Terms of Use
(a) “Affiliate” in relation to a Party means any entity
which, either directly or indirectly “controls”,
“is controlled by”, or “is under common control” with, the Party
specified, and for the purposes of this definition, “control” of an entity means that the specified Party,
directly or indirectly, has the power to direct or cause the direction of the
management and policies of that entity through the ownership of voting securities,
by contract or otherwise;
(b) “AggregateForm” includes information constituting or descriptive of
patterns, statistics, benchmarking analysis, or other descriptive or related
data which do not disclose to third parties the identity of any particular
Customer or Customer User;
(c) “Agreement” means this Software as a Service
Agreement and all Fee Schedules, the latter of which are incorporated herein by
reference;
(d) “Business Day”
means Monday through Friday, excluding any days that are statutory holidays
under the laws of the Province of Ontario or the laws of Canada applicable
therein;
(e) “Confidential
Information” means all know-how, trade or other secrets, and any other
information or data, directly or indirectly, disclosed by one Party and/or its
Affiliates (the “Disclosing Party”),
to the other Party (the “Receiving Party”)
under this Agreement, (whether verbal, written, or existing, stored, or
communicated in any form or medium), including without limitation, technical
information and data, equipment, documents, reports, training tools, analyses,
recommendations, tests, financial data, correspondence, communications,
pricing, products, design and function specifications, technologies, computer
programs, software, systems, features, techniques, methodologies, processes,
manuals, inventions (whether or not patentable), algorithms, configurations,
business information, together with copies thereof, and all information and
data derived therefrom, except to the extent such knowledge, information, or
data: (i) is or becomes publicly available through no
breach of this Agreement or wrongful act of the Receiving Party or their
Personnel; (ii) is known to the Receiving Party without restriction prior to
receiving such information from the Disclosing Party; (iii) is required to be
disclosed as a matter of legal compulsion, provided, however, that the
Receiving Party will provide prior written notice to Disclosing Party to allow
it to take such actions to protect its interests; (iv) is lawfully disclosed to
a Party by a third party without restriction; or (v) is independently developed
by the Receiving Party without use of Confidential Information of the
Disclosing Party as established by documentary evidence provided by the
Receiving Party;
(f) “Customer”
means the Person entering into this Agreement with TLSI, including, without
limitation, the Person named in any applicable Purchase Order;
(g) “Customer Data” means the information
collected, received, transmitted, uploaded, stored, and/or processed by TLSI
from Customer and Customer Users in the course of providing the Services to
Customer and Customer Users;
(h) “Customer Users” means Customer Personnel
who are authorized by Customer to use the Services in accordance with the terms
applicable to Customer Users (including with respect to the permitted number
and identity of Customer Users). The permitted number of Customer Users shall
be as set out on our website or on the website of any third party online
payment processing service we use at the time Customer pays its Fees (or as
indicated in any transaction record of TLSI or its third party online payment
processer related to the Fee payment)or and on any applicable Fee Schedule;
(i) “Effective Date” means the earlier of: (i) the date upon which Customer confirms the terms of a Fee
Schedule associated with this Agreement; or (ii) the date upon which Customer or any Customer User or any
representative of TLSI or J.D. Creaghan Group Inc. acting on behalf of a
Customer, first accesses or uses <http://dashboard.totalleadersolutions.com>or any of the Services;
(j) “Fees” means the fees payable by Customer
for the Services in accordance with this Agreement, as specified at the time of
payment on our website or on the website of any third party online payment
processing service we use;
(k) “Fee Schedule” means any writing between
TLSI or J.D. Creaghan Group Inc. and Customer, to the extant that it relates to
the Services to be delivered to Customer or sets out any other terms or
conditions associated with the Services which are not expressly set out herein,
as the same may be updated or amended by additional Fee Schedules from time to
time. For the purposes of this
definition, but without in any way limiting the generality of the foregoing, accessing
or using<http://dashboard.totalleadersolutions.com> or any of the Services, including, without limitation,
through a representative of TLSI or J.D. Creaghan Group Inc. acting on behalf
of Customer, shall be deemed for all purposes to be confirmation by Customer of
all Fee Schedules delivered to date to the extent that they relate to Services.
