This is a legal Agreement (the “Agreement”) between Innovation Centre at Bayview yards and its respective officers, employees, representatives or agents (“ICBY”) of 7 Bayview Station Road, Ottawa, Ontario, K1Y 2C5, and the client named below (the “Client”) regarding the Client’s use of services that may be provided to the Client by or for Invest Ottawa.
Everyday language summaries on each header and within the T&Cs are provided for convenience only and are not legally binding. Please read the entire Agreement for a complete picture of the terms. This Agreement governs your activities as a Client, and ours as a Service Provider.
The parties agree as follows:
Service and Statements of Work: We’ll do the best we can for you, within reason
NOW THEREFORE in consideration of the mutual promises and Agreements contained in this Agreement, and other good and valuable consideration, the Parties agree as follows:
1.1 During the Term (as defined in Section 18.1) of this Agreement, the Client hereby retains ICBY on a non-exclusive basis to provide to the Client the Services and Deliverables.
2. Statements of Work
2.1 Each Statement of Work shall describe the services required, the specifications for the services (collectively the “Services”) and any deliverables to be developed including but not limited to any product, model, mock-up, sample or unit (and materials contained therein) developed or provided by ICBY (“Deliverables”) and such additional terms and conditions and other information as shall be required in order to specifically define the Services to be performed and be in one of the forms attached hereto as Schedule “A” (“Statement of Work”). Each Statement of Work shall be prepared by ICBY and shall reference this Agreement. Each Statement of Work will be signed by the authorized signing officers of ICBY and the Client and a signed copy shall be delivered to each Party. Each Statement of Work shall be subject to the terms and conditions of this Agreement. In the event of a conflict between this Agreement and the terms and conditions contained in a Statement of Work, the terms and conditions in such Statement of Work or its applicable Change Order (as defined in Section 2.2) shall govern. Upon execution by an authorized representative of each Party, each Statement of Work shall become a part of the Agreement.
2.2 Client may, from time to time, make changes to the scope of the Services, provided that, to be effective, such changes must be in writing and agreed to by both Parties set out in a change order and be in the form attached hereto as Schedule “B” (“Change Order”). If any such change results in an increase or a decrease in the total Fees payable by Client for the Services, such increase or decrease in the total Fees payable shall be set out in a Change Order. Each Change Order to the Services may contain such additional terms and conditions as may be mutually
agreed to by the Parties. Furthermore, ICBY may at any time change the scope of the Services if completion of the Services would to its actual knowledge lead to the violation of any applicable laws or regulations or would to its actual knowledge result in the infringement of any Intellectual Property Rights (as defined in Section 9.1).
What this means: We’ll create your prototype based on what you ask for in the Statement of Work. If you need to change something in the Statement of Work, let us know using the Change Order, so that we deliver a great prototype that you’ll be happy with. We also run a business, so if we need to change anything on our side, we’ll let you know.
3.1 Concurrently upon execution of this Agreement, the Client shall provide ICBY with such information as required by ICBY as part of the on boarding process including but not limited to Client’s business number, tax number or similar governmental registration or identification numbers.
What this means: We’ll ask for different types of information. Some of it helps us deliver a great prototype to you, while some of it helps us stay compliant as a business and with our funders.
4. Fees: We will charge you for what it costs us to deliver your prototype
4.1 The fees payable by the Client for the provision of Services under this Agreement (the “Fees”) are detailed in a Statement of Work and/or its related Change Order.
4.2 ICBY will submit invoices for all Fees incurred by it in respect to Services performed on a monthly basis and any invoice submitted shall be due and payable within thirty (30) days from the date of its receipt by the Client.
4.3 To the extent permitted by law, ICBY reserves the right to charge the Client interest of one and one-half percent (1.5%) per month (18% per annum) on the overdue balance of any invoice previously submitted to the Client. Furthermore, if the Client is late with payments, or ICBY has reasonable cause to believe the Client may not be able to pay, ICBY may (a) stop all Services under this Agreement until assurances of payment by Client (satisfactory to ICBY) are received or payment is received; (b) demand prepayment for orders; (c) delay shipments; and, (d) to the extent that ICBY’s personnel cannot be reassigned to other billable work during such stoppage and/or in the event restart costs are incurred, ICBY will invoice the Client for such additional fees and must receive payment for such additional fees before the Services can resume.
