1. SCOPE OF SERVICES
Throughout the Term, ET Group, a division of Pistil Enterprises Ltd., located at 3-130 North Queen Street, Toronto, Ontario, herein referred to as ET Group, shall provide to Client the Included Services as described in the Agreement, in exchange for fees as described on the accompanying Agreement (the “Fees”).
1.1. Definitions
1.1.1. “Agreement” means the accompanying quote or proposal document together with these terms and conditions, as amended by any change orders.
1.1.2. “Covered Equipment” means the physical equipment for which ET Group will provide service, as listed in the Agreement, including firmware and software installed thereon.
1.1.3. “Equipment Location” means the location where the Covered Equipment is installed as defined by an address and room location.
1.1.4. “UCaaS” or “Unified Communications as a Service” means a subscription-based communication and collaboration service that may include enterprise messaging, presence technology, online meetings, team collaboration, telephony, video conferencing and diagnostics tools.
1.1.5. “Covered UCaaS” means the UCaaS for which ET Group will provide support, as listed in the Agreement.
1.1.6. “Service Request” means a request from the Client to ET Group to provide to Covered Equipment services that are over and above the Included Services or to provide services to equipment not included in the Covered Equipment. Service Requests shall be submitted by email or telephone or other means provided by ET Group to Client for such purposes. Service Requests shall include, at a minimum, the following information:
(a) Client name,
(b) Contract number,
(c) Contact information including name of person requesting service, their email address and phone number,
(d) Location of the request including street address and room number,
(e) The nature of the problem observed, and
(f) Make and model of the Covered Equipment in need of service, if known.
1.1.7. “Incident” means an interruption or degradation of Included Services to the Covered Equipment.
1.1.8. “Incident Report” means that Client notifies ET Group of an Incident by email, Web Ticketing Form, or by other means provided by ET Group to Client for such purposes. Incident Reports shall include, at a minimum, the following information:
(a) Client name,
(b) Contract number,
(c) Contact information including name of person requesting service, their email address and phone number,
(d) Location of the request including street address and room number,
(e) The nature of the problem observed, and
(f) Make and model of the Covered Equipment in need of service, if known.
1.1.9. “Extra Fees” means that the costs of labour, equipment and shipping to fulfil the Service Request are not included in the cost of the Agreement and that ET Group shall provide a quotation to Client for requested Services for which an Extra Fee is listed. ET Group shall not commence any such work unless Client has given written approval.
1.1.10. “After Hours Fees” means that labour requested to be provided outside of Onsite Response Hours is additional and shall be invoiced as Extra Fees.
1.1.11. “Telephone Support” means that Client may contact ET Group via email or telephone and ET Group shall provide service response or technical support as necessary by telephone.
1.1.12. “Helpdesk Hours” means that ET Group shall respond to Service Requests during the hours and days specified in the Agreement. Service Requests received outside of these times will receive a response on the next business day.
1.1.13. “Helpdesk Response Time” means that if a Client Service Representative (“CSR”) of ET Group is not immediately available to answer the Incident, a CSR shall call the Client Contact at the provided number, within the time listed in the Agreement and from the time ET Group received the Incident. Incidents received after Helpdesk Hours shall receive a response within the Helpdesk Response time at the start of the next business day. Should the Client Contact not be available to receive such a call, the CSR shall leave a voice-mail message with the Client Contact.
1.1.14. “Incident Management” means that the CSR who receives an Incident shall create an incident record within ET Group’s incident management software and provide to the Client Contact an identifying number unique to the incident (the “Incident Number”). Client agrees to retain and refer to the Incident Number in any future communications about the incident. Includes internal escalation of Incident tickets that have failed SLAs, as defined in the Agreement
1.1.15. “Onsite Response” means that if, at ET Group’s sole discretion, an Incident cannot be resolved by telephone, ET Group shall dispatch one or more service technicians to Client’s site during the hours and days specified in the Agreement. Technicians shall arrive at Client’s site within the Onsite Response Time, which begins at the time the Incident is received by ET Group. Work shall begin and end within the Onsite Response Hours. Outstanding work will resume the next business day.