The Fee Schedule(s) shall, to the extent they relate to Services, be subject in
all respects to the terms and conditions of this Agreement, including with
respect to Fee increases and amendments, and, in the event of a conflict
between the terms of conditions of a Fee Schedule and the terms and conditions
of this Agreement, this Agreement shall prevail, except to extent that any
terms or conditions set out in a Fee Schedule are expressly stated to amend
this Agreement.
(l) “Parties”
means TLSI and Customer, or any respective Affiliates, as the case may be, and
“Party” means any one of them;
(m) “Person”includes an individual, a partnership, a corporation, a company, a
trust, a joint venture, an unincorporated organization, a government or any
department or agency thereof and the heirs, executors, administrators or other
legal representatives of an individual;
(n) “Personnel” includes directors,
officers, employees, agents, consultants, representatives and other individuals
employed, engaged or retained by Customer or TLSI, as the case may be;
(o) “Services” means access to and use of
the <http://dashboard.totalleadersolutions.com>website and the assessment and coaching tools
available for use on that website during the Term, including, without
limitation, all written materials to which access is provided as part of the
Leader LibraryTM;
(p) “Term” has the meaning given to it in
section 5; and
(q) “TLSI” means TotalLeaderSolutions Inc., the corporation with which you, the Customer, are entering into
this Agreement.
2.SERVICES
2.1 Subscription to and Provision of Services.Subject to this
Agreement, Customer subscribes to the Services and TLSI agrees to provide
Customer and Customer Users with the Services.
2.2 Changes in Services.TLSI reserves the right, in its sole
discretion, to modify, discontinue, substitute, delete, or restrict any aspect
or feature of the Services with notice to Customer.
2.3 Control of Services.TLSI has complete control of the Services and
will manage, direct, perform, coordinate and supervise the Services. Customer acknowledges and agrees that TLSI
may in its sole discretion subcontract the Services or any part thereof without
the prior written consent of Customer.
3.OWNERSHIP OF
PROPERTY
3.1 Services.All Services and all materials provided or made
accessible as part of the Services and all trademarks, patents, copyrights,
trade secrets and other intellectual property and similar rights in or related
thereto, are and will remain the exclusive property of TLSI and/or its
Affiliates (“TLSI Property”). Customer shall have no right, title,
ownership, intellectual property, and/or other interest of any kind in and to TLSI
Property, howsoever arising, including any intellectual property created or
derived as a result of this Agreement.
3.2 Rights Granted.Upon Customer,
any Customer User, or any representative of TLSI or J.D. Creaghan Group Inc. acting
on behalf of Customer accessing the <http://dashboard.totalleadersolutions.com> website, Customer has the non-exclusive,
non-assignable, royalty free, limited right to use the Services solely for
Customer’s internal business operations and subject to the terms and conditions
of this Agreement and any applicable Fee Schedule. Subject to any limitations
contained in this Agreement and in any applicable Fee Schedule, including,
without limitation, limitations as to the permitted number of Customer Users, Customer
may allow Customer Users to use the Services for this purpose and Customer is
responsible for Customer Users’ compliance with this Agreement. Customer agrees
that neither Customer nor any Customer Users willreproduce, modify, store in a
retrieval system or retransmitany of the
Services or any document or other content generated through the use of the
Services,
in any form or by any means, electronic, mechanical or otherwise, without prior written permission of TLSI. Notwithstanding the foregoing, Customer and
Customer Users may print hard copies of any reports generated using the
Services, solely to the extent necessary for Customer’s or Customer User to use
of the Services for its internal business purposes. Any hard copies must
include TLSI’s copyright notice, must be accurately labelled and must not be
edited to present any information generated using the Services in a misleading
manner.Customer acknowledges that TLSI has no delivery obligation and will
not ship copies of software products owned or distributed by TLSI to which TLSI
grants Customer access as part of the Services. Customer agrees that it does
not acquire under this Agreement any license to use software products owned or
distributed by TLSI specified in the Fee Schedules in excess of the scope
and/or duration of the Services. Upon the end of this Agreement or the
Services, Customer’s right to access or use the Services shall terminate.
