Last Updated: November 30, 2018
This Master Services Agreement (the “Agreement”) is entered into between Hockeystick.co Inc. (“Hockeystick”) and the Client identified in the applicable Order Form referencing this Agreement or otherwise using the Services (as defined below) (the “Client”). Hockeystick and Client, by Client’s execution of an applicable Order Form or by use of the Hockeystick Service hereby agree to the following terms and conditions:
“Client Data” means all electronic data and information, or any derivatives thereof, uploaded, submitted or otherwise transmitted to or through the Hockeystick Service by Client and/or the Portfolio Companies.
“Confidential Information” means any business, marketing, technical, scientific, trade secret, intellectual property, pricing or other information disclosed by either Party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.
“Documentation” means the user and reference manuals, in whatever form recorded, provided by Hockeystick for access to the Hockeystick Service.
“Hockeystick Service” has the meaning given in Section 3.1 below.
“Hockeystick Software” means the Hockeystick web application software, in object code form only, and includes all updates, upgrades or patches provided by Hockeystick to the Hockeystick Software.
“Order Form” means the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of this Agreement and describes order-specific information such as subscription term, specific services and fees and payment terms.
“Marks” means a Party’s names, trade names, trade-marks, logos and domain names.
“Party” or “Parties” means Hockeystick and/or Client as the context so requires.
“Portfolio Companies” means Client’s portfolio companies which have registered for an account with Hockeystick and accepted the Terms of Service.
“Professional Services” means any data conversion, configuration, implementation, training or custom software development services to be performed by Hockeystick under this Agreement described in an Order Form and/or statement of work attached to the Order Form.
“Services” means the Professional Services and maintenance and support services provided by Hockeystick pursuant to this Agreement.
“Term” has the meaning given in Section 7.2 below.
“Terms of Service” means the current terms and conditions of use of the Hockeystick Service for end users which is available at https://hockeystick.co/terms.
“Usage Data” means data collected and generated by the Hockeystick Software related to usage of the Hockeystick Service and any other Services.
“Users” means individuals for whom Client has purchased subscriptions for the Hockeystick Service, including but are not limited to employees, consultants, contractors and agents of Client.
2. PURPOSE AND SCOPE
2.1 Purpose. This Agreement establishes the general terms and conditions to which the parties have agreed with respect to the provision of Services by Hockeystick to Client. Additional terms for the purchase of a specific Service are set forth in the Order Form. The parties acknowledge receipt of and agree to be bound by the terms and conditions of the Agreement.
2.2 Incorporation of Order Forms. At any time after execution of the initial Order Form, Client may purchase additional services or otherwise expand the scope of services granted under an Order Form, upon Hockeystick’s receipt and acceptance of a new Order Form. Client may order Professional Services under an Order Form on the terms set out in Schedule A below.
2.3 Order of Precedence. To the extent any terms and conditions of this Agreement conflict with the terms of an Order Form or any other document, the documents shall control in the following order: (i) Order Forms with the latest date(s), (ii) this Agreement and, (iii) any other documents expressly incorporated herein by reference.
3.1 The Hockeystick Service. The Hockeystick service enables registered users to communicate information to their stakeholders and/or other users and to generate data and information with respect to the same through use of the Hockeystick Software made available through Hockeystick’s platform (the “Hockeystick Service”). The underlying hardware, software, network storage and related technology required to run the Hockeystick Service is provided by Hockeystick and its third-party vendors and hosting partners. Through the Hockeystick Service, Hockeystick may also make available third-party software products available through the Hockeystick Service subject to their own license terms.
3.2 License Grant. Subject to the terms and conditions of this Agreement and payment of the applicable fees, Hockeystick hereby grants to Client a non-exclusive, non-transferable license to use the Hockeystick Software as part of the Hockeystick Service during the Term. The Hockeystick Software may only be accessed and used by authorized end users to process Client Data and separate licenses must be purchased for other entities who wish to use the Hockeystick Software. Hockeystick reserves the right to monitor the use of the Hockeystick Software and to charge for additional licenses if use is made of the Hockeystick Software in breach of the license restrictions in this Section 3.2. The Hockeystick Software is being licensed; not sold. Client acknowledges and agrees that title in and rights to the Hockeystick Software remains exclusively with Hockeystick and its licensors. Client's rights to the Hockeystick Software are strictly limited to those granted in this Agreement.