If Client requests and ET Group agrees, ET Group shall dispatch one or more service technicians to Client’s site to perform work outside of or beyond the Onsite Response Hours (“After-Hours”). After Hours Fees shall apply to such After Hours response.
There shall be no cost to Client for time or other expenses incurred during travel to and from Client’s site or for time incurred during Onsite Response Hours.
1.1.16. “Escalation” means that ET Group shall, if a Service Level is at risk or upon reasonable request from Client, escalate the response to a Service Request per the Agreement.
1.1.17. “Incident Reporting” means that ET Group shall periodically if so, listed in the Agreement or upon request from Client, in which case Extra Fees shall apply, provide a formal report of all Incidents.
1.1.18. “Remote Diagnostics” means that prior to dispatching a service technician to the Client’s location, at ET Group’s discretion a service technician may contact the Client or, where this is enabled, remotely connect to video codecs or other on-site devices to gather further detail of the nature of the Incident and attempt to resolve the Incident.
1.1.19. “Remote Monitoring” means that, if Client has purchased remote monitoring services from ET Group, ET Group shall, by means of a third-party AV device-management system (“RMS”) that will be deployed within Client’s AV network and monitored from a cloud-based service, (i) monitor the state of each device, (ii) detect Incidents in real time, (iii) whenever practical automatically send commands to any devices found defective to enable them to be restored to normal operating condition, and (iv) issue Remote Monitoring Incident Reports.
1.1.20. “Remote Monitoring Incident Report” means that in response to detection of an incident the Remote Monitoring system shall automatically generate a report that includes details about the device, its location, time of incident and the nature of the fault detected, and shall be sent by email to pre-determined distribution list. ET Group agrees to add Client contacts to the distribution list, or remove them, upon written request.
1.1.21. “Asset Management” means that ET Group shall maintain a complete record of details about, and Services provided to, the Covered Equipment throughout the Agreement. ET Group pledges to retain such information for 12 months after any termination of the Agreement.
1.1.22. Preventative Maintenance” means that ET Group shall periodically if so included in the Agreement, or when not included and requested by Client, in which case Extra Fees shall apply, complete a planned service to the Covered Equipment that includes, as applicable: (i) inspection of equipment, cables and ancillary devices for wear or damage, (ii) cleaning of equipment to prevent accumulation of dust, (iii) reviewing racks for proper heat dissipation and adjusting as needed, (iv) checking and, if required, updating firmware versions, (v) testing, adjusting and validating microphones and audio settings and operation and (vi) verifying codecs through making test calls. Following the completion and review by ET Group of the aforementioned activities, ET Group shall provide a report describing (i) activities completed, (ii) deficiencies found and (iii) recommended actions by Client.
1.1.23. “Replacement Under Warranty” means that ET Group shall replace Covered Equipment that (i) ET Group’s service technician determines to be defective, and (ii) is covered by the manufacturer’s warranty, at no additional cost to Client.
1.1.24. “Replacement Out of Warranty” means that ET Group shall replace Covered Equipment that (i) ET Group’s service technician determines to be defective, (ii) cannot reasonably be repaired and (iii) no longer has a manufacturer’s warranty in force,
1.1.25. “Equipment Repair” means that ET Group shall remove and repair Covered Equipment that (i) ET Group’s service technician determines to be defective, (ii) can reasonably be repaired and (iii) no longer has a manufacturer’s warranty in force.
1.1.26. “Spare Parts Program” means that if this option is included in the Agreement, ET Group shall procure and maintain in its warehouse a stock of critical spare parts as listed in the Agreement. Replacement of parts consumed during the term of this SoW shall be at Client’s expense. Spare parts become the property of Client at time of receipt by ET Group and shall be returned to Client at the expiry or earlier termination of this Agreement and any extensions or renewals thereof.