3.3 Ownership of Customer Data. All Customer Data shall, as
between Customer and TLSI, remain the property of Customer. Customer hereby
grants TLSI and TLSI Personnel during the Term of this Agreement, a personal,
non-exclusive, non-transferable, royalty-free license to use Customer Data for
the purpose of providing the Services to Customer and Customer Users. Notwithstanding the foregoing, during the
Term and following the expiration or early termination of this Agreement,
Customer grants TLSI a perpetual, non-exclusive, non-transferable, royalty-free
license: (i) to use Customer Data for internal
research and/or benchmarking purposes; and (ii) to use, share, copy, transmit,
distribute, and share Customer Data, in Aggregate Form only, with other persons
or entities. Customer acknowledges that TLSI or its representatives may at any
time log in to any User account, as the Customer’s account administrator, and
view and use all Customer Data, Confidential Information and other information
of any nature that is viewable and usable by the account administrator for any
purpose contemplated by this Agreement for the purpose of exercising TLSI’s
right and licence described above, as well as confirming Customer’s and
Customer’s Users’ compliance with the terms and conditions of this Agreement.
3.4 Reservation of Rights.All rights not expressly
granted in writing within this Agreement shall be reserved to TLSI or to
Customer, as the case may be. In addition to any other rights afforded to TLSI
under this Agreement, TLSI reserves the right to remove or disable access to the
Services if Customer or any Customer User violates the restrictions in section
3.5 below. TLSI shall have no liability to Customer in the event that TLSI
takes such action. Customer agrees to defend and indemnify TLSI against any
claim arising out of a violation of Customer’s obligations in section 3.5 below.
3.5 Restrictions. Customer agrees that except as
expressly provided herein, no part of the Services may be copied, reproduced,
distributed, republished, downloaded, displayed, posted or transmitted in any
form or by any means, including but not limited to electronic, mechanical,
photocopying, recording, or other means. Customer also agrees that it may not:
(i) remove or modify any TLSI markings or any notice
of TLSI’s proprietary rights; (ii) make the Services available in any manner to
any third party for use in the third party’s business operations; (iii) modify,
make derivative works of, disassemble, reverse compile, or reverse engineer any
part of the Services (the foregoing prohibition includes but is not limited to
review of data structures or similar materials produced by programs), or access
or use the Services in order to build or support, and/or assist a third party
in building or supporting, products or services competitive to TLSI; (iv)
disclose results of any Services or program benchmark tests without TLSI’s
prior written consent; (v) license, sell, rent, lease, transfer, assign,
distribute, display, host, outsource, disclose, permit timesharing or service bureau
use, or otherwise commercially exploit or make the Services or related materials
available, to any third party; or (vi) allow the aggregate number of individual
Personnel who use the Services over the course of the Term to exceed the permitted
number of Customer Users, other than, as expressly permitted under this Agreement.
Customer agrees not to use or permit use of the Services, including by
uploading, emailing, posting, publishing or otherwise transmitting any
material, for any purpose that may constitute an infringement of intellectual
property or other proprietary rights, or otherwise violate any applicable laws,
ordinances or regulations.
3.6 Audit Right. TLSI shall have the right, during normal business hours
and without prior notice to Customer, to inspect or audit, or cause to be
inspected or audited all records, documents or other materials related to this
Agreement and to Customer’s and Customer’s Users’ use of the Services,
including the right, without limitation, to have a person attend at the offices
of Customer to examine and make copies of all such records, documents and other
materials.