3.3 Client Responsibilities. Client is responsible for any and all Client Data and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data can be processed and transmitted via the Hockeystick Service. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Client Data; (ii) safeguard any login details provided for accessing the Hockeystick Service and prevent unauthorized access to or use of the Hockeystick Service and shall notify Hockeystick promptly upon becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using the Hockeystick Service.
3.4 Service Use Guidelines. Client shall use the Hockeystick Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Hockeystick Service available to any third party. Client shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Hockeystick Software or Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Hockeystick Service; (c) remove any proprietary notices, labels, or Marks from the Hockeystick Service or Software; or (d) access the Hockeystick Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Hockeystick Service.
3.5 Sponsors. If Client receives its right to access the Hockeystick Software through a Sponsor (being a third party who has agreed to pay some or all of Client’s fees for use of the Hockeystick Service), Client acknowledges and agrees that Client access to the Hockeystick Software will be royalty-free (or partially free) for the period of time that the Sponsor is responsible for payment of the fees, In the event that the fees for the Hockeystick Service which were paid by a Sponsor (in whole or in part) stop being paid by the Sponsor for whatever reason, Hockeystick will notify Client and Client will have the option to pay the fees directly to Hockeystick for continued use of the Hockeystick Software and Hockeystick Service. If Client does not elect to continue under a paid license with Hockeystick, Client’s right to access and use the Hockeystick Software and Hockeystick Service (and any other Services) will terminate. For greater certainty, if different terms than what is set out in this Section 3.5 are agreed in respect of Client’s sponsored account, the terms of the separate agreement will govern in respect of Client’s rights of use of the Hockeystick Service.
3.6 Support. Any support issues with the Hockeystick Service which Client cannot resolve should be notified to Hockeystick in accordance with the terms of the Hockeystick Service Level Agreement which is an attachment to the Order Form. Hockeystick will use commercially reasonable efforts to meet the service commitments in the Service Level Agreement including making the Hockeystick Service available during the Term except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Hockeystick’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
3.7 Professional Services. Hockeystick will perform any Professional Services in a professional and workmanlike manner and in accordance with the specifications and time frames agreed between the parties on an Order Form. Hockeystick and its personnel will have and maintain throughout the Term all skills, qualifications, seniority, knowledge of the Professional Services and experience necessary to perform the Professional Services. All Professional Services will be provided in accordance with the terms set out in Schedule A.
3.8 Non-Compete. During the term of the Agreement, Client shall not permit any department, group or business unit within Client’s organization that uses the Hockeystick Service to develop, manufacture, promote, sell or distribute any products or services which compete directly or indirectly with the Hockeystick Service.
3.9 Reservation of Rights. The rights granted under this Agreement are only as expressly set forth herein. No other right is or shall be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either Party under this Agreement.
4. FEES AND PAYMENT TERMS
4.1 Fees. Pricing for use of the Hockeystick Service and any other Services will be set out in an Order Form (the “Fees”) and will be fixed for the Initial Term indicated in the applicable Order Form with no automatic renewal. Unless the fees are paid or payable by a Sponsor, Client shall pay Fees in the amounts and at the times indicated in the applicable Order Form. Hockeystick may vary the Fees for any potential Extended Term, subject to Hockeystick giving Client not less than 60 days’ notice of such increase prior to the end of the then-current Term. Upon notice of a price change, Client shall have the option to terminate this Agreement within 60 days of being notified of the price change by providing written notice to Hockeystick.
4.2 Late Payment. All payments of Fees are due within 30 days of the date of the applicable invoice unless otherwise agreed in an Order Form. Any payment not received from Client by the due date will accrue late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher; from the date such payment was due until the date paid.
4.3 Overdue. If Client account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Hockeystick reserves the right to suspend the Hockeystick Software and/or Professional Services provided to Client, until such amounts are paid in full or terminate the Hockeystick Software and/or Professional Services and this Agreement.
4.4 Taxes and Deductions. Each Party agrees to pay all taxes, fees, value-added surcharges, import and export duties, and other assessments levied by federal, state, provincial, local and other governments related to its payments to the other under this Agreement, except for any withholding taxes on amounts due to a Party, which shall be borne by that Party and which shall be deducted by the paying Party from any payment remitted to the other Party. Each Party shall remit these taxes on behalf of the payee Party and provide the payee with the evidence of remittance.