4.4 Reasonable travel and living expenses incurred by ICBY’s personnel directly as a result of the performance of Services for travel outside the metropolitan area of the City of Ottawa shall be invoiced to and paid by the Client at cost. Invoices for these travel and living expenses shall be supported by copies of all applicable vouchers and receipts.
4.5 The Client shall pay ICBY the cost of all out-of-pocket expenses and disbursements such as long-distance telephone charges, postage fees and all shipping costs to the extent that these expenses and disbursements are incurred directly as a result of the performance or delivery of Services.
4.6 The Client shall pay ICBY the cost of all customs, fees, duties, sales taxes and other related costs incurred by ICBY directly as a result of the provision or delivery of Services or materials to the Client hereunder. The Client shall, however, have no liability or responsibility for the withholding, collection or payment of income taxes, unemployment insurance, statutory or other taxes or payments of any other nature on behalf or in respect of or for the benefit of ICBY or any other person.
What this means: We run a business, and sometimes it costs a bit more to get a great prototype to you. We’ll talk to you about any additional costs that might come up, and hope you understand that its only fair to pass that cost on to you. If you can’t pay us, we unfortunately may have to stop working on any prototypes we have for you.
5. Access to Prototype Lab
The Client shall not attend the ICBY Prototyping Lab without an advance appointment mutually agreed to with ICBY. If access to the ICBY Prototyping Lab is permitted by ICBY, Client agrees to observe all safety and security requirements and measures in effect at that time.
What this means: We want to make sure you’re safe. Please let us know if you’re coming to visit, and follow all our safety guidelines when you do.
6. No Warranty; Disclaimer: Our service is not a guarantee that your product is ready for market
6.1 AS BETWEEN ICBY AND THE CLIENT, THE CLIENT SOLELY ASSUMES ALL RESPONSIBILITIES AND ANY REQUIRED OBLIGATIONS TO CERTIFY AND TEST SUCH DELIVERABLES AND INDEPENDENTLY ASSESS THEIR VIABILITY, SAFETY AND APPROPRIATENESS FOR ALL PROPOSED USES AND INTENDED USES.
6.2 THE SERVICES AND ALL DELIVERABLES ARE PROVIDED TO CLIENT “AS IS” AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OR LAW OR OTHERWISE, REGARDING THEM OR ANY OTHER DELIVERABLES OR SERVICES PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. ICBY, ITS LICENSORS AND SUPPLIERS, DISCLAIM ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT WITH RESPECT TO ANY SERVICES OR DELIVERABLES USED OR SUPPLIED IN THE COURSE OF PERFORMING THE SERVICES. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS
REGARDING PERFORMANCE OF THE DELIVERABLES OR THE SERVICES THAT IS NOT CONTAINED IN THIS SECTION, WILL BE DEEMED TO BE A WARRANTY. CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, CONDITION OR WARRANTY MADE BY ICBY, OR ANY OTHER PERSON ON ICBY’S BEHALF.
What This Means: We are providing a service based on the tools we have, and the designs and information that you give us, with the hope of helping your business to succeed. This is on a best effort basis – our services do not come with a guarantee, and the version of your product that you bring to market is your responsibility.
7. License: We need your information to do the work
The Client hereby grants ICBY a non-exclusive license during the Term of this Agreement to use the Client’s Intellectual Property Rights as necessary to perform ICBY’s obligations under this Agreement. Third party intellectual property, including currently available public information or licensed creative commons may be used throughout the creation of the Deliverables. Where such materials are used, they will be identified by Client for licensing disclosure. The Client acknowledges that ICBY will develop expertise across multiple industries with various clientele and nothing herein shall create an exclusive relationship as between the Parties and the Client consents to ICBY using and developing its own expertise and processes across multiple industries and with multiple clients. ICBY will not require consent from the Client to engage in contracts with other clients for any matter.
What this means: For as long as we’re working with you, if you send us your designs or plans we will treat them confidentially and only use them to deliver a service to you. If we don’t have the knowledge and resources in house to deliver your design or prototype, we can get it from elsewhere.