4.FEES AND PAYMENT
4.1 Services Fees.The Fees payable for the Services shall be as specified
at the time of payment on our website or on the website of any third party
online payment processing service we use, provided that, in the event of a
discrepancy between our website and the website of a third party online payment
processing service, the Fees listed on our website shall prevail. Customer agrees to pay TLSI for Services in
advance, using our website or any third party online payment processing service
we specify on our website from time to time.
4.2 Currency. Unless
otherwise specified by TLSI, all Fees payable by Customer to TLSI are in
Canadian dollars.
4.3 Taxes.Fees are exclusive of all applicable taxes. If TLSI is required to pay any federal,
provincial or local retail sales, use, goods and services, excise, value-added,
withholding, or similar taxes or like duties based on the Services provided
under this Agreement, then all such taxes shall be added to Customers Fees at
the time of payment and paid by Customer to TLSI.
4.4Rate Adjustment.TLSI reserves the
right, in its sole discretion, to increase the Fees upon any renewal or
extension of this Agreement or any successor agreement.
5.TERM AND TERMINATION.
5.1 Term.This Agreement shall be effective as of the Effective Date, and shall
continue for an initial term of one (1) year (the “Term”)
unless otherwise terminated as set forth in this Agreement.
5.2 Successor Agreements. TLSI may
require, as a condition of TLSI entering into any successor agreement(s) for
Services after expiration of the Term, that Customer and/or Customer Users
enter into one or more new agreements prescribed by TLSI, the terms of which
may differ materially from this Agreement and which, without limiting the
generality of the foregoing, may provide for increased or additional Fees or
other payments by Customer to TLSI or its Affiliates.
5.3 Agreement Breach. If either Party breaches a material term of this Agreement
and fails to correct the breach within fifteen (15) days of written notification
of the breach, then the breaching party is in default and the non-breaching
party may terminate the Services under which the breach occurred. The non-breaching
party may agree in its sole discretion to extend the fifteen (15) day period
for so long as the breaching party continues reasonable efforts to cure the
breach. Customer agrees that while it is in default under this
Agreement, neither Customer nor any Customer Users may use the Services
or receive any Related Services.
5.4 Suspension of Services. TLSI may immediately suspend
Customer’s and any Customer User’s password, account, and access to or use of
the Services if Customer or any Customer User violates any provision of this Agreement.
TLSI may terminate the Services if such a violation is not cured within fifteen
(15) days after TLSI’s initial notice thereof.
5.5 Insolvency/Bankruptcy.Notwithstanding any other provision of this Agreement, either Party may
terminate this Agreement, immediately upon written notice to the other Party,
if the other Party is adjudged bankrupt, makes, attempts to make or gives
notice of intention to make a proposal, arrangement or any general assignment
for the benefit of creditors or seeks or threatens to seek to obtain the
benefit of any insolvency, liquidation or arrangement laws, or if a receiver,
receiver-manager, trustee, liquidator or similar person is appointed in respect
of the whole or any part of its property, whether real or personal.
5.6 Obligations on Termination.Upon termination of this
Agreement: (i) any amounts payable by Customer to
TLSI under this Agreement shall become immediately due and payable and Customer
shall immediately pay all such amounts to TLSI; (ii) TLSI shall, if termination
was due to TLSI’s default, refund the Fees, on a prorated basis, for the unused
balance of the Term, provided, however, that no refund shall be payable by TLSI
if termination is due to any cause other than TLSI’s default.
