SIMNET MSA

SIMNET MASTER SERVICES AGREEMENT (MSA)

• 1. Composition of Agreement.
  • 1.1. This agreement includes this Master Services Agreement (“MSA”), any Statement(s) of Work that refers to this MSA, those Terms and Conditions applicable to the specific Services ordered hereunder which references this MSA and that is signed by both Parties (“Terms and Conditions”), and the Schedules referenced within such Terms and Conditions, and together constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto (the “Agreement”). This Agreement cannot be altered, amended or modified except in writing that is agreed to by an authorized senior representative of each party. Any term not defined herein shall have the definition ascribed thereto in the accompanying Terms and Conditions or Schedule(s).
• 2. Definitions.
  • 2.1. “Billing Commencement Date” shall be the date defined in the Terms and Conditions attached hereto;
  • 2.2. “Fees” shall have the meaning set out in Section 4.1 of this MSA;
  • 2.3. “Services” shall mean the Services as defined in the applicable Terms and Conditions attached hereto;
  • 2.4. “Service Levels” shall mean the Service Levels defined in the applicable Terms and Conditions attached hereto;
  • 2.5. “Statement of Work” or “SOW” shall have the meaning ascribed in the Terms and Conditions attached hereto; and
  • “Term” has the meaning set out in the or SOW.
• 3. Delivery and Term.
  • 1.1. Delivery of Services. Services are acquired from SIMNET by using SOW(s). Each SOW must be executed by both SIMNET and the Customer prior to becoming effective. Upon each SOW becoming effective, it shall, along with the applicable Terms and Conditions and the Schedules referenced therein, form a part of this Agreement and be governed by the terms and conditions contained herein.
  • 1.2. Term and Renewal. Services for which the SOW states a “Total Monthly Recurring Fee” shall commence on the Billing Commencement Date and shall continue until the expiry of the Term unless otherwise terminated as set forth in this Agreement. This Agreement shall automatically renew for successive 12-month terms unless either party provides written notice of non-renewal at least 30 days prior to the end of the current term.
• 4. Fees and Payment.
  • 4.1. Fees. Fees shall include any one or more, as may be applicable, of any monthly, quarterly or annually recurring fee, one time fees such as set up, Remote Hands Fee and/or Professional Service Fee as stated in the SOW, and any other fees charged by SIMNET for ad hoc Services requested or consumed by Customer and provided by SIMNET and that have been agreed to in writing by Customer. In consideration for SIMNET’s delivery of the Services, Customer shall pay the Fees as follows:
    • 4.1.1. any recurring fee set out in the SOW on a monthly, quarterly, annual (or other schedule as stated in the SOW) basis in advance within 30 days of date of invoice, invoicing to commence on the Billing Commencement Date. Unless otherwise noted in the applicable SOW, the initial invoice shall include two months of recurring fees, the second month of which to be credited to the last month of the Term or Renewal Term, as applicable. Any partial months shall be invoiced on a prorated basis;
    • 4.1.2. any set up fee set out in the SOW are due on date of invoice;
    • 4.1.3. any Professional Service Fee set out in the SOW are due on date of invoice ; and
    • 4.1.4. any one time Fees which have been agreed to in writing by Customer, including but not limited to Remote Hands Fees, are due on date of invoice .
  • 4.2. Taxes. In addition to the Fees, Customer shall be responsible for paying any applicable sales, use, excise, and value added or similar sales taxes or assessments imposed upon the Services by any federal, provincial/state, or local government authority, exclusive of taxes based upon SIMNET’s income or payroll. If Customer is required to withhold any taxes from payments owed to SIMNET under this Agreement, then the amount of the payment due will automatically be increased by the Customer by the amount of such tax, so that the amount actually received by SIMNET equals the amount invoiced by SIMNET or otherwise due. Upon request, Customer shall promptly furnish SIMNET with all official receipts evidencing payment of taxes due under or in relation to this Agreement to the appropriate taxing authority.
  • 4.3. Interest. Interest shall begin to accrue on those amounts which remain unpaid and that are not subject to a good faith dispute on the thirty-first (31st) day after the date of each invoice at the rate of 2% per month (24% per year) until paid in full.
  • 4.4. Renewal. SIMNET may increase the Fees for any Renewal Term upon 30 days notice prior to the commencement of such Renewal Term. In any case, SIMNET has the right to increase the Fees by no more than the national Consumer Price Index on each annual anniversary during the Term.
  • 4.5. Disputes. Notwithstanding the foregoing, Fees reasonably disputed by Customer (along with late fees attributable to such amounts) shall not be due and payable if, and only if, Customer:
    • 4.5.1. pays all undisputed Fees on or before the date specified in section 4.1 hereof;
    • 4.5.2. presents a written statement of any billing or other discrepancies to SIMNET in reasonable detail together with appropriate supporting documentation no later than 20 days after the date of such invoice; and
    • 4.5.3. Negotiates in good faith with SIMNET for the purpose of resolving such dispute within ten (10) days of submitting such written statement to SIMNET. In the event such dispute is mutually agreed upon and resolved in favour of SIMNET, Customer agrees to pay SIMNET the disputed Fees together with any applicable late fees within five (5) days of the resolution. In the event such dispute is mutually agreed upon and resolved in favour of Customer, Customer will receive a credit for the disputed Fees and any applicable late fees actually invoiced, plus a credit equal to five percent (5%) on future invoices. In the event the dispute is not resolved in such thirty (30) day period, either party may apply to a court of competent jurisdiction for resolution.