1.1.27. “Account Management” means that ET Group shall provide periodic reports to Client as defined in the Agreement. Reports shall include, at a minimum, (i) summary records of each Incident, (ii) summary records of preventative maintenance visits completed and findings thereto, (iii) KPIs defined in the Agreement, as well as any other elements as may be defined in the Agreement.
1.2. Limitations of Repair and Replacement. Client agrees and accepts that the time to complete Repair or Replacement of Covered Equipment is subject to the availability of parts and equipment from manufacturer and manufacturer’s distributors and cannot be guaranteed by ET Group, who will make commercially reasonable efforts to minimize the repair or replacement time.
2. CLIENT’S OBLIGATIONS DURING THE AGREEMENT
2.1. Access to Systems and Equipment. Client agrees to provide ET Group with reasonable access to the Covered Equipment and Covered UCaaS (i) to deliver the Included Services, at a time that is mutually agreeable to both Client and ET Group and is during the Onsite Service Hours; (ii) for sufficient time, as determined by ET Group, to perform the Services, including troubleshooting, diagnosis, adjustments and/or repair of the Covered Equipment; (iii) to provide or facilitate all necessary access and permissions to enable ET Group’s on-site resource to perform his or her tasks effectively; (iv) to facilitate necessary access, including but not limited to network, account and physical access, to enable ET Group to manage the RMS, including its collector server, and monitor the Covered Equipment using the RMS and (v) to facilitate necessary access, including but not limited to network and account access, to enable ET Group to operate and support the Covered UCaas including provision of any necessary log files, throughout the Term.
2.2. Equipment Maintenance or Alteration. Client shall not modify, repair or replace the Covered Equipment or the wiring interconnections of the Covered Equipment, except as may be expressly directed by ET Group’s service personnel. Client shall not add equipment, components, wiring or other parts to the Covered Equipment without written acceptance by ET Group. Such additions or alterations do not become part of the Covered Equipment unless an amendment to add same to the Agreement is duly executed by all parties.
2.3. Equipment Operation. Client shall operate the Covered Equipment as detailed in the user operations manual provided by either the installer or the manufacturer of the Covered Equipment.
3. EXCLUSIONS
3.1. The following are excluded from the Agreement:
(a) Services for Equipment other than the Covered Equipment. This includes but is not limited to Client-furnished equipment such as PCs or laptops and cable boxes supplied by a cable provider.
(b) Software patches or updates for Covered UCaaS not specifically listed in the Agreement.
(c) Replacement of any consumable parts including but not limited to projector bulbs or batteries – including UPS batteries – and remote controls. Such parts will be provided to Client at preferential prices.
(d) Failure of the Covered Equipment due to or caused by (i) fire, (ii) poor, unconditioned or fluctuating electrical power, or (iii) natural and environmental causes such as earthquake, tornado, lightning, corrosion, flood, or other acts of God, or other causes beyond ET Group’s reasonable control.
(e) Failures or faults of the Covered Equipment or Covered UCaaS caused by (i) Client operational decisions, adjustment or alterations; (ii) failures, deficiencies or defective operation in structural, mechanical, electrical, network or plumbing systems, including extreme temperatures, humidity and dust levels; (iii) failure of or changes to internal networking services that prevent the correct operation of the Covered Equipment or Covered UCaaS; or (iv) by other AV equipment not installed by ET Group and not specifically covered under this Agreement, and may incur Extra Fees for assessment, determination and repairs.
(f) Failure of the Covered Equipment or Covered UCaaS caused by abuse, misuse, or negligence by the Client or its agents.
(g) Provision, operation or support of UCaaS other than the Covered UCaaS or other Unified Communications services not specifically listed in the Agreement.
(h) Service that is required to diagnose a Client complaint, failure or perceived failure if, subsequently, no failure of the Covered Equipment was found, or if the complaint was due to Client’s failure to properly operate the Covered Equipment.