6.CONFIDENTIAL
INFORMATION
6.1 Non-Disclosure / Non-Use. Each Party acknowledges and agrees that all Confidential
Information disclosed is: (i) confidential and proprietary to the Disclosing
Party, and that as between the Parties, all ownership, license, intellectual
property, and other rights to Confidential Information disclosed hereunder
shall remain with the Disclosing Party, or (ii) personal information. During the Term of this Agreement and
thereafter, the Receiving Party shall: (i) keep and maintain all Confidential
Information of the Disclosing Party in the strictest confidence and in
compliance with any applicable laws; (ii) disclose Confidential Information
received hereunder only to such Personnel who have a direct need to know such
Confidential Information and who are bound by written confidentiality
obligations at least as restrictive as those contained herein; (iii) not use
the Disclosing Party’s Confidential Information for the Receiving Party’s own
benefit or that of any third party or for any purpose other than lawfully
exercising its rights and/or performing its obligations under this Agreement;
(iv) exercise the same degree of care to protect the confidentiality of the
Disclosing Party’s Confidential Information which is at least equivalent to
that which the Receiving Party uses to protect its own Confidential
Information; and (v) take all reasonable steps to protect the Disclosing
Party’s Confidential Information from any unauthorized use, duplication, and/or
disclosure.
6.2 Injunctive Relief. The Receiving
Party acknowledges and agrees that any unauthorized use or disclosure of
Confidential Information of the Disclosing Party might cause irreparable harm
and might result in significant damages to the Disclosing Party or its
Affiliates, which harm and/or damages might be difficult to ascertain, and in
the event of such breach or threatened breach by the Receiving Party, the
Disclosing Party, in addition to other remedies which may be available in law,
equity or otherwise, has the right to equitable relief, including injunctive
relief, against the Receiving Party, without the necessity of proving actual
damages or showing irreparable harm.
6.3 Return of Confidential Information. Subject to any license granted to TLSI to make
and use copies of Customer Data under section 3.3 hereof and subject to the
terms of any Privacy Policy of TLSI in force from time to time, upon expiration
or earlier termination of this Agreement, or upon the Disclosing Party’s
earlier request, Receiving Party shall promptly return to the Disclosing Party
(or, at the Disclosing Party’s written direction, destroy) all the Disclosing
Party’s Confidential Information and all copies, partial copies, revisions or
modifications thereof, in Receiving Party’s possession, in whatever medium.
6.4 Personal Information. Provided TLSI complies in all material
respects with the terms of TLSI’s Privacy Policy, Customer shall indemnify,
defend and hold TLSI and its directors, officers, employees, franchisees,
licensees, contractors and agents (the “TLSI Indemnitees”)
harmless from and against any third party claims against any of the TLSI
Indemnitees resulting from or arising in any way out of or in connection with
the collection, disclosure and use of personal information (as defined in
PIPEDA and any other applicable privacy legislation) related to the Customer or
its business.
7.CUSTOMER
RESPONSIBILITIES.
In order to enable TLSI
to perform its obligations under this Agreement, Customer agrees as follows:
(i) Customer will
designate a contact who shall be authorized to make
decisions related to the use of Services;
(ii) Customer shall
fully cooperate with TLSI by making available Customer information, materials,
resources and Personnel as reasonably required by TLSI to perform the Services;
(iii) Customer shall
keep user ID(s) and password(s) issued by TLSI confidential and shall not
disclose such user ID(s) or password(s) to any third party;
(iv) Customershall ensure that any user
ID(s) and password(s) issued to Customer Users are not disclosed to any third
parties and agrees that it shall be liable to TLSI for any breach of this
requirement by any Customer User(s);
(v) Customer will
perform and complete any other obligations as specified within this Agreement
or any acceptable use policy that TLSI notifies Customer of (which TLSI hereby
reserves the right to incorporate into this Agreement by reference by posting
on <http://dashboard.totalleadersolutions.com>or such other URL designated by TLSI); and
(vi)
Customeragrees to make every reasonable effort to prevent unauthorized third
parties from accessing the Services.