8. Intellectual Property Rights: What’s yours is yours only.
8.1 “Intellectual Property Rights” means all intellectual property rights of whatever nature including inventions, patents (and applications for the same), copyright, the benefit of any waiver of Moral Rights, design rights, registered designs (and applications for the same), trade and service marks (registered and unregistered and applications for the same), know-how, trade secrets and duties or obligations of confidence, mask work rights, topography rights and other rights in semiconductor chips, rights in or relating to databases, trade names, domain names and business names and all other similar or analogous rights, whether registered or unregistered, anywhere in the world.
8.2 “Moral Rights” means any and all moral rights arising under the Copyright Act (Canada) as amended (or any successor legislation of similar force and effect) or similar legislation in other applicable jurisdictions or at common law that such individual, as author, has with respect to any copyrighted works prepared by such individual hereunder including, without limitation, the right to attribution of authorship, and the right to restrain any distortion, mutilation or other modification of
such work and the right to prohibit any use of any such work in association with a product, service, cause or institution that might be prejudiced to such individual’s honour or reputation.
8.3 All rights, including all Intellectual Property Rights, in and to any materials or any technology, data or other information and documentation related thereto, which have been provided by Client to ICBY in connection with the performance of any of the Services are owned and shall continue to be owned by Client or its suppliers or licensors. ICBY shall deliver any or all such materials and information to Client immediately upon the request of Client.
8.4 All Intellectual Property Rights created by ICBY during the course of performing any Services hereunder, including the Deliverables shall transfer and be owned solely and exclusively by Client upon full payment for such Deliverables in accordance with Section 15.2.
8.5 Client agrees that ICBY shall retain all Intellectual Property Rights it possessed prior to the Effective Date or which it develops after such date where such development is not related to the Services provided hereunder or to the Deliverables delivered hereunder.
What this means: What you give us to complete the service for you and whatever design or prototype we produce for you will always only belong to you. We don’t have any claim to it.
9. Indemnification: We are just trying to help
9.1 The Client shall indemnify and save harmless ICBY and any related Parties, employees, agents, volunteers, representatives, officers or directors (“Indemnified Parties”), from any claims, demands, losses, damages, costs, charges, expenses (including reasonable legal fees), actions and other proceedings, made or brought against, suffered by, imposed, incurred by or assessed against any Indemnified Parties, directly or indirectly arising out of, resulting from or sustained by
(a) the fault or negligence of Client, any related parties or Client’s employees, agents, volunteers, representatives, officers or directors; or
(b) the use or copying by ICBY of any information or material supplied by Client while providing the Services; or
(c) the compliance by ICBY with any instructions or specifications provided by Client with respect to any Services; or
(d) Client’s breach of this Agreement; or
(e) resulting from any injury to any person or property or death; or
(f) any failure of any Deliverables to comply with any safety standards and/or environmental regulations; or
(g) any actual or threatened injury or damage or death to any person or property caused, or alleged to be caused, by any Deliverables; or
(h) any infringement of the Intellectual Property Rights of any third party by any Services and/or Deliverables.
9.2 The indemnities herein shall survive the termination of this Agreement and the completion of the Services contained herein.
What This Means: We can’t be held responsible or accountable for what happens with your product or business; it’s your product and you call the shots. We will do our best to produce the best design or prototype of your product we can, and even be there to congratulate you on your successes.
10. Patent, Trademark, Trade Secret and Copyright Infringement
10.1 Client covenants, warrants and represents that all Services or materials or both provided or to be provided to the Client do not infringe any third party Intellectual Property Rights with respect to or in connection with the intended use of the Services and/or Deliverables.
What this means: Whatever you ask us to work on should be your original work, and not someone else’s that you’ve poached for your own benefit
11. Assumption of Risks and Release: If your design is deadly, we can’t be blamed.
CLIENT IS AWARE AND UNDERSTANDS THAT THE USE OF THE DELIVERABLES INVOLVE MANY RISKS, DANGERS AND HAZARDS, INCLUDING BUT NOT LIMITED TO THE RISK OF SERIOUS INJURY, DEATH OR PROPERTY DAMAGE. CLIENT ACKNOWLEDGES THAT THEY ARE VOLUNTARILY PARTICIPATING AND SOLELY RESPONSIBLE FOR THE USE OF THE DELIVERABLES AND FREELY ACCEPT AND FULLY ASSUME ANY AND ALL OF THE RISKS, DANGERS AND HAZARDS INVOLVED AND THE POSSIBILITY OF INJURY, DEATH OR PROPERTY DAMAGE, WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE.