5. OBLIGATIONS OF HOCKEYSTICK AND CLIENT
5.1 Obligations of Hockeystick. Hockeystick shall: (i) make the Hockeystick Software available to Client and its authorized end users; and (ii) perform the Hockeystick Services described in the applicable Order Form. Hockeystick will perform the Professional Services in a good and workmanlike manner and in accordance with the specifications and time frames agreed between the parties. Hockeystick shall carry at all times during the Term, commercial general liability insurance with a limit of not less than $2,000,000 inclusive per occurrence for bodily injury (including death) and damage to property including loss of use thereof. Such insurance shall at a minimum include coverage of broad form property damage, contractual liability, completed operations and product liability, and automobile liability (owned and non-owned), and such other types of insurance as would be carried by a prudent person performing such contract work.
5.2 Data Security and Privacy. Hockeystick acknowledges and agrees that it shall be responsible for establishing and maintaining an information security program that is designed to: (a) ensure the security and confidentiality of Client Data, including, without limitation, implementing and maintaining backup, security and business continuity measures and other technical and organizational measures; (b) protect against any anticipated threats or hazards to the security or integrity of Client Data; (c) protect against unauthorized access, accidental, or unlawful alteration, loss or destruction of or use of Client Data; (d) ensure the proper disposal of Client Data; and, (f) ensure that all permitted subcontractors of Hockeystick, if any, comply with all of the foregoing, all in accordance with best industry practices. Client Data shall be and remain the sole and exclusive property of Client.
5.3 Obligations of Client. Client shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Hockeystick, to allow Hockeystick to perform the Professional Services; (ii) carry out reviews and respond to requests for approval and information on a timely basis; (iii) ensure that Hockeystick has available to them personnel familiar with Client’s requirements and with the expertise necessary to permit Hockeystick to undertake and complete the Professional Services; and (iv) Client shall make available to Hockeystick all equipment, material, information, data, network access and/or facilities that Hockeystick may reasonably require to carry out its obligations.
6. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
6.1 Title. Hockeystick owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights, together “Intellectual Property Rights”), in and to Hockeystick’s Marks, materials and the Hockeystick Software including any and all modifications, derivatives, improvements and enhancements to the same. Client acknowledges and agrees that it has no right, license or authorization with respect to any of the Hockeystick Software (including any Intellectual Property Rights therein) except as expressly set forth in this Agreement. All other rights in and to the Hockeystick Software are expressly reserved by Hockeystick and its licensors.
6.2 Feedback. Hockeystick may freely use any suggestions, feedback or ideas Client may provide. By providing any feedback to Hockeystick, Client grants Hockeystick a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, royalty free, license to use the feedback that Client provides. Hockeystick may put Client’s provided feedback in various uses that may include but not limited to modifying and improving the Hockeystick Service, Hockeystick‘s other current and future services/products, services advertising or marketing materials.
6.3 Client Data. Clients and Portfolio Companies who use the Hockeystick Software shall exclusively own all data and content uploaded to the Hockeystick Service and generated through the use of the Hockeystick Software. Client hereby grants Hockeystick a non-exclusive, perpetual, royalty-free, worldwide license to copy, translate, adapt, distribute or otherwise use Client Data and Usage Data in any medium, mode or format for any lawful purpose, to provide the Hockeystick Services, create aggregate statistics, improve the Hockeystick Services, provide relevant content to Users, and to publish benchmark statistics and research, provided that such Client Data is aggregated and anonymized and does not publicly identify Client or the Portfolio Companies. Any Client Data consisting of personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (“Personal Data” and “GDPR” respectively) to which the GDPR applies, and the processing thereof, shall be governed under the terms and conditions set forth in the Hockeystick’s Data Processing Agreement (“DPA”). A current version of the DPA is available at https://about.hockeystick.co/data-processing-agreement. Without limiting the obligations of Client elsewhere in this Agreement or the DPA, unless otherwise expressly agreed in writing between Client and HockeyStick, Client will not provide or make available to HockeyStick: (i) “special categories of personal data” under the GDPR; or (ii) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Client or HockeyStick operate.
6.4 Publication of Client Data by Client. Client may use the Hockeystick Service to share or publish Client Data. Client agrees that once it publishes or makes available any Client Data to a third party that such third party shall be granted a non-exclusive, perpetual, royalty-free, worldwide license to use, copy and re-publish such data and Hockeystick shall have no liability for any third-party’s use of such data.