8.DISCLAIMER AND
LIMITATION OF LIABILITY
8.1 Disclaimer.Customer expressly acknowledges and agrees that the
Services and any Related Services are intended to assist in mentoring and coaching
individuals, but that there is no guarantee that Customer or Customer Users or
any employees or contractors of Customer will achieve any particular results by
using the Services. Customer acknowledges that the Services are intended to be
used in conjunction with in-person coaching and mentoring and as part only of a
broader set of Customer policies and practices regarding development of its
employees and/or contractors. Customer agrees that it will not use or make
reference to the Services in connection with the termination of any employees
and/or contractors or in connection with any promotions or denials of
promotion. Customer agrees to defend, indemnify and hold harmless the TLSI
Indemnitees against any claims by Customer Users or other employees or
contractors of Customer or its Affiliates arising in any way out of or in
connection with the Services. Customer
expressly acknowledges and agrees that the Services are provided on an “as is”
basis, and to the maximum extent permitted by applicable law, TLSI disclaims
any and all warranties of any kind, express or implied, including warranties of
fitness for a particular purpose, merchantability, and non-infringement. TLSI
further disclaims and makes no representations or warranties that the Services
will be accurate, complete, suitable for the purposes intended, uninterrupted
or without error.
8.2 Limitation of Liability. TLSI’s
total cumulative and aggregate liability for damages arising from breaches of
this Agreement is an award for direct, provable damages that shall not under
any circumstances exceed the amount of fees paid to TLSI under this Agreement
during the twelve (12) month period immediately preceding the date of the event
that is the subject matter of the claim. In no event shall TLSI be liable for
any indirect, incidental, punitive, exemplary or consequential damages,
including but not limited to, loss of use, lost profits (past and future), lost
revenue, loss of data, failure to realize expected savings, or lost opportunity
arising in connection with this Agreement even if advised of the possibility
thereof. Customer acknowledges and
agrees that TLSI is not liable for the disclosure of personal information as a result
of Customer’s use of the Services, including use by Customer Users.
8.3Indemnification.Each Party shall
indemnify, defend and hold harmless the other Party and its respective
Personnel, their heirs, executors, personal and legal representatives,
administrators, successors and assigns, from and against any and all claims for
bodily injury (including death) and/or for damage to or destruction of property
caused by the negligence, intentional misconduct, or other tortious act or
omission of the other Party or its respective Personnel.
9.GENERAL
9.1 Disclosure of Terms and Conditions. Customer shall not disclose any of the terms
of this Agreement to any third party without the prior written consent of TLSI,
except where required by applicable law.
9.2 Force Majeure. Any delay or
failure in the performance of any duties or obligations of either Party (except
for payment obligations) will not be considered a breach of this Agreement if
such delay or failure is caused by an act of God, or other event, omission or
condition not reasonably within the Party’s control, including without
limitation, any mechanical, electronic, technical, or communications failure,
shortage of material, war, riot, terrorist act, embargo, or government act
(including any law or regulation).
9.3 Independent Contractors.The relationship between the Parties
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to create a joint venture,
partnership, master-servant, or agency relationship between the Parties.
Neither Party has any right, power or authority to create any obligation or
responsibility, express or implied, on behalf of the other.
9.4 Waiver. No act or failure to act or
delay in enforcement of any right by either Party constitutes a waiver of any
right hereunder, and any such act, failure to act or delay does not constitute
approval or acquiescence in any breach or continuing breach under this
Agreement except as expressly agreed to in writing and no waiver of any breach
of any provision of this Agreement constitutes a waiver of any preceding or
succeeding breach of such provision or of any other provision of this
Agreement.
9.5 Amendments.TLSI hereby reserves the right to modify, supplement,
or replace the terms of this Agreement upon TLSI’s notice to Customer (which
may be through posting on <http://dashboard.totalleadersolutions.com>or such other URL designated by TLSI). If Customer does not want to agree to changes
to this Agreement, Customer may terminate this Agreement upon written notice to
TLSI
9.6 Rights and Remedies Not Exclusive.Rights and remedies available
to TLSI under this Agreement are in addition to, not in substitution for or a limitation upon,
any duties, obligations, rights, or remedies otherwise imposed, created or
available at law, in equity or otherwise.
9.7 Severability. Should any
part, term or provision of this Agreement be held by a court of competent
jurisdiction to be void, illegal, or otherwise unenforceable, such
determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions of this Agreement, and each
provision or portion thereof, is hereby declared to be separate, severable and
distinct.
