Master Service Agreement – Canada
This Master Services Agreement (the “Agreement”) is made by
Halton Indoor Climate Systems LTD,
1021 Brevik Place, Mississauga, Ontario L4W 3R7 (“Contractor”) and (“Customer”).
Customer desires to engage Contractor from time to time to provide certain Services, and Contractor desires to provide Services all under the terms and conditions of the Agreement.
AGREEMENT
1) SERVICES; STATEMENTS OF WORK
(a) Statements of Work. Customer agrees to engage Contractor to provide services to Customer on the terms and conditions contained in this Agreement and as described in the Statement(s) Of Work, attached hereto and incorporated fully herein by reference (“SOW”). As used in the Agreement, the term “Services” means those services for a project described in the SOW. Notwithstanding the foregoing, any Services provided by Contractor to Customer during the Term, as defined below, that are not documented in a SOW or another written agreement between the parties will be governed by the terms of this Agreement.
(b) Services to Affiliates. For purposes of the Agreement, “Affiliate” means, with respect to the Customer, any corporation, company, partnership, trust, sole proprietorship, or other entity or individual that (a) is owned or controlled by Customer, in whole or in part; (b) owns or controls Customer, in whole or in part; (c) is under common ownership or control with Customer, in whole or in part; or (d) Customer represents through an agreement. Any Affiliate of Customer may contract for Services with Contractor under the Agreement by a signed SOW. For purposes of each SOW between Contractor and Affiliate, the term Customer as used in the Agreement will refer to the Affiliate that has executed the SOW (including in respect to confidentiality and indemnification provisions of the Agreement) and such Affiliate with respect to the Services contemplated under the SOW.
2) COMPENSATION
(a) Customer agrees to pay to Contractor the fees (“Fees”) in the amounts and on the terms set out on the SOW for performance of Services, as applicable. Contractor will provide invoices for Fees. All Fees are due and payable within 30 days after the date of Contractor’s invoice. Payment may be made by check or EFT (Electronic Fund Transfer) payable to Halton Indoor Climate Systems LTD and mailed to Halton Indoor Climate Systems LTD, ATTN: Patricia Doherty, 1021 Brevik Place, Mississauga, Ontario L4W 3R7, and the invoice number shall be noted on the check. Payments made by credit card will be subject to a 3% convenience fee. All amounts not paid when due will bear interest at the rate of 1.5% per month or the highest rate allowed by law until paid in full.
3) TERM AND TERMINATION
(a) Term. Unless terminated sooner as provided below, the Term of this Agreement will expire one (1) year from the Effective Date (the “Initial Term”). Upon expiration of the Initial Term, the Agreement will automatically renew for consecutive renewal terms of one year (each a “Renewal Term”) unless either party gives written notice to the other at least sixty (60) days prior to the expiration of any term of its intention to not renew the Agreement. The Initial Term and any Renewal Term may be collectively referred to in this Agreement as the “Term.” A SOW may contain a shorter term length than this Agreement.
(b) Termination. Notwithstanding any provision in this Agreement, if Customer materially breaches this Agreement, including, without limitation, by failing to make any payment when due or failing to comply with its obligations under this Agreement, Contractor may discontinue the Services and terminate this Agreement immediately upon providing written notice of termination to Customer. Following termination of this Agreement, Contractor shall have no obligation to provide further Services, and all Fees for Services provided up through the date of termination shall be immediately due and payable in full. If Customer has previously paid for Services that have not yet been provided as of the date of termination, Contractor will refund to Customer any unearned portion of those Fees on a pro-rated basis.
4) CUSTOMER’S OBLIGATIONS
(a) Customer agrees to give Contractor and its workers full access to its Premises to prepare for and perform services, as applicable. By signing this Agreement, Customer guarantees that it has full authority to allow access to the Premises and to permit services to be provided, and that no other consent is needed.
(b) Customer agrees to provide adequate utilities, broadband Internet connectivity and/or computer network service for the Services to be provided, as applicable. If the Services are interrupted or delayed because of a problem with access, power outages, or the utilities, broadband Internet connectivity or computer network service are inadequate, Contractor shall not be liable for any damages of any kind that Customer may incur, and Contractor may charge additional amounts to complete the Services.
(c) Customer must advise Contractor in advance if any third party intends to carry out work on the utilities, broadband Internet connectivity, or computer network at its Premises, as this may affect the Services’ effectiveness.
(d) Customer agrees to permit Contractors’ representatives access to the Premises for the purposes of maintenance or inspection.
5) SUSPENSION OR CANCELLATION OF THIS AGREEMENT. Customer understands that Contractor may stop or suspend Services for any of the following reasons: (a) strikes, severe weather, earthquakes, pandemics, epidemics, or other such events beyond Contractor’s control affecting its ability to continue Services; (b) an interruption or unavailability of Services as a result of a disruption to the utilities, broadband Internet connectivity or Customer’s computer network; (c) Customer’s failure to pay make any payment due hereunder; or (d) Customer becomes a debtor in a bankruptcy proceeding.
6) RELATIONSHIP. The Parties understand and agree that Contractor is an independent contractor; that Contractor is not an employee, agent or servant of the Customer; and that this Agreement does not create a joint venture or partnership between the Parties.
7) CONTRACTOR IS NOT AN INSURER. Customer understands and agrees that Contractor is not an insurer of the Customer’s property or Premises. Customer understands and agrees that the amount it pays hereunder is based solely on the value of the Services, and Contractor expressly disclaims all warranties, express or implied, related to the Services, unless expressly set out in this Agreement or otherwise agreed by the Parties in writing.