6.5 Confidentiality. Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party's Confidential Information. Confidential Information shall not include information which (i) becomes a part of the public domain through no act or omission of recipient; (ii) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (iii) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (iv) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser. Client and Hockeystick agree that the Confidential Information provided by Hockeystick shall be used by Client solely to receive services set forth in this Agreement and for no other purpose. Notwithstanding the foregoing, the recipient may disclose Confidential Information of the discloser to the extent it is required by a valid order of a court or other governmental body having jurisdiction, provided that the recipient provides the discloser with reasonable prior written notice and makes a reasonable effort to obtain, or to assist the discloser in obtaining, a protective order.
7. TERM AND TERMINATION
7.1 Agreement Term. This Agreement shall commence on the execution of the Order Form referencing this Agreement and will continue in full force and effect until the expiration or termination of all such Order Forms, unless otherwise terminated earlier as provided herein.
7.2 Service Term. The initial term of any services is specified in the Order Form (the “Initial Term” and shall automatically renew for the same length as the Initial Term on Hockeystick’s then applicable pricing (each an “Extended Term”) unless either party gives written notice at least 60 days’ prior to the expiration of the then-current Initial Term or Extended Term of intention to terminate (the Initial Term and any Extended Term(s) being the “Term”). For the avoidance of doubt, if Client is subscribed to use the Hockeystick Service through a sponsored account, Client’s service term will expire at the end of the Initial Term unless extended by the parties mutual written agreement.
7.3 Termination. Either Party (the “Terminating Party”) may terminate this Agreement by written notice to the other Party (the “Defaulting Party”) of any material breach by the Defaulting Party of any material provision of this Agreement and if the Defaulting Party does not cure such breach to the reasonable satisfaction of the Terminating Party within thirty (30) days from the date of its receipt of such written notice, this Agreement shall be terminated effective as of such date without any further action required on the part of the Terminating Party. In addition, either party may terminate this Agreement by giving a written notice to the other party if the other Party applies for or consents to the appointment of a receiver, trustee, or liquidator for substantially all of its assets or such a receiver, trustee, or liquidator is appointed or such Party has filed against it an involuntary petition of bankruptcy that has not been dismissed within sixty (60) days thereof, or files a voluntary petition of bankruptcy, or files a petition or answer seeking reorganization and such matter has not been completed within sixty (60) days thereof, or an arrangement with creditors and such matter has not been completed within sixty (60) days thereof, or seeks to take advantage of any other law relating to relief of debtors.
7.4 Effect of Termination. The termination of this Agreement for any reason shall not limit any rights granted by Hockeystick or Client prior to the date hereof.
7.5 Suspension. Hockeystick will be entitled to suspend any or all Services upon ten (10) days written notice to Client in the event Client is in breach of this Agreement. However, Hockeystick may suspend Client’s access and use of the Hockeystick Services immediately, with notice to Client following promptly thereafter, if, and so long as, in Hockeystick sole judgment, there is a security or legal risk created by Client that may interfere with the proper continued provision of the Hockeystick Services or the operation of Hockeystick’s network or systems. Hockeystick may impose an additional charge to reinstate service following such suspension.
7.6 Post Termination. Hockeystick has no obligation to retain Client Data beyond three months after the expiration or termination of the Hockeystick Services.
7.7 Survival. The provisions of Sections 5, 6, 7.7, 8.3, 9 and 10 shall survive the termination of this Agreement for any reason; provided, however, that termination for material breach pursuant to Section 6.2 above shall, as of the effective date of the termination, relieve the Terminating Party from any and all obligations of continued performance under this Agreement.
8. WARRANTY AND INDEMNITIES
8.1 Warranty. During the Term Hockeystick shall use reasonable efforts to remedy or replace any defect or deficiency, in the goods or services upon notice from the Client to do so, and at no cost to Client, during such period. Hockeystick warrants that it has the right to grant to Client all licenses and rights in this Agreement and to use the Hockeystick Software, including any third-party rights incorporated into the Hockeystick Software, and that exercise by the Client of all of the rights granted in this Agreement shall not infringe the copyright or property rights of any third party.