(i) Control system or other software programming changes to facilitate control functions not available at the commencement of the Agreement.
(j) Equipment that has been moved from the original installed premise to another location without prior notification to ET Group. Any damages that occur as a result of relocation of equipment are the Client’s responsibility and are not covered under the terms of this Agreement. Any costs required to restore the system to correct operating condition shall be the Client’s responsibility.
(k) Administration of and support for network infrastructure including but not limited to data centre routing and switching, enterprise networking (LAN/WAN), application delivery controllers, enterprise wireless LAN, DNS, DHCP, firewall (L3-L7), network packet brokers, IPS/IDS, Load Balancers, Software Defined Network (SDN), and web application firewalls.
(l) Administration of and support for server infrastructure, including but not limited to physical servers, virtual machines (VMs) including cloud-based VMs, server operating systems, hypervisors, or Virtual Private Network (VPN) services used to host Covered UCaaS or enable ET Group to provide the Included Services, that is not specifically listed in the Agreement.
(m) Failure or service quality degradation of Covered UCaaS (i) to the extent attributable to the actions or inaction of the Covered UCaaS platform provider; or (ii) to the extent attributable to changes in Client’s network and computing environments not caused by ET Group.
(n) Inability of the Covered Equipment, due to the manufacturing design of a product or products or the integration of the system, to perform in a manner other than for what it was designed.
(o) Any actual, consequential or incidental damages incurred or suffered by Client directly or indirectly, or for economic loss, including, but not limited to inconvenience, loss of profits, loss of business revenue, loss of time, loss of equipment use, or any other economic loss of any kind whatsoever, even if ET Group has been advised of the possibility thereof.
(p) The data or content presented during the use of Equipment on Client premise.
(q) Repairs prohibited by statute, governmental regulation, or any other law.
4.1. This Agreement shall not be transferred or assigned by Client without the express written consent of ET Group. Such consent shall not be unreasonably withheld, conditioned or delayed.
5. TERM AND TERMINATION
5.1. At the end of the Term or earlier termination in accordance with this Agreement, ET Group shall complete any repair work on the Covered Equipment that was reported in the manner prescribed prior to the Expiration Date.
5.2. This Agreement shall not automatically renew. Client may negotiate a renewal of this Agreement beyond the Expiration Date by providing sixty (60) days’ written notice to ET Group.
5.3. Termination
5.3.1. Client may remove Covered Equipment from the Agreement (the “Terminated Equipment”) at any time after the first thirty (30) days following the Effective Date by notifying ET Group in writing not less than sixty (60) days prior to such removal (the “Early Termination Date”). ET Group shall issue to Client the amended list of Covered Equipment following the Early Termination Date.
5.3.2. Either party may terminate this Agreement and any outstanding service requests at any time without notice if:
(a) The other party fails to perform or breaches any material term or condition hereof and does not cure such failure within thirty (30) days after receipt of written notice from the non-breaching party describing the breach in reasonable detail; or
(b) Either party becomes insolvent or subject to proceedings under any insolvency or bankruptcy law receivership, dissolution, or liquidation or makes an assignment for the benefit of its creditors, a proposal, or another arrangement with its creditors under such a law; or
(c) There is a change in ownership of the other party that results in the control of the majority of voting shares to change to another shareholder, the party reserves the right to terminate this Agreement if, based on an evaluation of the new shareholder(s) of the other party could adversely impact the party’s business, as solely determined by the party.
6. OTHER
6.1. Subcontractors
ET Group may use subcontractors to deliver the Services. ET Group shall require that all its personnel and subcontractors comply with all Client policies and rules when on Client premises and shall promptly remove those who do not comply.
6.2. Insurance
ET Group will maintain insurance of the following types and limits of liability:
(a) Workers Compensation, which shall apply to all persons employed by ET Group.
(b) Comprehensive General Liability, with a combined single limit of liability of $2,000,000 for bodily injury and property damage liability of each occurrence.
