APPENDIX A.1 – GENERAL TERMS AND CONDITIONS
This Appendix A.1 sets out the general terms and conditions that apply to all the Services provided by nGUVU to Customer. All capitalized terms not otherwise defined within this Agreement shall have the meaning ascribed to them in Appendix A.4.
In this Agreement:
1.1 Definitions. All capitalized terms not otherwise defined within this Agreement shall have the meaning ascribed to them in Appendix A.4.
1.2 Currency. Except as otherwise expressly provided in this Agreement, all amounts referred to in this Agreement and Order Forms, including the symbol “£”, are stated in British Pounds;
1.3 Order of Precedence. In the event of any inconsistencies between the provisions set forth in this Agreement (including its Appendices and Exhibits) and in any Order Form, the provisions of the Order Form shall prevail.
1.4 Standard Forms. Customer acknowledges and agrees that nothing in Customer purchase orders or any documents submitted or provided by Customer in connection with any Order Forms submitted herein shall be construed to modify, amend or supplement the terms of this Agreement, including any of its Appendices, Exhibits and Order Forms; and
1.5 Language. The Parties have requested that this Agreement and all documents related thereto be drafted in English. Les parties aux présentes ont exigé que le présent contrat, ainsi que tous les documents y afférents, soient rédigés en langue anglaise.
2. GENERAL Obligations
2.1 Customer Obligations
(a) Assistance and Information. Customer shall provide nGUVU with all necessary information and assistance that is necessary for the performance of nGUVU’s obligations hereunder or otherwise that is reasonably requested by nGUVU. In particular, Customer shall: (i) perform those tasks and assume those responsibilities and requirements specified in the applicable Order Form (collectively, the “Customer Responsibilities”); (ii) provide nGUVU with all necessary Customer Data and other information referred to in the applicable Order Form or that is otherwise necessary or reasonably requested by nGUVU; and (iii) ensure prompt and efficient co-operation of all its personnel who must assist nGUVU for the performance of the Services.
(b) Feedback. nGUVU shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services that Customer (including any of the Users) may, alone or jointly with nGUVU, propose or make during the term of this Agreement (collectively, “Feedback”). Customer hereby irrevocably (i) assigns all right, title and interest in and to the Feedback to nGUVU and (ii) waives in favour of nGUVU, its successors and assigns any and all moral rights that Customer has or may have in the Feedback in each jurisdiction throughout the world, to the fullest extent that such rights may be waived in each respective jurisdiction.
(c) Passwords. Customer is solely responsible (i) for maintaining the confidentiality of the Users’ user identifications and passwords that were provided by Customer (or by nGUVU at Customer’s request) to access and use the Services and (ii) for restricting/protecting access to Customer equipment (hardware and software) required to access and use the Services.
(d) Users. Customer is responsible for all use and misuse of the Services by the Users and those of its Affiliates of Customer or their breach of the terms of this Agreement and shall indemnify nGUVU for any damages, costs and expenses suffered as a result of such use, misuse or breach.
(e) Viruses and Security. Customer shall have, maintain and periodically update Malicious Code protection software and security for all of its systems and data. If Customer’s systems have persistent connections to any network where there is potential for unauthorized access, Customer acknowledges that the security and protection of such network and the data and applications on that network (including protections against unauthorized access) is solely and entirely Customer’s responsibility.
2.2 nGUVU’s Obligations
(a) Personnel. nGUVU will use its reasonable endeavors to minimize changes of nGUVU employees, subcontractors or agents who are engage or involved in providing the Services.
(b) Standard of Care. nGUVU shall perform the Professional Services and carry out its duties and obligations hereunder diligently, in good faith and in a professional and prudent manner, using qualified, professional and experienced staff and personnel, and in a manner, that is reasonably consistent with generally accepted industry practices and standards for similar services.
(c) Policies. In performing the Services, nGUVU and its employees shall comply with all applicable Customer policies as the same may be communicated to nGUVU from time to time in writing.
(d) Viruses and Security. nGUVU shall have, maintain and periodically update security software for all its systems, in compliance with industry standards.