Client hereby expressly waives and releases any and all claims which Client has or may in the future have against the IBCY, its affiliates, and their respective directors, officers, employees, agents, representatives, shareholders, successors and assigns (collectively, “Releasees”) on account of injury, death or property damage arising out of or attributable to the use of the Deliverables, due to any cause whatsoever, including without limitation negligence of the ICBY or any other Release, breach of contract, or breach of any statutory or other duty of care owing under legislation or otherwise. Client covenants not to make or bring any such claim against ICBY or any other Release, and forever release and discharge ICBY and all other Releasees from liability under such claims.
What this means: Some prototypes and designs are fun, and some can be dangerous – we work with all of them. If yours is dangerous and we deliver a prototype of it to you, we can’t be blamed if it causes harm, injury or death. You take the responsibility on yourself.
12. Privacy and Client Data
For the purposes of this Agreement, “Personal Information” shall have the meaning ascribed to it in the Personal Information Protection and Electronic Documents Act (Canada). Both Parties shall comply with any applicable privacy legislation or regulation, including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) in the, collection, use or disclosure of Personal Information, as well as the Canadian Anti-Spam Legislation. Each Party shall obtain the necessary consents in order to provide the other Party any Personal Information necessary to perform its obligations hereunder.
The Client agrees to provide ICBY up-to-date information about its business (the “Business Data”), including but not limited to business address, business number, employment numbers, and in order for us to receive funding for these services, we require further information such as share capital raised, revenues/sales, intellectual property created, and ownership details, for the purposes of providing the Services or Advice.
The Client agrees to provide the Business Data by survey or by other collection means from time to time throughout the period that this Agreement is in force. You agree to offer this data in an accurate and timely manner.
ICBY agrees to treat the Client’s Business Data in strict confidence, in accordance with the Confidentiality guidelines outlined in this Agreement. Invest Ottawa may use aggregated Business Data, which is not identifiable to any one Client, for reasons such as but not limited to public reports or to improve its services.
What This Means: Like your designs, prototypes, and business data, we also understand the personal information we receive about you or other members of your team is important to protect and keep confidential.
We may ask you periodically to share relevant information about your business with us. We need to collect data and provide this to our funders, such as the Province of Ontario and the Government of Canada to demonstrate that the companies we are supporting are creating a positive economic impact in the region. We demonstrate this impact by collecting your (client) data and using it to show our funders that the companies we support are in fact creating jobs and generating revenues. This is essentially Invest Ottawa’s scorecard with our funders.
13. Confidentiality: We won’t disclose your information except to funders or to our partner organization, Invest Ottawa, when necessary
13.1 “Confidential Information” means all information and data, including, without limitation, all business, planning, performance, financial, product, trade secret, technical, sales, marketing, contractual, employee, supplier and Client information and data, disclosed orally, in writing or electronically to one Party by the other hereunder.
13.2 Each party hereto is willing to disclose the Confidential Information to the other party, upon the terms and conditions herein contained, for the purpose of the Client receiving and ICBY providing recommendations and services to the Client respecting its business. Such recommendations and services may include sharing the Client’s Confidential Information with partner organizations such as Invest Ottawa with a view to enable and accelerate the growth of the Client’s business and success (the “Purpose”).”
13.3 Confidential Information does not include any information or data which (i) is or becomes publicly known without breach of this Agreement or is released by the disclosing Party to the general public, (ii) is approved in writing for disclosure by the receiving Party without restriction by a duly authorized officer of the disclosing Party, (iii) is independently developed by the receiving Party without reference to any Confidential Information provided by the disclosing Party, (iv) becomes known to the receiving Party from a source other than the disclosing Party without breach of this Agreement, or (v) is required by law to be disclosed, provided that the receiving Party has given prior written notice of such disclosure requirement to the disclosing Party and the receiving Party has had an opportunity to make such disclosure subject to a protective order or confidentiality agreement.