(c) Business Automobile Liability, covering all owned, non-owned and hired automobiles with a combined single limit of liability of $5,000,000 for bodily injury and property damage for each accident.
6.3. The provisions of the Agreement, and its attached appendices, constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to its subject matter.
6.4. This Agreement shall not be amended without the prior written consent of all parties to this Agreement.
6.5. Any notice required or permitted to be given in connection with this Agreement shall be in writing and shall be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery), or transmitted by email, to the party’s address listed in the Agreement.
Any notice:
(a) delivered personally or by courier on a business day will be deemed to have been given on that business day;
(b) transmitted by electronic transmission on a business day and (i) for which the sending party has received confirmation of transmission before 5 p.m. on that business day, will be deemed to have been given on that business day, or (ii) for which the sending party has received confirmation of transmission after 5 p.m. on that business day, will be deemed to have been given on the next business day; and
(c) sent by prepaid registered mail will be deemed to have been given on the fifth (5th) business day after the date of mailing.
6.6. This Agreement reflects the intention of the parties, and all provisions of the Agreement and appendices attached thereto are binding on the parties. In the event of a conflict between the Agreement and these Terms and Conditions, the words of the Agreement shall prevail.
6.7. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in Ontario, which will be deemed the proper law of this Agreement.
7. CONFIDENTIALITY
7.1. In the event any ET Group personnel perform Services onsite at Client’s premises, ET Group personnel will abide by any Client policies, standards and other similar guidelines, or codes of conduct provided to ET Group in advance. Client will be entitled to bar entry to its premises to any ET Group personnel who behave in a manner disruptive to Client’s business, and in such event, ET Group will dispatch replacement personnel at the earliest convenience to complete the performance of the Services.
7.2. Return of Client Property.
7.2.1. Upon the earlier of the date of termination and a written request by the Disclosing Party, the Receiving Party shall, in respect of all copies of Confidential Information in the Receiving Party’s possession or control related to the Services, including all work in progress:
(a) remove all Confidential Information in electronic form from its electronic databases and files,
(b) return it to the Disclosing Party; or
(c) alternatively, if so, instructed by the Disclosing Party, destroy it and confirm to the Disclosing Party in writing that it has done this.
7.2.2. Notwithstanding the foregoing, the Receiving Party (i) may retain copies of the Confidential Information to the extent required to be kept for compliance with any internal document retention or corporate governance policies or practices, and (ii) will not be required to purge any electronic documents in the Receiving Party’s electronic archive system.
7.3. Intellectual Property.
7.3.1. ET Group acknowledges that it will perform the Services, and that intellectual property rights, including but not necessarily limited to trade secrets, moral rights, goodwill, relevant registrations or applications for registration, and rights in any patent, copyright, trademark, trade dress, industrial design and trade name (“IP Rights”), may exist in the Services and the work arising therefrom. ET Group agrees that such works will not infringe the IP Rights of others. ET Group agrees that anything incorporated into the works which is owned by or subject to the IP Rights of another will be used by ET Group only with the necessary permission.
7.3.2. ET Group agrees not to disclose, directly or indirectly, to any other person the details of the Services, except as may be necessary to carry out the Services.
7.4. Confidentiality
7.4.1. “Confidential Information” means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) whether before or after the date of this Agreement. Confidential Information shall not include, in the hands of Client, the work product of the Services provided by ET Group.
7.4.2. Confidential Information will be maintained under secure conditions by a Receiving Party, using reasonable security measures and in any event not less than the same security procedures used by the Receiving Party for the protection of its own Confidential Information of a similar kind.
7.4.3. Each party agrees, for the term of this Agreement and for two years after its expiration or termination of this agreement and any extensions thereto, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the disclosing party to receive such Confidential Information, not to release the Confidential Information except to employees requiring the Confidential Information in the performance of their duties and who are made aware of and who are bound by obligations no less onerous than the confidentiality obligations set out herein or in any SOW, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. It is understood and agreed, that ET Group may use Client public branding and public information, as well as non-confidential information related to a project, for marketing purposes and expressions.