Customer will not allow the Cloud Services to be accessed or used by anyone other than the Users and those of its Affiliates. Except as provided herein, Customer may not: (i) loan, rent, lease, transfer, convey, assign, sell, distribute or license the Cloud Services (or any part thereof); (ii) modify, combine and/or distribute the Cloud Services (or any part thereof) with any other software or code in a manner which would subject the Cloud Services to Open Source License Terms; (iii) sell information services to other parties through the use of the Cloud Services, whether in the form of a service bureau, reservation center, or other information processing entity; (iv) use the Cloud Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material (including but not limited to Customer Data and Customer Applications) in violation of third-party privacy rights; (v) use the Cloud Services to store or transmit Malicious Code; (vi) interfere with or disrupt the integrity or performance of the Cloud Services or third-party data contained therein; (vii) copy, frame or mirror any part or content of the Cloud Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (viii) reverse engineer, decompile or disassemble the Cloud Services or attempt to gain unauthorized access to the Cloud Services or their related systems or networks; or (ix) use or access the Cloud Services in order to build a competitive product or service, or copy any features, functions or graphics of the Cloud Services. nGUVU reserves all other rights not expressly granted to Customer hereunder.
4. INTELLECTUAL PROPERTY
4.1 nGUVU Property and Licenses.
(a) Ownership. Except as expressly set out in an Order Form, nGUVU (or its licensors, including Third Party Modules licensors, if applicable) retains any and all Intellectual Property Rights in and to: (i) the Services, including any enhancements, upgrades or other modifications to the Services; (ii) the Work Products; (iii) nGUVU IP; (iv) any updates, upgrades, revisions, modifications to or compilation constituted from any of the foregoing; (v) the Documentation relating to any of the foregoing; (vi) all nGUVU Trademarks (including the “nGUVU” and “nGAGEMENT” trademarks and logos); and (vii) all Intellectual Property Rights related to any of the foregoing. Customer will acquire no rights or licenses to any nGUVU property unless otherwise expressly provided in this Agreement.
(b) License – nGUVU IP. nGUVU hereby grants Customer a royalty-free, worldwide, non-exclusive, non-transferable (except as provided in Section 12.2 of this Appendix A.1) and non-sublicensable (except to the Users and Customer’s Affiliates and subcontractors) license to use any nGUVU IP that is included, embodied in or otherwise required to use the Work Products or the Services, solely in connection with the use by Customer, its Affiliates and the Users of the Services or the Work Products, as applicable, and not on a standalone basis.
(c) Residuals. Notwithstanding any provision herein to the contrary, nGUVU shall be entitled to use the ideas, concepts and techniques relevant to any Work Product produced as part of the Services hereunder that are retained in the memories of nGUVU’s personnel in other projects and products of nGUVU.
4.2 Customer Property and Authorization. nGUVU acknowledges and agrees that Customer owns all right, title, and interest in Customer Data Customer Applications and Customer Trademarks, including all Intellectual Property Rights related thereto. Customer authorizes nGUVU to use, copy, reproduce and process Customer Data, Customer Applications and Customer Trademarks for the purposes of, and only to the extent necessary for, the provision of the Services.
5. FEES; TAXES
5.1 Fees. In consideration for the Services, Customer shall pay nGUVU the fees set out in the applicable Order Form(s) (collectively, the “Fees”). nGUVU may charge additional Fees and Expenses for the Services should the work scheduled be postponed or delayed for reasons that are attributable to Customer; provided that nGUVU shall use commercially reasonable efforts to mitigate the monetary effect of any postponement or delay.
5.2 Expenses. Customer shall reimburse nGUVU for all reasonable expenses, including travel and living expenses, incurred by nGUVU (or its subcontractors) in connection with the provision of Services (collectively, the “Expenses”); provided, however, that such Expenses are agreed upon between the Parties in the applicable Order Form(s) or have been pre-authorized in writing by Customer. All Expenses are due within 30 days of the date of invoice.
5.3 Payment Terms. Payment terms are set out in the Order Forms. All payments must be made in the full amount, free of any deductions or withholdings and without exercising any right of set-off. Should Customer have or claim to have any recourse or claim of action, of whatever nature, against nGUVU, pursuant to a specific Order Form, Customer hereby renounces to the right to set-off the amount of such claim against sums that it may owe to nGUVU according to another specific Order Form, being understood that each Order Form shall be independent from each other.