8.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT HEREIN THE SERVICES AND THE HOCKEYSTICK SOFTWARE ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION, WARRANTY, OR CONDITION OF ANY KIND. HOCKEYSTICK AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE HOCKEYSTICK SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT AND HOCKEYSTICK SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.3 Mutual Indemnity. Each party (the “Indemnifying Party”) shall defend the other party and its directors, officers and employees (collectively the “Indemnified Parties”) from and against any actions, suits, or proceedings brought against the Indemnified Parties by a third party to the extent arising as a result of: (i) any representations, warranties or other commitments (including any breach thereof) made by the Indemnifying Party on behalf of the Indemnified Party to any third party (in respect of that party’s services or technology); (ii) violation of any law or regulation by the Indemnifying Party (including, without limitation, any privacy or personal information protection law or regulation); or (iii) real or tangible property damage or bodily injury or death caused by the negligent or wilful acts or omissions of the Indemnifying Party, its employees, subcontractors and agents in connection with this Agreement (collectively any actions, suits, or proceedings falling within (i), (ii) or (iii) hereinafter referred to as a “Claim”) and shall indemnify and hold the Indemnified Parties harmless from and against any damages or costs (including reasonable attorneys' fees) awarded in to such third party against the Indemnified Parties by a court of competent jurisdiction in respect to any such Claim, subject to the conditions that the Indemnified Parties: (a) promptly give written notice of each Claim to the Indemnifying Party; (b) give the Indemnifying Party sole control of the defense and settlement of each Claim (provided that the Indemnifying Party may not settle or defend any Claim unless it unconditionally releases the Indemnified Parties of all liability); and (c) provide to the Indemnifying Party, at the Indemnifying Party's cost, all reasonable assistance and co-operation in respect to each Claim.
8.4 Hockeystick Intellectual Property Indemnification.
a) Hockeystick shall defend Client, its directors, officers and employees (collectively the “IP Indemnified Parties”) from and against any actions, suits, or proceedings brought against the IP Indemnified Party by a third party alleging that the Hockeystick Software infringes or misappropriates the intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the IP Indemnified Parties harmless from and against any damages or costs (including reasonable attorneys' fees) awarded to such third party against the IP Indemnified Parties by a court of competent jurisdiction in respect to any such IP Claim, subject to the conditions that the IP Indemnified Parties: (a) promptly give written notice of each IP Claim to Hockeystick; (b) give Hockeystick sole control of the defense and settlement of each IP Claim; and (c) provide to Hockeystick all reasonable assistance and co-operation in respect to each IP Claim.
b) Mitigation. If (a) Hockeystick becomes aware of an actual or potential IP Claim, or (b) provides Client with notice of an actual or potential IP Claim, Hockeystick may, at its sole option and determination: (I) procure the necessary rights to continue to offer the Hockeystick Software; or (II) replace or modify the affected portion of the Hockeystick Software with equivalent or better functionality so that use of the Hockeystick Software is no longer infringing or misappropriating; or (III) if (I) or (II) are not commercially reasonable, terminate this Agreement.
c) Exclusions. The indemnity in Section 8.4(a) does not include any IP Claim made against the IP Indemnified Parties as a result of the use of the Hockeystick Software outside the scope of the rights or as a result of any unauthorized modification or breach of the license terms of this Agreement.
9. LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained in this Agreement, any Order Form, SOW, or other exhibits and attachments, Hockeystick’s total liability for any and all damages may not exceed: (i) with respect to the Hockeystick Software and its use, the fees (excluding implementation or other Professional Services fees) paid by Client for the twelve (12) month period preceding the action or event giving rise to the liability or (ii) with respect to the Professional Services, the total fees received by Hockeystick from Client for the Professional Services under the SOW giving rise to the liability. The foregoing limitation will not apply to either party’s indemnity obligations set forth in Section 8 of this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, HOCKEYSTICK AND ITS LICENSORS AND SUPPLIERS WILL NOT BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION, INACCURATE INFORMATION OR LOSS OF INFORMATION OR COST OF COVER) THAT THE CLIENT MAY INCUR OR EXPERIENCE IN CONNECTION WITH THE AGREEMENT OR THE HOCKEYSTICK SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. GENERAL PROVISIONS
10.1 Independent Contractors. Client and Hockeystick acknowledge and agree that they are independent contractors in a contract for goods and/or services and no employer - employee, partnership nor agency relationship is intended or created by their agreement.
