Schedule “A” – CIRA Professional Services – Terms and Conditions
These Terms and Conditions govern the provision of Professional Services provided by the Canadian Internet Registration Authority (“CIRA”) to you (“Customer”). These Terms and Conditions together with all Statement(s) of Work (as defined below) comprise a legal agreement (the “Agreement”) between CIRA and Customer. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SERVICES
1.1 Statement of Work. CIRA and Customer will execute one or more statement(s) of work, which shall be attached as Schedules that describe the specific services to be performed by CIRA (each, a “Statement of Work”).
1.2 Services. CIRA will perform the services specified in a Statement of Work (the “Services”) in accordance with the terms and conditions of this Agreement.
1.3 CIRA and Customer Responsibilities. In connection with each Statement of Work, CIRA will provide qualified personnel who are capable of performing the duties and tasks under the Statement of Work. Customer will provide any materials as may be reasonably required to permit CIRA to perform the Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete and that Customer has all the required rights in such Customer Materials.
1.4 Designated Contacts. Each party will designate in the Statement of Work one or more individuals who will serve as the point(s) of contact between the parties for all matters relating to Services to be performed thereunder. A party may designate new contacts by written notice to the other party.
2. PAYMENT
2.1 Fees and Expenses. For CIRA’s performance of the Services, Customer will pay CIRA the fees as set forth in the Statement of Work together with all applicable taxes.
2.2 Payment Terms. CIRA will invoice Customer for all applicable fees based on Services performed by CIRA as set forth in the Statement of Work. Customer will pay each such invoice pursuant to the terms outlined in the Statement of Work. CIRA may charge Customer a late fee comprised of simple non-compounded interest at a rate per annum equivalent to six percent (6%). CIRA also reserves the right to suspend provision of the Services or to terminate this Agreement arising from Customer’s breach of the Agreement including any failure to pay any invoice when due.
2.3 Taxes. All fees hereunder do not include any sales, or other applicable taxes, payment of which will be the sole responsibility of Customer (excluding any taxes based on CIRA’s net income).
3. OWNERSHIP
To the extent that CIRA utilizes any of its property (including, without limitation, the CIRA technology or any hardware or software) in connection with the performance of the Services in any Statement of Work, such property shall remain the property of CIRA, and Customer shall acquire no right or interest in such property. In addition, the parties acknowledge and agree that (a) CIRA will own all right, title, and interest, including, without limitation, all rights under all copyright, patent, trademark, trade name and other intellectual property laws, in and to any technology developed by CIRA and (b) CIRA may employ, modify, and otherwise exploit this technology, including, without limitation, providing services or creating programming or materials for other customers.
4. CONFIDENTIAL INFORMATION
4.1 Confidential Information. “Confidential Information” means: (i) Customer materials and CIRA materials; (ii) any business or technical information that a party discloses to the other party and designates as “confidential” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
4.2 Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure.
4.3 Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that, if not prohibited pursuant to applicable laws, the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors.
5. WARRANTY
5.1 Services Warranty. CIRA warrants that the Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and CIRA’s entire liability for any breach of the foregoing warranty, CIRA will, at its sole option and expense, promptly re-perform any Services that fails to meet this limited warranty or refund to Customer the fees paid for the non-conforming Services.
5.2 Warranty Disclaimers. THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF, AND CIRA DISCLAIMS, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL CIRA OR ITS CONTRACTORS, AFFILIATES, DIRECTORS OR OFFICERS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS OR LOSS OF PROFITS OR REVENUE) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF CIRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CIRA’S TOTAL LIABLITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABLITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO CIRA BY CUSTOMER UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
7. NON-SOLICITATION
During the term of this Agreement and for a period of thirty-six (36) months thereafter, Customer will not recruit or otherwise solicit for employment any CIRA employees, consultants or subcontractors who participated in the performance of the Services without CIRA’s express prior written approval.
8. TERM AND TERMINATION
8.1 Term. This Agreement will commence on the date both parties have accepted this Agreement (“Effective Date”) and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect until all the Services have been fully performed under the Statement of Work or any outstanding Statement of Work has been terminated according to the terms of this Agreement.
8.2 Termination. A party may terminate this Agreement if the other party breaches any material term of this Agreement or Statement of Work and fails to cure such breach within thirty (30) days after receipt of written notice thereof.
8.3 Effect of Termination. Upon the expiration or termination of this Agreement: (i) CIRA will promptly return to Customer all Customer Materials; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (iii) Customer will, within thirty (30) days after receipt of CIRA’s invoice, pay all accrued and unpaid fees and expenses.
8.4 Survival. The rights and obligations of the parties contained in sections 2, 3, 4, 6, 7, 8.3, 8.4 and 9 will survive the expiration or termination of this Agreement and Statement of Work.
9. GENERAL
9.1 Relationship of the Parties. CIRA is performing the Services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and CIRA or any CIRA personnel. CIRA has no authority to bind Customer by contract or otherwise. CIRA acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. CIRA is solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between CIRA and its personnel and the performance of the Services by such personnel.
9.2 Marketing. Customer agrees that CIRA may publicly list Customer as a recipient of the Services, and may publicly announce, by press release, or otherwise, the relationship between Customer and CIRA created by this Agreement.
9.3 Assignment and Subcontracting. This Agreement may not be assigned by CIRA or Customer without the prior express consent of the other, except that each party will be able to assign the Agreement without the consent of the other, to any affiliated entity, which for greater certainty, may be an existing entity or an entity which is created for the purposes of providing the Services. Any other attempt to assign this Agreement in violation of this Section shall be a breach of this Agreement and shall be null and void. CIRA may use subcontractors to perform this Agreement.
9.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the province of Ontario, Canada and the federal laws of Canada applicable therein, and the Parties herby submit to the exclusive jurisdiction of the courts of such province located in Ottawa, Ontario.
9.5 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.6 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
9.7 Entire Agreement. This Agreement, together with Statement of Work, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
9.8 Force Majeure. If the performance by either Party or any of its obligations under this Agreement is delayed or prevented by circumstances beyond its reasonable control, then that Party will not be in breach of this Agreement because of any delay in performance. However, if the delay in performance exceeds six months, the other Party may terminate this Agreement with immediate effect by giving notice to the affected Party.
9.9 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