5.4 Suspension of Service. If any amount owing by Customer under this Agreement is overdue, nGUVU may, without limiting nGUVU's other rights and remedies, suspend the Services to Customer until such amounts are paid in full.
5.5 Taxes. Unless expressly stated in an Order Form, the fees and costs set forth in this Agreement do not include any applicable sales, use, value added, property, excise or any other taxes or duties of any nature whatsoever. nGUVU will invoice Customer for any applicable taxes in relation to the Order Forms.
6. TERM; TERMINATION
6.1 Term. This Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with the terms and conditions set forth herein. The provision of Cloud Services will commence on the Activation Date. The provision of Professional Services will commence as set out in the applicable Appendix or Order Form.
6.2 Termination. Unless otherwise set out in an Order Form, Customer may terminate this Agreement or any Appendix or Order Form subject to a 30-day prior written notice sent to nGUVU. In addition, each Party may terminate this Agreement or any Appendix or any Order Form at any time: (i) if the other Party fails to perform any of its obligations under the applicable Appendix or the applicable Order Form(s), as applicable, and such failure is not remedied within 15 days from written notice thereof having been given to such defaulting Party; or (ii) upon written notice to the other Party, if such other Party takes or is required by any person with proper authority to take, any of the following actions: (a) an assignment, composition or similar act for the benefit of creditors; (b) an attachment or receiving of assets; (c) the filing of a petition for bankruptcy, insolvency or relief of debtors or the institution of any proceedings relating to bankruptcy, insolvency or relief of debtors; (d) committing or threatening to commit any act of bankruptcy; or (e) a winding-up, liquidation or dissolution of the business pursuant to an order of a court of competent jurisdiction.
6.3 Automatic Termination. This Agreement shall automatically terminate 2 years after the completion, expiry or termination, as applicable, of the last Order Form.
6.4 Recourse. The termination of this Agreement, any Appendix or Order Form for any reason whatsoever will in no way affect either Party’s rights and recourse against the other Party, at law or in equity, for damages for failure to discharge an obligation under this Agreement, such Appendix or Order Form.
6.5 Effect of Termination. Upon termination of this Agreement, the Appendix or Order Form: (i) nGUVU shall be entitled to the payment of any Fees accrued as of the date of termination hereof or thereof; and (ii) the Recipient (as defined below) shall return immediately to the Discloser (as defined below) all Confidential Information and all copies thereof in any form whatsoever under the possession or control of the Recipient that relate to this Agreement or the terminated Appendix or Order Form(s), as applicable, or destroy same as directed by the Discloser.
6.6 Surviving Provisions. Sections 4, 6.5, 6.6 and 8 to 12 of this Appendix A.1 shall survive the termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 nGUVU to Customer. nGUVU represents and warrants to Customer that: (i) it is a corporation, duly incorporated, organized and validly existing under the laws of Canada; (ii) it has the full right, power and authority to enter into this Agreement; (iii) it has all necessary rights to provide the Cloud Services; (iv) to its reasonable knowledge, the Cloud Services do not violate any third party Intellectual Property Right; (v) nGUVU, its employees and subcontractors have the necessary knowledge, experience, and skills to perform the Services; (vi) nGUVU has and/or will acquire and maintain all license and permits required of them in order to perform the Services; and (vii) the Services will be performed in a competent and professional manner.
7.2 Customer to nGUVU. Customer represents and warrants to nGUVU that: (i) it has the full right, power and authority to enter into this Agreement; and (ii) it has all necessary rights to Customer Data, Customer Applications and Customer Trademarks to grant nGUVU the authorization granted at Section 4.2 and to its reasonable knowledge, neither of such authorization breaches or violates any third party Intellectual Property Right.