7.4.4. If a Receiving Party becomes aware of any actual or suspected breach of Confidentiality; the Receiving Party will immediately notify the Disclosing Party in writing and provide the Disclosing Party with such information relating to such breach or alleged breach as the Disclosing Party may request and will respond to such event as directed by the Disclosing Party acting reasonably.
7.4.5. The Receiving Party may disclose Confidential Information:
(a) to any of its officers, employees, agents and contractors if disclosure is necessary for the purposes of providing the Services under this Agreement, in which case it shall ensure that the disclosee complies with the Receiving Party’s obligations of confidentiality under this Agreement as if it was the Receiving Party; or
(b) if required to do so by law or by a competent regulatory authority, provided that to the extent permitted by law it gives notice to the Disclosing Party of the required disclosure as soon as practicable, but only if such disclosure is to the minimum extent required to satisfy such obligation.
7.4.6. Section 7.4.3 does not apply to Confidential Information which:
(a) is at the date of this Agreement, or at any time after that date becomes, publicly known other than by the Receiving Party’s breach of this Agreement; or
(b) can be shown to have been independently developed by the other party by employees or agents without access to the party’s Confidential Information; or
(c) can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by or in the possession of the Receiving Party before disclosure by the Disclosing Party to the Receiving Party or subsequently to have been disclosed to the Receiving Party by a source other than the Disclosing Party without breach of this Agreement or other commitments.
7.4.7. The parties’ obligations of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with such Confidential Information, provided that such party shall maintain the confidentiality of the Confidential Information as provided herein. The term “residuals” means information in non-tangible form, which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents.
7.4.8. It is understood that each of such terms and conditions is necessary to preserve the confidentiality of the Information provided to the Receiving Party pursuant to this Agreement and that a breach of any of the terms and conditions hereof would result in irreparable damage to the Disclosing Party and/or its direct and indirect shareholders in an amount now impossible to calculate. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party and that the Disclosing Party shall be entitled to specific performance as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the Receiving Party’s breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. In addition, the Receiving Party agrees to waive any requirement for the securing or posting of any bond in connection with the foregoing remedies.
8. INDEMNITY
8.1. ET Group will defend, indemnify and hold harmless Client and its directors, officers, managers, members, employees and agents, from and against any loss, cost, expense (including, reasonable attorney fees and expenses) or other liability arising from any third party actions, suits, claims, demands, judgements or similar proceedings or any damages, assessments or penalties incurred to the extent based on or arising from (as applicable):
(a) the Services, or any materials provided in connection with the Services by ET Group, infringing or misappropriating the IP Rights of any third party;
(b) ET Group’s breach of its obligations under this Agreement;
(c) ET Group’s gross negligence or wilful misconduct; (iv) the failure of ET Group to exercise reasonable care, skill and/or diligence in the performance or rendering of the Services; or (v) withholding taxes Client is required to deduct or withhold.
8.2. ET Group’s indemnification obligations above shall be conditioned upon: (i) Client providing ET Group with prompt written notice of the existence of any such claim of infringement or misappropriation, provided, however, that failure to provide such notice shall not relieve ET Group from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (ii) in the case of any third-party claim, ET Group having sole control and authority over the defence or settlement of any such action with Counsel reasonably acceptable to Client; and (iii) Client cooperating fully with ET Group, at ET Group’s sole cost and expense, in the defence of any such action. ET Group shall not accept any settlement without Client’s prior written consent which: (i) imposes an obligation on Client (other than the payment of monetary damages subject to indemnification by ET Group hereunder); (ii) requires Client to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Client without Client’s prior written consent, which consent may be unreasonably withheld or delayed. Client may participate in the defence of any such action through its own counsel at its own expense.