    • 4.5.4. Service Suspension. SIMNET may, on the thirty-first (31st) day after the date of any invoice that has not been disputed pursuant to this section 4.5, suspend the provision of all or any part of the Services, including but not limited to the Service Levels (the “Suspension Period”) for so long as Customer has not paid the subject invoice in full. In the event of a suspension of Services, the Term shall, subject to any right of Termination contained in the Terms and Conditions attached hereto, be extended by an amount of time equal to that of the Suspension Period.
• 5. Warranties, Liability and Indemnity.
  • 5.1. SIMNET Warranty. SIMNET represents and warrants that: (i) the Services shall be performed in a professional and workmanlike manner and in a manner that materially complies with the terms of this Agreement (ii) neither the Services nor any software to which Customer is granted a license hereunder infringe or misappropriate any third party right, title or interest and that SIMNET has all rights and licenses necessary to perform the Services and grant the licenses hereunder; and EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SIMNET MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SIMNET DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEY WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION. SIMNET DOES NOT WARRANT THAT THE SERVICES WILL BE CAPABLE OF ACHIEVING ANY PARTICULAR RESULT OR RESULTS IN CUSTOMER’S BUSINESS OPERATIONS. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH SIMNET USES COMMERCIALLY REASONABLE EFFORTS TO ENSURE THE PROTECTION OF CUSTOMERS DATA, SIMNET DOES NOT PROVIDE OR GUARANTEE ABSOLUTE SECURITY.
  • 5.2. Limitation of Liability. Except for claims arising from Sections 5.3, 5.4 or 6 of this Master Services Agreement and any claims specifically exempted in any Terms and Conditions attached hereto, neither SIMNET nor Customer shall be liable to the other under the Agreement in connection with any single event or series of events for any cover, set-off, special, indirect, consequential, exemplary or punitive damages including, but not limited to, lost profits, lost business revenue, lost or damaged data, failure to realize expected savings, or other commercial or economic loss of any kind even if the other party has been advised of the possibility of these losses or damages, and regardless of the form of action, whether in contract or tort, including negligence or based upon any other legal or equitable theory. Furthermore, Customer agrees that Customer’s sole and exclusive remedy for SIMNET’s failure to provide the Services in accordance with any applicable Service Levels shall be as set out in such Service Levels. Notwithstanding anything to the contrary contained in this Agreement, in no event will SIMNET’s liability to Customer, or to that of its directors, officers, employees or users of the Services exceed Two Million Canadian Dollars ($2,000,000.00 CDN).
  • 5.3. Intellectual Property Indemnity. If either party (the “Indemnitee”) promptly notifies the other (the “Indemnitor”) of a claim against the Indemnitee that any of the Services or Customer supplied hardware, software or data, as the case may be, infringes a presently existing proprietary right of a third party, and if the Indemnitee specifies in such notice that the claim is based to any extent upon an alleged infringement enforceable in Canada of any portion of the Indemnitor’s properties (Services or Customer supplied hardware, software or data, as the case may be), the Indemnitor, with respect to and to the extent of the portion of the claim pertaining to the Indemnitor’s properties, shall indemnify and defend such claim at its expense and pay any costs or damages that may be incurred or finally awarded against the Indemnitee. THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
  • 5.4. PIPEDA/ CASL. Notwithstanding any limitation of liability otherwise contained in the Agreement, SIMNET agrees that it shall indemnify, defend and hold Customer, its officers, directors, employees and contractors harmless from any and all claims, costs, liabilities and damages which arise from or relate to SIMNET’s breach of applicable laws. Notwithstanding any limitation of liability otherwise contained in the Agreement, Customer agrees that it shall indemnify, defend and hold SIMNET, its officers, directors, employees and contractors harmless from any and all claims, costs, liabilities and damages which arise from or relate to Customers failure to comply in the conduct of its business with both the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) and the Canada Anti-Spam Law (S.C. 2010, c.23) or other similarly applicable federal or provincial/state statute.