8) DISCLAIMER OF WARRANTIES. Except as expressly provided in this Agreement, the Services are provided at the Customer’s sole risk on an “as is” and “as available” basis, with no guarantee concerning performance or any other aspect of the Services. Contractor has not made, and in rendering Services, neither Contractor nor any of its affiliates or subcontractors shall be deemed to make, any representation or warranty of any nature whatsoever, whether express, implied, statutory or other, and Contractor expressly disclaims all such representations or warranties, including any implied warranty of merchantability, fitness for a particular purpose, title or non-infringement, that the Services will operate in an uninterrupted fashion. No oral or written specification, advice, service description, quality characterization or other information or statement given or made outside of this Agreement by Contractor or any of its affiliates, employees, agents, subcontractors, licensors or suppliers shall create a representation or warranty or expand or otherwise affect the express warranties, if any, set out in this Agreement.
9) LIMITATIONS ON LIABILITY.
(a) Customer agrees that Contractor, each of Contractor’s affiliates, contractors, subcontractor, licensors and suppliers, each stockholder, director, officer, employee, agent or representative of any of the foregoing, and each successor and assignee of the any of the foregoing (collectively “Contractor Parties”) shall not be liable to Customer, or any other person for any indirect, incidental, consequential, reliance, special, exemplary or punitive damages or for any other damages (however denominated), including those for or based on or measured by harm to business, lost revenues, lost savings, loss of or on any investment, lost profits, loss of opportunity, loss of use, loss of data, loss of goodwill, costs of replacement goods or services, property damage, losses or liabilities that are a consequence of destruction or alteration of data, breaches of security, claims of users or other indirect or consequential loss, harm or damages (“Damages”) arising out of or relating to this Agreement.
(b) Contractor shall have no liability to Customer or any other person for any Damages of any kind that arise out of or relate to any failure by Customer to follow Contractor’s recommendations relating to Contractor’s services.
(c) The aggregate liability of all Contractor Parties with respect to any claim or cause of action arising out of or related to this Agreement or the Services shall not exceed an amount equal to the Fees paid by Customer to Contractor for the annual period during which the claim or cause of action arose.
(d) Customer agrees that regardless of any statute or other law to the contrary, Customer must present any claim or cause of action arising out of or related to this Agreement or the Services to Contractor in writing within one (1) year after such claim or cause of action arose, or such claim or cause of action shall be forever barred and Customer shall be deemed to have waived that claim or cause of action.
(e) Each of the disclaimers and exclusions of and limitations on liability or damages contained in this Agreement shall independently apply regardless of (i) the form of action (including any action in contract or based on warranty, negligence, tort, strict liability or statute), (ii) any claim or finding that any breach of or default under this Agreement was total or fundamental, (iii) the type of damages, (iv) any claim or finding with respect to the adequacy, failure, purpose or sufficiency of any remedy provided for under this Agreement and (v) whether a person was informed or aware of, or otherwise could have anticipated the possibility of, such damages or liability.
(f) Customer understands and irrevocably accepts the limitations on liability contained in this section, and Customer acknowledges and agrees that but for such provisions, Contractor would not offer or provide the Services or would require Customer to pay additional Fees.
10) ASSIGNABILITY. Customer may not assign or delegate this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Contractor, which will not be unreasonably withheld. Contractor may freely assign this Agreement and may contract with subcontractors for the performance of any maintenance, repair or other services contemplated by this Agreement, including unaffiliated contractors. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, heirs, legal representatives and permitted assigns.
11) CONFIDENTIAL AND PROPRIETARY INFORMATION. Any and all confidential or proprietary information obtained from Contractor by Customer, in whatever form, shall be held in confidence by Customer and shall not be used by Customer for any purpose other than the performance of this Agreement. Customer’s confidentiality obligations will survive for a period of five years after termination of this Agreement, except that Customer’s confidentiality obligations with respect to Contractor’s trade secrets will survive indefinitely.
12) ENTIRE AGREEMENT. Customer understands and agrees that Contractor’s duties and obligations to provide Services arise solely and exclusively out of this Agreement and not otherwise. This Agreement, including the exhibits hereto, represent the entire agreement between the Parties and supersedes all prior and contemporaneous written or oral agreements and all other communications between the parties relating to the Services to be rendered hereunder. Any additions, deletions or modifications shall not be binding on either Party unless accepted and approved in writing by duly authorized representatives of both parties. In the event of any contradictory provisions between this Agreement and any purchase order or other documents issued by Contractor or by Customer in connection herewith, the terms set out in this Agreement shall prevail.
13) SEVERABILITY. In the event any one or more of the provisions of this Agreement is held to be unenforceable under applicable law, such unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if said unenforceable provision had not been contained in this Agreement.
14) NO THIRD-PARTY BENEFICIARIES. No other person is a third-party beneficiary of this Agreement. Customer shall not be a third-party beneficiary of any contract, agreement or arrangement between Contractor and any other party.
15) GOVERNING LAW AND VENUE. This Agreement and any disputes or claims arising out of this Agreement shall be governed in all respects by the laws of the Province of Ontario without regard to its choice of law provisions. Each Party agrees that any action or suit arising out of or relating to this Agreement shall be filed only in a court located in Ontario, Canada, and each Party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any such actions or suits.
16) COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and shall be effective as if an original.
17) EXHIBITS. All exhibits, including SOWs, to this Agreement are made part of this Agreement and incorporated by reference as if fully set out in this Agreement.
18) NOTICE. All notices under this Agreement shall be in writing and shall be deemed to be given when hand delivered, when transmitted by confirmed e-mail, 1 business day after being given to an overnight courier, or 3 business days after the day of mailing, when mailed by United States mail, certified mail, return receipt requested, postage prepaid. Notice to Customer shall be sent to Customer’s authorized contact person designated pursuant to this Agreement. Notice to Contractor shall be sent to the address set out above to the attention of Contractor’s President.
Customer and Contractor have executed the Agreement on the date set forth above.