10.2 Force Majeure. If either Hockeystick or Client is unable to perform any of its obligations in this contract by reason of fire or other casualty, strike, order of a public authority, Act of God, or other cause beyond the reasonable control of such Party, then such Party shall be excused from such performance of the contract for the duration of such cause.
10.3 Governing Law. This Agreement shall be construed and governed by the laws of the Province of Ontario and federal laws of Canada applicable therein. The United Nations Conventions on Contracts for the International Sale of Goods and any legislation enacted for same do not apply.
10.4 Waiver and Severability. Neither this Agreement nor any terms hereof may be modified, amended, waived, or terminated except by an instrument in writing signed by the Party against whom enforcement thereof is sought. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement without affecting any remaining terms hereof.
10.5 Entire Agreement. This Agreement (including any executed Order Form(s)), the Terms of Service, DPA and any other documents referenced herein or in any executed Order Form) embodies the entire Agreement and understanding between the Parties hereto and supersedes all prior agreements and understanding relating to the subject matter hereof. Neither Party has entered into this Agreement in reliance upon any representation, warranty, condition or undertaking of the other Party that is not set out or referred to in this Agreement.
10.6 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other party. Notwithstanding the foregoing, Hockeystick may freely assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of Client. Subject to the foregoing limits on assignment, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
10.7 Notices. Any and all notices required or permitted to be made under this Agreement shall be in writing and delivered in person or by registered mail or courier, unless otherwise agreed to by the Parties in writing using the addressed provided on the Order Form.
10.8 Publicity. Client agrees that Hockeystick may communicate the collaboration between Client and Hockeystick under this Agreement and display Client’s logo on marketing materials, subject to the prior written consent of Client, not to be unreasonably withheld, conditioned or delayed, on the use and intended publication.
10.9 Interpretation. The headings of the Sections of this Agreement have been included for the convenience of the parties and are not part of the Agreement, nor are the headings to be used to alter or interpret the terms hereof.
PROFESSIONAL SERVICE TERMS
The following terms and conditions are incorporated into the Master Services Agreement if Client orders Professional Services from Hockeystick through execution of an Order Form. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.
Hockeystick is willing to provide Professional Services (including the development of tangible work product arising from Professional Services “Deliverables”) on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule. Such Professional Services may include: instruction and training on the use of Hockeystick products and services; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.
1. General. All Professional Services to be performed and deliverables to be developed by Hockeystick at Client’s request shall be described in a Statement of Work, in the form attached as Exhibit A or such other form as may be mutually agreed by the parties. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule. In the event of a conflict between a Statement of Work and this Schedule or the Agreement, this Schedule or the Agreement, as the case may be, shall prevail unless the terms of the Statement of Work expressly vary the terms of the Agreement and the Statement of Work is signed by authorized signatories of both parties.
2. Hockeystick’s Obligations. Hockeystick shall perform Professional Services and develop deliverables for Client as described in any Statements of Work agreed to in writing by the parties. Hockeystick shall perform such Professional Services and develop deliverables in a reasonable and workmanlike manner in keeping with industry standards and practices. Hockeystick shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing deliverables. Client acknowledges and agrees that Hockeystick may retain the Hockeystick Services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Hockeystick in performing, Professional Services and developing deliverables under this Schedule or a Statement of Work. Hockeystick personnel and/or Subcontractors shall remain under the direction and control of Hockeystick. If Hockeystick is performing any Professional Services or developing any deliverables at a Client facility, then Hockeystick shall comply with all Client facility policies, procedures and rules that have been communicated to Hockeystick in writing.
3. Client Obligations. Client shall provide timely performance of its obligations under this Schedule or any Statement of Work as required for Hockeystick to perform its obligations under this Schedule or any Statement of Work. In support of such obligations, Client shall provide sufficiently qualified personnel who are capable of completing Client’s duties and tasks pursuant to this Schedule or any Statement of Work. Client acknowledges and agrees that any delay on its part in the performance of its obligations will have an effect on Hockeystick’s performance of the Professional Services and development of the Deliverables.
Hockeystick may provide Professional Services or may develop deliverables at Client’s facilities or at Hockeystick’s facilities as set forth in the relevant Statement of Work. If Professional Services are to be provided or deliverables are to be developed at Client’s facilities, Client shall provide Hockeystick with access to Client’s facilities during normal business hours and at such other times as may be reasonably requested by Hockeystick to facilitate the timely performance of the Professional Services and development of the Deliverables. Client shall also provide Hockeystick personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services or developing Deliverables at Client’s facilities.