9.8 Further Assurances.The Parties will perform all acts and execute,
acknowledge and deliver or will cause to be done, executed, acknowledged and
delivered, all such further documents, assurances or things, and secure all
necessary consents and approvals, as may be reasonably required for the more
complete and perfect observance and performance by the Parties of their
respective obligations under this Agreement.
9.9 Notices.Unless otherwise provided in this Agreement, any
notice required to be given in writing shall be given by personal delivery, by
registered mail (postage prepaid), by courier (courier prepaid), by fax, or
other means of confirmed electronic communication to:
TLSI,at the address indicated on any Fee Schedule or
such other address as the recipient designates and given in accordance with
this provision; and
CUSTOMERat an address
Customer designates and gives in accordance with this provision.
9.10 Section Headings.The division of this Agreement into sections and paragraph
headings is intended for convenience of reference only, and shall not affect
the meaning or the interpretation of this Agreement. The terms: “this Agreement”, “hereof”,
“herein”, “hereunder” and similar expressions refer to this Agreement and not
to any particular section or subsection hereof.
9.11 Other Defined Terms.Other terms used in this Agreement are defined
in the context in which they are used and shall have the meanings there
indicated. Words, phrases and abbreviations used in this Agreement which have a
recognized technical or trade meaning shall have such recognized meaning.
9.12 Assignment.Customer shall not transfer, convey or assign this
Agreement and/or any rights, duties or obligations hereunder, without the prior
written consent of TLSI, and any such attempted assignment shall be null and
void. The rights and obligations under this Agreement shall be binding upon,
and enure to the benefit of the Parties and their respective successors and
permitted assigns.
9.13 Survival.The following sections shall survive the expiration
or termination of this Agreement in addition to any other provision which by
law, by its nature or by reasonable implication should survive: Sections: 3.1,
3.3, 3.4, 4, 5.6, 6, 8, and 9.
9.14 Governing Law.This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario, without regard to its
conflict of laws rules, and the laws of Canada, as applicable. With respect to any action or proceeding
arising out of this Agreement, the Parties agree and each of them hereby submit
to the jurisdiction of the Ontario Superior Court of Justice. The Parties
expressly exclude the application of the United Nations
Convention on Contracts for the International Sale of Goods (Canada) and
the International Sales Conventions Act (Ontario).
9.15 Dispute Resolution.Any dispute regarding the
interpretation, compliance with or breach of this Agreement will be resolved as
follows:(i) the Parties agree to negotiate in good
faith commencing upon written notice from one Party to the other containing a
summary of the dispute (the “Dispute
Notice”), and all such negotiations shall be confidential and inadmissible
in any subsequent proceeding without the written consent of the Parties ;(ii)if the dispute is not resolved by negotiation as
set out above within twenty (20) Business Days following the receipt of the
Dispute Notice, the Parties may refer the dispute to a mediator acceptable to
both Parties for non-binding mediation, and the costs of such mediation shall
be shared equally by the Parties; (iii) if the dispute is not settled pursuant
to the foregoing within forty (40) Business Days after receipt of the Dispute
Notice, either Party may seek any legal and equitable remedies available to it
under applicable laws.
9.16 Entire Agreement; Conflict.This Agreement and any other terms
and/or conditions expressly incorporated by reference contain and constitute
the entire agreement between the Parties with respect to the subject matter
hereof, and supersedes and replaces any and all previous understandings,
proposals, commitments or agreements,
oral or written, relating to the subject matter hereof. In the event of any conflict or inconsistency
between this Agreement and a Fee Schedule, this Agreement will prevail, unless
the Fee Schedule expressly stipulates that such term or provision shall be
overridden. If an ambiguity or question
of intent arises with respect to any provision of this Agreement, this
Agreement will be construed as if drafted jointly by the Parties and no
presumption or burden of proof will arise favouring or disfavouring either Party
by virtue of authorship of any of the provisions of this Agreement.
[End
of this Agreement.]