13.4 Each Party agrees not to disclose any Confidential Information of the other Party to any third party, except to those of its employees, agents or subcontractors who have a need-to-know such information, and then only to the extent necessary to perform under this Agreement. Each Party shall maintain the confidentiality of the other Party’s Confidential Information in its possession by exercising the same security measures it normally exercises with respect to its own Confidential Information, but at all times no less than a reasonable degree of care. To this end, each Party agrees to take appropriate action by way of instructions and executed agreements with its employees, consultants or other agents who are permitted access to Confidential Information, to ensure that such employees, consultants and other agents understand the Parties’ confidentiality and non-disclosure obligations hereunder.
13.5 Upon the request of a Party, and in any event upon the termination or expiration of this Agreement, the other Party shall immediately return to the disclosing Party all materials, including all copies in whatever form, containing any Confidential Information which are in their possession or under its control.
What This Means: We understand your designs, prototypes, and business data are important, and often strategic, so we take our obligation for confidentiality very seriously. We do, however, have to disclose some business information to our funders to demonstrate impact. We also value our business information, and ask that you treat it the way you’d treat your own.
14. Nonsolicitation: Please don’t steal our staff
The Client agrees that during the Term of this Agreement and for a period of one (1) year after the termination of it, it shall not, solicit for employment any of ICBY’s employees who were or are assigned to perform work hereunder or any subcontractors utilized by ICBY and identified to the Client in writing.
What this means: You’ll be nice to us and won’t poach any of our staff.
15. Title and Risk of Loss: Have a backup copy of your work because we won’t
15.1 All work, including but not limited to the materials, data, specifications, tapes and programs provided to ICBY shall be at all times responsibility of the Client to protect from loss, damage or destruction. The replacement of any such work lost, damaged or destroyed after delivery to ICBY shall be at the sole expense of the Client. Client understands that it is solely responsible for insuring against any such loss and ICBY will not insure Client for any such loss.
15.2 Title to Deliverables shall pass to Client upon full payment for such Deliverables.
What this means: Please backup any design files you send us. While we’re responsible people, freak accidents can happen at any time. It’s your responsibility to make sure you protect your information. We can’t be help responsible or charged for that loss.
Neither this Agreement nor any interest in it or under any request for Services authorized under it may be assigned or ceded in any manner by Client without the prior written consent of ICBY, and such consent shall not be unreasonably withheld.
What this means: If you want to change how we work together, tell us. This includes if your product (that we’re working on) or your business gets bought or sold.
17. Liability: We are not liable if your product doesn’t succeed
17.1 ICBY ACCEPTS NO LIABILITY FOR USE OF OR RELIANCE BY CLIENT OR THIRD PARTIES OR BOTH ON THE SERVICES OR DELIVERABLES, INCLUDING WITHOUT LIMITATION, LIABILITY RESULTING FROM ANY CLAIMS, HOWSOEVER CAUSED, EVEN IF ICBY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE CLIENT ACCEPTS SOLE RESPONSIBILITY AND LIABILITY FOR ITS OR ANY THIRD PARTY’S USE AND RELIANCE OF THE SERVICES OR DELIVERABLES.
17.2 IN NO EVENT SHALL ICBY BE LIABLE UNDER THIS AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY DAMAGES FOR
BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY OTHER THEORY OF LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17.3 IN NO EVENT SHALL ICBY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE MAXIMUM SUM OF THE FEES RECEIVED BY ICBY UNDER ALL ACTIVE STATEMENTS OF WORK UNDER THIS AGREEMENT FOR THE PRECEDING SIX (6) MONTHS BEFORE THE CLAIM IS MADE.
What This Means: While we will work with you to help you produce the best prototype possible, we can’t be held legally or financially accountable in the unfortunate circumstances of your product’s or business’ loss or failure.