8. WARRANTY DISCLAIMER
EXCEPT AS SET OUT IN SECTION 7.1, nGUVU expressly disclaims on its behalf and on behalf of its Affiliates, AND THEIR RESPECTIVE shareholders, officers, directors, employees, AGENTS, SUPPLIERS, subcontractors AND LICENSORS all representations, warranties and conditions express, legal or implied not contained herein, including representations, warranties and conditions of MERCHANTABILITY, performance, quality, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY. Among others, nGUVU does not represent or warranty and expressly disclaims that: (i) THE SERVICES OR THE WORK PRODUCTS WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE OPERATION OF THE SERVICES OR THE WORK PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED OR, THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; (III) ALL PROGRAMMING OR SERVICE ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. nGUVU SHALL NOT BE RESPONSIBLE FOR AND DISCLAIMS ANY LIABILITY ASSOCIATED WITH ANY FAILURE TO PROCESS CREDIT CARD TRANSACTIONS.
9. LIMITATION OF LIABILITY
9.1 Exclusion of Certain Damages. nGUVU shall not be liable and assumes no responsibility for any loss or damages arising from or in connection with (i) the modification or alteration in any manner by Customer of any part of the Cloud Services; (ii) the use of any Customer Data, Customer Applications or other software, products or services not developed or provided by nGUVU; (iii) failure of Customer to meet its obligations hereunder to provide in a timely manner any information, access or assistance to nGUVU as required hereunder or as nGUVU requests in order to meet its obligations; or (iv) the access or use by Customer or the Users of any third party websites or resources that may be accessed from the Cloud Services platform through a link or otherwise.
9.2 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUPPLIERS OR LICENSORS: (I) BE LIABLE FOR ANY INDIRECT, EXTRAORDINARY, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF RELATING TO THIS AGREEMENT (INCLUDING ALL OF ITS APPENDICES AND EXHIBITS, AND ALL RELATED ORDER FORMS), OR CAUSED BY ANY SERVICES, OR THE USE, MISUSE OR INABILITY TO USE THE SERVICES, THE WORK PRODUCTS OR THE DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY.
9.3 Amount Limitation. THE TOTAL LIABILITY OF EITHER PARTY FOR CLAIMS BY THE OTHER PARTY OR ANY OTHER PERSON ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO nGUVU DURING THE 12-MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES.
9.4 Infringement Limitation. If all or any portion of a Service or a Work Product is, in nGUVU’s opinion, likely to or otherwise does become the subject of a claim for infringement of any Intellectual Property Rights, nGUVU may, at its option and its sole cost and expense, either: (i) procure in favor of Customer the right to use the same as contemplated herein, (ii) modify the same to become non‑infringing provided that any such modification does not materially impair the ability of the Service or the Work Product, as applicable, or any part thereof to conform to and perform in accordance with the specifications therefor or the intended use of the Service or the Work Product, as applicable; or (iii) replace the infringing part of the Service or the Work Product, as applicable, with compatible, feature and functionally equivalent, and non-infringing products or documentation, as the case may be. If in nGUVU’s reasonable opinion it is not commercially reasonable for it to comply with any of (i), (ii) or (iii) above, it may upon written notice to Customer, terminate the applicable Appendix or this Agreement. The remedies set forth in this Section 9.4 are Customer’s sole remedy in the event of a potential infringement or a claim for infringement in connection with a Service or a Work Product.
9.5 Allocation of Risk. Customer acknowledges that nGUVU pricing reflects the allocation of risk under this Agreement and the limitation of liability specified herein.
10.1 Confidential Information. During the Term of this Agreement, each of the Parties (the “Discloser”) may provide the other Party (the “Recipient”) with (i) non-public, confidential or proprietary information, including any information relating to the existence or content of this Agreement, the Services, the Documentation, Customer Data, the Work Products, and a Party’s business, products, services, activities, operations, customers and prospects, Intellectual Property (including nGUVU IP), technology, know-how, and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential (collectively, “Confidential Information”).
10.2 Obligation of Confidentiality. The Recipient must hold all Confidential Information in the strictest confidence and use it (and copy it) only for the purpose of carrying out its obligations under this Agreement. The Recipient shall not, without the Discloser’s prior written consent, disclose any Confidential Information to any person or entity other than in connection with this Agreement. Recipient agrees that it will not acquire any right, title or interest in or to the Confidential Information.
10.3 Prior Non-Disclosure Agreement. If the Parties have entered into a non-disclosure agreement prior to the Effective Date, such agreement is hereby terminated and replaced in its entirety by the terms of this Section 10.
