage, or the Insured Damage and the Client will pay NETDIGIX for the time
spent to correct or repair the User Damage at the rate of $125.00 per
hour.
4.5. Notwithstanding
section 4.4 above, NETDIGIX may choose, in its sole discretion, to correct or
repair the User Damage as part of an existing Statement of Work.
5. PROPERTY
RIGHTS
5.1. All
work products, including without limitation reports, data, designs, summaries,
background data, functional and technical specifications, code, and programming
or instructional documentation, produced or authored by NETDIGIX, its employees
or sub-contractors in the performance of or in connection with any Services
(collectively, the “Works”), will be the property of NETDIGIX, save and except
any information or data provided to NETDIGIX by the Client.
5.2.
The Client will provide all assistance reasonably required to perfect
the rights of NETDIGIX in the Works hereunder.
6. NETDIGIX
COVENANTS
6.1. NETDIGIX will
use commercially reasonable efforts to keep confidential all information
concerning the Client and its businesses and affairs, and the Services,
including without limitation the terms of this Agreement and every Statement of
Work.
7. NETDIGIX
WARRANTIES
7.1. NETDIGIX will
perform the Services in a competent, diligent, professional and careful manner,
consistent with the industry standards for such services.
8. SOFTWARE LICENCE
AGREEMENTS
8.1. The Client will
abide by the “Terms and Conditions regarding use of Microsoft software” and any
and all appropriate software license agreements for all other software that are
obtained, used, or otherwise accessed, by NETDIGIX.
9. INDEMNITIES
9.1. The Client will
at its expense defend, indemnify and hold harmless NETDIGIX and its directors,
officers, employees, agents, successors and assigns from and against any and all
Losses (as hereinafter defined) arising from or in connection with:
(a) breach by the
Client of any provision of this Agreement or any Statement of Work;
(b) damage or injury
to persons or property caused in whole or in part by any act or omission of
NETDIGIX or any of its employees, representatives or sub-contractors to the
extent that such damage or injury was incurred in connection with the provision
of services by NETDIGIX to the Client; or
(c) without limiting
the generality of section 9.1.(b),
any claim (an “Infringement Claim”) made against the Client alleging
infringement of any patent, copyright, trademark, licences, service mark, trade
name, trade secret or other proprietary right arising from any service, system,
software, product or other item provided to the Client by NETDIGIX.
9.2. If any service
or deliverable that is part of the Services cannot be used or is interrupted due
to an Infringement Claim, the Client will at its option and expense:
(a) arrange to
replace the affected service or deliverable with a compatible, functionally
equivalent and non-infringing service or deliverable;
(b) modify the
affected service or deliverable to avoid the claim; or
(c) obtain a license
for NETDIGIX to use the affected service or deliverable.
9.3. In the event
that NETDIGIX has actual knowledge of infringement by the Client of any patent,
copyright, trademark, licences, service mark, trade name, trade secret or other
proprietary right arising from any service, system, software, product or other
item, and NETDIGIX is required to disclose such act of infringement pursuant to
law or any contracts to which NETDIGIX is a party, NETDIGIX will provide the
Client with prompt notice thereof. Upon provision of notice to the Client,
NETDIGIX may disclose the act of infringement by the Client to the appropriate
authority or party if NETDIGIX believes that NETDIGIX is legally required to do
so.
9.4. For purposes of
this section 9,
the term “Losses” includes all claims, actions, causes of action, expenses of
investigation, costs (including without limitation legal fees and
disbursements), liabilities, losses, damages, settlement amounts, judgements,
taxes, interest and penalties of any kind.
10.LIMITATION OF
LIABILITY
10.1. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT
NETDIGIX OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SUB-CONTRACTORS OR
AGENTS, WILL IN NO EVENT BE LIABLE TO THE CLIENT FOR ANY ACTUAL, DIRECT,
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES
(INCLUDING LOST PROFITS), REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT
OF THE PERFORMANCE OF SERVICES CONTEMPLATED HEREIN OR IN ANY WAY ARISING OUT OF
THIS AGREEMENT, WHETHER IN AN ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH
OF WARRANTY, DELAY, NEGLIGENCE, TORTIOUS BEHAVIOR (INCLUDING STRICT LIABILITY),
PATENT OR INTELLECTUAL PROPERTY MATTERS OR ANY OTHER LEGAL OR EQUITABLE THEORY.
10.2. ANY LOSS OF
PROFITS, REVENUES, CUSTOMERS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOSS OF
DATA, INTERRUPTION OF THE SERVICES, INHERENT HARDWARE DEFECTS, BUSINESS
INTERRUPTION, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES INCURRED BY THE CLIENT HOWEVER CAUSED OR ARISING, EVEN IF
NETDIGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SAME OR IF SAME WERE REASONABLY
FORESEEABLE.
10.3. UNLESS OTHERWISE
STATED IN THIS AGREEMENT, NETDIGIX MAKES NO WARRANTIES IMPLIED, EXPRESS,
STATUTORY OR OTHERWISE AT LAW, OR ARISING OUT OF COURSE OF DEALING OR USAGE OF
TRADE.
11.TERMINATION
11.1. NETDIGIX may
terminate this Agreement or any Statement of Work in whole or in part upon two
weeks of notice in writing to the Client.
11.2. The Client may
terminate this Agreement or any Statement of Work upon:
(a) expiration of
the Term or the Renewal Term, as the case may be; or
(b) one month notice
in writing given by the Client to NETDIGIX, with the effective date of
termination being the 31st day from the date NETDIGIX receives the
notice of termination from the Client (the “Effective Date of Termination”),
provided that the Client has paid to NETDIGIX all amount due and owing to the
Effective Date of Termination, and 50% of the Monthly Rate (as defined in
Schedule A) for the remainder of the Term or the Renewal Term, as the case may
be.
11.3. NETDIGIX may,
immediately upon written notice, terminate all or any part of this Agreement or
any Statement of Work if:
(a) The Client
materially or repeatedly breaches any provision of this Agreement or any
Statement of Work;
(b) The work
environment becomes unpleasant or unmanageable as declared by NETDIGIX in its
sole discretion;
(c) a receiver is
appointed to control the conduct of the business of the Client or the Client
becomes bankrupt or insolvent or takes the benefit of any legislation in force
for bankrupt or insolvent debtors; or
(d) proceedings are
instituted for the winding-up or termination of the corporate existence of the
Client;
11.4. Upon termination
of this Agreement or Statement of Work:
(a) The Client will
immediately pay NETDIGIX all outstanding amounts due to NETDIGIX under this
Agreement.
(b) NETDIGIX will execute and deliver to the Client such assignments and
transfers as the Client may direct, to transfer to the Client NETDIGIX’s
interest in any product, license, or contractual right (including without
limitation any item which is part of the Services) that NETDIGIX has acquired or
created for purposes of meeting any of its obligations with respect to that
Statement of Work.