18. Duration of Agreement: We’re in it for the long haul
18.1 This Agreement shall commence on the Effective Date and, subject to the termination hereof in accordance with the terms of this Agreement, shall continue in full force and effect for a term of one (1) year (the “Initial Term”). This Agreement shall renew automatically for successive twelve (12) month periods (each a “Renewal Term”) unless terminated by notice from either Party at least thirty (30) days prior to the next renewal date or unless terminated in accordance with the terms hereof. The then-current Initial Term or Renewal Term will be the “Term”.
What this means: We may be working together for at least a year. If you want to walk away, let us know 30 days before the end date you have in mind.
19. Termination: Either of us can walk at any time
19.1 This Agreement may be terminated by:
(a) either Party upon thirty (30) days written notice to the other Party; or
(b) either Party in the event of the default by the other Party in the performance of any other material term or condition of this Agreement and such default continues uncured for a period of ten (10) days after the delivery of written notice thereof by the terminating Party to the other Party; or
(c) either Party upon the assignment or attempt to assign the Agreement to a third party (except as permitted in the A
(d) ICBY in the event of a default by the Client of its payment obligations hereunder to and such default continues for a period of five (5) days after the delivery of written notice thereof by ICBY to the Client; or
(e) ICBY immediately, if Client ceases to conduct business in the normal course, becomes insolvent or bankrupt or makes an assignment for the benefit of Client’s creditors, or if a receiver is appointed in respect of Client’s property, or if Client is otherwise unable to carry on business.
What This Means: We’re not bound to keep working together if one or both sides decide it’s not working out.
20. Effect of Termination: We’ll both get what’s owed to us
20.1 Upon the termination of any request for Services under this Agreement or of this Agreement as the case may be, ICBY shall invoice the Client for all work performed and/or costs incurred up until the effective date of termination.
20.2 Upon receipt of payment from the Client, at Client’s expense ICBY shall return to the Client all completed programs, reports, data, specifications, diagrams and all other material generated during the performance of the request for Services, or provision of the Services, as the case may be, and further ICBY shall return all Confidential Information furnished to ICBY by the Client pursuant to the request for Services or Services under this Agreement.
What this means: If we decide to stop working together, we get anything you owe us, and we send you anything that belongs to you.
21.1 All notices required hereunder will be made in writing to the addresses set out below:
To ICBY, addressed to it at:
INNOVATION CENTRE AT BAYVIEW YARDS
7 Bayview Road Ottawa, ON, Canada, K1Y 2C5
Attention: Joanne Gardner
To the Client, address to it at:
21.2 Any notice or communication under the terms of this Agreement must be: (a) sent by registered mail, return receipt requested, postage prepaid, (b) given in person, or (c) sent by email, with email delivery confirmation requested. Any notice or other communication shall be deemed to have been received: (a) on the date it was remitted if delivered in person, (b) five (5) business days after being sent if sent by registered mail, or (c) upon receipt of delivery confirmation if sent by email. Either Party may change its contact information for notice by giving notice to the other Party as provided in this section.
22.1 Entire Agreement. This Agreement (and all Statement of Works(s) and related Change Orders attached hereto) constitutes all of the Agreements between ICBY and the Client pertaining to the subject matter of it and supersedes all prior agreements, undertakings, negotiations and discussions, whether oral or written, of the Parties. No amendment, supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Party hereto to be bound thereby.
What this means: This is the main document that outlines how we work with each other.
22.2 Waiver. No waiver of any other provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions (whether or not similar) nor shall the waiver constitute a continuing waiver unless otherwise expressly provided.
What this means: If you don’t like one part of the agreement with us, and we agree to let it slide; you’re still bound by everything else in the agreement.
22.3 Survival. Those provisions of this Agreement that should survive termination or expiration of this Agreement will survive the termination or expiration of this Agreement including Sections 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 20, 21 and 22 shall survive the termination and/or expiration of this Agreement.
What this means: Like your product or business, some things in this agreement deserve to live on forever in all our hearts and minds.
22.4 Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
What this means: We’re doing you a solid, but it doesn’t make us business partners or employees.
22.5 Publicity. The Client grants ICBY non-exclusive rights to showcase the planning, creation, prototyping, testing, and the development of all materials through web and physical showcase for the sole purpose of marketing its services to the public. The Client will receive a non-exclusive license of all such identified materials for the purposes of their own promotional use. Notwithstanding anything else contained herein, ICBY shall have the exclusive right to prohibit the Client from utilizing the ICBY name or logo.