Client shall designate a project management contact for the purposes of communication with Hockeystick. The project management contact shall be the primary point of contact for Client with Hockeystick for matters relating to the provision of Professional Services and development of deliverables.
4. Price and Payment. Client shall pay Hockeystick the fees set forth in the Statement of Work either on a time and materials basis at Hockeystick’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Client shall reimburse Hockeystick for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Hockeystick in the performance of any Professional Services or development of any deliverables, provided that such expenses are approved in advance in writing by Client. The fees for Professional Services and development of deliverables shall exclude all applicable taxes.
Unless otherwise specified in the Statement of Work, Hockeystick shall invoice Client for fees for Professional Services and development of deliverables provided pursuant to this Agreement or a Statement of Work on a monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.
5. Term and Termination. This Schedule shall remain in effect only during the Term. Client may terminate a Statement of Work without cause upon thirty (30) days prior written notice to Hockeystick. If Client terminates a Statement of Work for convenience, Client shall pay Hockeystick the full fee for any Professional Services performed or in the case of the development of Deliverables a pro rata portion of the full fee to reflect the amount of development effort (including all other costs for which Hockeystick has the right to reimbursement) up to the effective date of termination of such Statement of Work.
Each party shall be entitled to immediately terminate this Schedule or a Statement of Work for cause in the event of: (i) a material breach by the other party of its obligations under this Schedule or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Schedule and any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
6. Intellectual Property Rights. Hockeystick shall own all right, title and interest and all intellectual property rights to any Deliverables created by Hockeystick pursuant to this Schedule or any Statement of Work hereunder and the deliverables shall not be considered “works made for hire”. Hockeystick shall retain all right, title and interest and all intellectual property rights to any and all Hockeystick proprietary information and Hockeystick software. Subject to payment of the fees set forth in the applicable Order Form or Statement of Work, Hockeystick grants to Client a non-exclusive, non-transferable license to use the deliverables solely in connection with Client’s permitted use of the Hockeystick Service in accordance with the terms of the Agreement.
7. Acceptance. Upon Client's receipt of each specific deliverable or notification of completion of any Professional Services, Client will have one (1) week (unless another period is specified in the applicable Statement of Work) to test and review such deliverable to confirm that the deliverables and/or Professional Services have been duly delivered and are in material compliance with the specifications set out in the relevant Statement of Work (“Acceptance Tests”). The parties may agree on an Acceptance Test plan in the applicable Statement of Work, which will specify the test criteria and nature of the Acceptance Tests to be conducted. In the absence of an agreed-upon Acceptance Test plan, Client will perform the Acceptance Tests in a commercially reasonable manner. Hockeystick will, at no additional cost to Client, provide any support, assistance and consultation as may be reasonably necessary to facilitate Client's testing and review. The Acceptance Tests shall be conducted to meet any timeframe indicated in the Statement of Work. In the event that Client shall, without good cause fail to test the Deliverables within the timeframe set forth in the Statement of Work (if any), or otherwise within a reasonable time, Hockeystick may provide one week’s written notice to Client of its intent to conduct such Acceptance Tests without the presence of Client and if Client has not yet begun such Acceptance Tests after receipt of such notice from Hockeystick, Client will be deemed to have accepted the results of such Acceptance Tests. The Acceptance Tests will consist in running the tests described in the Acceptance Test plan (if any) on the deliverables or confirming that the Professional Services meet the specifications set out in the relevant Statement of Work. If, in Client's reasonable discretion, a Deliverable or service does not comply with the applicable specifications as set forth in the Statement of Work, Client shall notify Hockeystick promptly of its rejection of such deliverable or service by written notice. Such notice will specify the reasons the Deliverable or service fails to meet the relevant specifications. Hockeystick will, at no cost to Client, use commercially reasonable efforts to correct any deficiencies and provide Client with a revised Deliverable or reperform the defective service as soon as reasonably practicable. Client will have the right to re-test the revised Deliverable or re-review the reperformed service in accordance with this Section. If Client does not provide feedback within the 1 week allocated for review or re-review of a Deliverable or service, Client will be deemed to have accepted the Deliverable or service.