9. REPRESENTATIONS AND WARRANTIES.
9.1. Each party represents, warrants and covenants that: (i) it has the full power and authority to execute and deliver this Agreement; and (ii) the execution, delivery and performance of this Agreement does not and will not result in the violation of any applicable law or conflict in any material respect with or constitute a material breach under any document, agreement, license or other writing by which it is bound.
9.2. Each party, except those that are disclosed in writing, represents that there are no pending or outstanding civil proceedings against that party that could material impact that party’s ability to fulfil the terms of this Agreement.
10. LIMITATION OF LIABILITY.
10.1. Force Majeure. In the event that either party hereto is delayed or hindered in the performance of any act required by this Agreement by reason of strike, lock-outs, labour troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, natural disaster, riots, sabotage, terrorist act, insurrection, war, pandemic, act of God, or other reasons of a like nature beyond the reasonable control of such party (a “Force Majeure Event”), then the performance of such act shall be excused for the period of the delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay, up to a maximum of three (3) months, provided that such party (i) immediately notifies the other party of the circumstances creating the failure or delay; (ii) provides sufficient documentation to establish (to the reasonable satisfaction of the other party) the impact of such party’s failure or delay; and (iii) uses commercially reasonable efforts to re-commence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans, implementation of a disaster recovery plan or other means. Should a Force Majeure Event prevent performance hereunder for more than three (3) consecutive months, either party may terminate this Agreement effective immediately upon written notice to the other party.
10.2. Limited Damages. Except with respect to either party’s breach of the confidentiality obligations set forth herein, gross negligence or wilful misconduct, or ET Group’s breach of law or breach of its indemnity obligations set forth herein, neither party’s liability arising in any manner under this Agreement, including, but not limited to, liability arising out of breach of contract (even if based upon a claim of fundamental breach or breach of a fundamental term), negligence, strict liability, product liability or warranty, shall exceed the amount paid or payable by Client under the terms of the Agreement. Notwithstanding the foregoing, nothing in this Agreement shall operate to exclude or restrict either party’s liability for death or personal injury resulting from negligence, or as a result of fraud, for which no limit applies.
10.3. Risk of Loss. Client shall bear the entire risk of loss or damage to any hardware & software after its shipment and/or installation to site and/or upon delivery and receipt to the Client.
10.4. Licenses. Where Client has purchased software or UCaaS services that require that Client agree to and comply with an End-User Licensing Agreement (EULA) or similar license, ET Group shall not be liable for any breaches of such licenses by Client or its agents.
11. RELATIONSHIP OF THE PARTIES
The parties hereto are independent contractors and nothing in this Agreement shall be construed to make the parties hereto partners, joint ventures, employees or agents of each other, nor shall either party so hold itself out. Neither party shall make any representation or commitments on behalf of the other party nor shall any party be bound by any such representation or commitment unless previously consented to in writing by the non-committing party. Nothing contained in this Agreement is intended to create, nor shall be construed as creating, an employment relationship between ET Group and Client. As an independent contractor, ET Group shall not be entitled to any employment related benefits.
12. SEVERABILITY.
In the event that any covenant, provision or restriction contained in this Agreement is found to be void or unenforceable (in whole or in part) by a court of competent jurisdiction, it shall not affect or impair the validity of any other covenants, provisions or restrictions contained herein, nor shall it affect the validity or enforceability of such provisions in any other jurisdiction or in regard to other circumstances. Any covenants, provisions or restrictions found to be void or unenforceable are declared to be separate and distinct, and the remaining covenants, provisions and restrictions shall remain in full force and effect.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to all the matters herein and supersedes any and all other representations, understandings, negotiations and previous agreements, written or oral, express or implied. The parties do not rely upon or regard as being material any representations or other agreements not specifically incorporated into and made part of this Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
15. CHOICE OF LANGUAGE
The parties hereby acknowledge that they have expressly required this Agreement to be drawn up in the English language only. Les parties reconnaissent avoir expressement demande que la presente convention soit redigee en langue anglaise seulement.