What this means: We might take videos or pictures of our work with and for you to promote our business. But don’t worry, it won’t be any of your IP or anything confidential.
Headings and Interpretation: It’s the spirit of the law and the content that matter
22.6 Headings. Headings are not to be considered part of this Agreement, are included solely for convenience and are not intended to be full or accurate descriptions of the content of the Sections.
22.7 Interpretation. In this Agreement, words importing the singular number include the plural and vice versa, words importing the masculine gender include the feminine and neuter genders; and words importing persons include individuals, sole proprietors, corporations, partnerships, trusts and unincorporated associations.
What this means: The section headings don’t mean anything, only the content within or below each heading. One general word can refer to many other things in it’s class, and will be legally acceptable.
22.8 Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the province of Ontario.
What This Means: This agreement will be under Ontario’s jurisdiction.
22.9 Dispute Resolution. It is the Parties’ intention that any dispute between them in relation to this Agreement should be settled amicably, by consultation, negotiation, and mutual agreement. The Parties shall use reasonable efforts to resolve any dispute arising out of this Agreement prior to invoking any right to formal legal proceedings on a “without prejudice” basis. If the Parties are unable to resolve a dispute, either Party may escalate the dispute to the [senior executive level]. If the [senior executives] of both Parties are unable to resolve the dispute within [ten (10)] days after escalation or a longer period mutually agreed to by the [senior executives], the Parties may defer the dispute to formal legal proceedings. In the case of ICBY, the Senior Executive is Richard Quigley, VP, Infrastructure.
What this means: Please talk to us if you’re not happy with something. If we can’t resolve it together within 10 days, we can bring in our Senior Executives to help us resolve the issue. If that doesn’t work, then we can bring in lawyers.
Arbitration: There’s a process to follow if we have to go to court to resolve our differences 23.10 Arbitration. Subject to the Parties’ failure to resolve the matter in accordance with Section 22.8 above, any controversy, dispute, disagreement or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity or termination, shall be finally and conclusively resolved by arbitration under the ADRIC Arbitration Rules of the ADR Institute of Canada, Inc. The following provisions shall govern any arbitration hereunder:
(a) The arbitration shall take place in Ottawa, Ontario;
(b) The legal seat of arbitration shall be Ottawa, Ontario;
(c) There shall be three arbitrators. The Parties agree that one arbitrator shall be appointed by each Party within twenty (20) days of receipt by the respondent of the Notice of Request for Arbitration, or in default thereof, the ADR Institute of Canada, Inc. shall appoint the arbitrator(s) in accordance with the ADRIC Arbitration Rules. The third arbitrator, who shall act as Chair, shall be appointed by agreement of the two Party-appointed arbitrators within fourteen (14) days of the appointment of the second arbitrator or in default of such agreement, by the ADR Institute of Canada, Inc. in accordance with the ADRIC Arbitration Rules;
(d) The language of the arbitration and award shall be in English;
(e) The Parties shall equally share the fees of the arbitrators and the facility fees;
(f) The Parties shall each bear their own legal costs and expenses of the arbitration;
(g) Any decision of the three arbitrators shall be final and binding on the Parties and their respective successors and assigns and to the extent permitted by law there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law.
(h) The Parties agree that the arbitrators in any such arbitration shall not be authorized to award any punitive damages or indirect damages in connection with any controversy or a claim settled by arbitration hereunder.
What this means: We believe in playing well with others, but if you don’t like to play fair and we go the legal route, any dispute we have will be in English, in Ontario, governed by Ontario laws, and the decision made by the legal body will be final. You’ll also have to pay your own legal fees and split the cost of the space where the proceedings take place with us.
22.11 Invalidity of Provision. The invalidity or unenforceability of any provision of this Agreement or any covenant in it shall not affect the validity or enforceability of any other provision or covenant in it and the invalid provision or covenant shall be deemed to be severable.
What this means: If one section of this agreement doesn’t hold up legally, it doesn’t mean the rest won’t.