10.4 Injunctive Relief. Upon any breach of confidentiality or any threat thereof, Discloser shall, in addition to whatever remedies it might have, be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.
10.5 Legal Disclosure. In the event that Recipient becomes legally compelled to disclose any portion of the Discloser’s Confidential Information, Recipient shall notify Discloser and shall collaborate with same in good faith and on a reasonable basis in order to prevent or limit the disclosure or obtain any appropriate protective order or measure. In the event that disclosure may not be prevented, Recipient shall disclose only that portion of the Confidential Information which is legally required (as reasonably determined by Recipient) and exercise reasonable efforts to obtain reliable assurance that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.
10.6 Assistance. Each Party agrees that it shall notify the other Party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other Party has occurred or is likely to occur.
Each Party agrees that, during the term of this Agreement and for a period of 12 months after the termination of this Agreement (or the last Order Form, whichever occurs last), it shall not, directly or indirectly, without the prior written consent of the other Party, hire any employee of the other Party or solicit, induce or attempt to induce any person who is an employee of the other Party or was an employee during the 6-month period immediately preceding such solicitation, to terminate his or her employment with the other Party. General advertising performed by one Party and not specifically directed at employees of the other Party shall not be deemed a violation of this Section 11. In the event a Party breaches this Section 11, the breaching Party shall be liable to the aggrieved Party for an amount equal to 100% of the annual base compensation of the relevant personnel in his/her new position. Although such payment shall be the aggrieved Party’s exclusive means of monetary recovery from the breaching Party for breach of this Section 11, such a breach shall be considered a material breach of this Agreement and the aggrieved Party’s remedies of termination, injunction and damages shall be cumulative.
12. General Provisions
12.1 General. This Agreement (including its Cover Page, all Appendices, Exhibits and all related Order Forms which form and integral part thereof) constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement is an agreement between separate legal entities and neither Party is the agent or employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party can assign this Agreement, or any rights or obligations contemplated under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. nGUVU may subcontract any of or all of its obligations under this Agreement to any third party. If any provision of this Agreement is deemed to be invalid or unenforceable, (i) this Agreement shall be considered divisible as to such provision and such provision shall be inoperative and (ii) the remaining provisions of this Agreement shall remain valid and binding and of like effect as though such provision was not included. The failure by Customer at any time or times to require performance of any provisions hereof shall in no way affect the right of nGUVU, at a later time, to enforce the same.
12.2 Publicity. Except in any proceeding to enforce the provisions of this Agreement or as otherwise required by law, neither Party shall publicize or disclose to any third party the existence or provisions of this Agreement or any of the fees, terms or conditions herein, without the prior written consent of the other Party. Notwithstanding the foregoing and Section 11, nGUVU may mention, in its corporate brochures, marketing material, press releases and website, that Customer is a customer of nGUVU and uses the Cloud Services. In that regard, Customer agrees that nGUVU may use the corporate names and logos of Customer, subject to applicable Customer logo and similar policies.
12.3 Dispute Resolution. Any disputes arising out of, or in any manner relating to this Agreement, will be subject to the following dispute resolution procedure: (i) if the Customer Project Manager and the nGUVU Project Manager cannot resolve a dispute in good faith within 15 days, such dispute will be documented in writing and identical copies will be submitted for resolution to each Parties’ senior management team; and (ii) if the Executive sponsors cannot resolve the dispute in good faith within 30 calendar days upon receipt of notice of such dispute, then the Parties shall be entitled to submit such dispute to the competent courts in accordance with Section 12.4 below.
12.4 Governing Law; Jurisdiction. This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which has not been resolved in accordance with the terms of Section 12.3 above, shall be submitted to the exclusive jurisdiction of the courts of the Province of Québec, Canada (district of Montréal). The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. The Parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
12.5 Notice. All notices, demands or other communications shall be in writing and delivered personally or sent by prepaid registered post or by fax as set out on the Cover Page of this Agreement, or at such other address as a Party may by notice advise. Any such notice, demand or communication shall be deemed to have been duly served if delivered personally or made by fax, immediately (provided that if made by fax, a transmission report indicating that the communication has been sent in full shall have been received by the sender) or if sent by prepaid post 5 days after posting.