  • 5.5. No Control. SIMNET represents and warrants that (i) it does not and cannot use or process any Content or other data, as defined below, that is stored or processed using the Services; (ii) it does not and cannot access or disclose any Content or other data stored or processed using the Services; (iii) Customer and/or VAR in their sole determination control the type of Content and other data stored or processed using the Services and the level and type of security applied to Customer or VAR controlled applications storing or processing such data. Based on the foregoing representations and warranties by SIMNET, Customer acknowledges that SIMNET does not own or have any control over the content, availability, accuracy or any other aspect of any information, data, files, pictures or content in any form or any type (“Content”) made accessible or available by or to Customer or Customer’s end users through the use of the Services and SIMNET does not monitor the use of the Services by Customer or its end users except as provided in this Agreement. Except to the extent that SIMNET breaches its representations and warranties set out herein in relation to the Content or SIMNET’s negligent or willful misconduct actions (in which case, no indemnification by Customer will be provided), Customer shall indemnify, defend and reimburse SIMNET for, and hold SIMNET harmless from, any and all claims or lawsuits of any person and resulting costs (including reasonable attorney’s fees), damages, losses, consequences, awards and judgments:
    • 5.5.1. based on the use by Customer or any third party of Content retrieved from or produced by the Services; or
    • 5.5.2. for injury to any person or property attributable in whole or in part, directly or indirectly, to any operation, function or malfunction of the Services or any part thereof.
  • 5.6. Based on the foregoing representations and warranties by SIMNET at section 5.5 hereof, SIMNET shall not have any liability or responsibility with respect to the privacy or confidentiality of any data. Customer will defend or settle any claim brought against SIMNET arising from or related to any VAR or Customer’s failure to comply in the conduct of its business with applicable Privacy Laws in force from time to time, including, but not limited to, the Gramm Leach Bliley Act (1999), the Health Insurance Portability and Accountability Act (1996), the Personal Information Protection and Electronic Documents Act, the Health Information Technology for Economic and Clinical Health Act (HITECH) and Canada’s Anti-Spam Law (S.C. 2010, c.23), each as may be applicable and each as may be amended and will indemnify SIMNET against all damages and costs awarded against SIMNET by a court of competent jurisdiction by final order from which no appeal is taken or for which the time for appealing has expired.
  • 5.7. In rendering its obligations under this Agreement, without limiting other applicable performance warranties, SIMNET represents and warrants to Customer as follows: (a) SIMNET is in good standing in the province of its incorporation, and; (b) SIMNET shall secure or has secured and will maintain all authorizations, permissions, licenses, regulatory approvals, registrations and consents, including without limitation, registration with the appropriate taxing authorities for remittance of taxes, and; (c) as of the Effective Date, there are no actions, suits or proceedings pending, or to the knowledge of SIMNET threatened against SIMNET alleging infringement, misappropriation or other violation of any intellectual property rights related to any Service contemplated by this Agreement.
• 6. Confidentiality.
  • 6.1. Confidential Information. The parties acknowledge that it will be necessary for each of them to disclose or make available to each other information and materials, including but not limited to business information concerning a party and its clients, specifications, research, software, trade secrets, discoveries, ideas, know-how, designs, drawings, flow charts, data, marketing plans and financial or business information that is disclosed whether orally visually or in a material form, (collectively the “Confidential Information”) that may be confidential or proprietary or may contain valuable trade secrets, and that such information may already have been disclosed prior to the Commencement Date. Prior to disclosure, the disclosing party shall use reasonable efforts to designate all Confidential Information by marking the information with the word “Confidential” or similar wording. However, Customer and SIMNET agree that, even if not so marked, any Customer Software, SIMNET Software, SIMNET Hardware, SIMNET Tools, information concerning the Facility and all documents, descriptions and embodiments of any of them (each as may be defined in the applicable Terms and Conditions), shall be deemed Confidential Information.
  • 6.2. Non-Disclosure. Both during and after the Term each of the parties agree:
    • 6.2.1. to use commercially reasonable efforts to protect the Confidential Information of the other party from unauthorized use or disclosure and to use at least the same degree of care with regard thereto as it uses to protect its own Confidential Information of a like nature;
    • 6.2.2. to use and reproduce the Confidential Information of the other party only as permitted under this Agreement or as needed to perform its duties hereunder; and
    • 6.2.3. not to disclose or permit access to the Confidential Information of the other party to any third party, without the other party’s prior written consent.
  • 6.3. Exceptions. No obligations will arise hereunder in relation to Information if it:
    • 6.3.1. is already, or otherwise becomes, publicly known by third parties as a result of no act or omission of the receiving party;
    • 6.3.2. is lawfully received, after disclosure hereunder, from a third party having right to disseminate the information without restriction on disclosure;
    • 6.3.3. is furnished to others by the disclosing party without restriction on disclosure; or
    • 6.3.4. Can be shown by the receiving party to have been independently developed by such party prior to the execution of this Agreement.
  • 6.4. Injunctive Relief. The parties agree that any breach by either party or any of its officers, directors, or employees, of any provisions of this Section 6 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies at law or in equity.
• 7. General.
  • 7.1. Headings. Section headings are provided for convenience of reference only and do not constitute part of the Agreement. Any references to a particular section of this Agreement shall be deemed to include reference to any and all subsections thereof.
  • 7.2. Severability and No Waiver. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the spirit and intent of the invalid provision. The waiver by either party of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
  • 7.3. Assignment. Neither party may assign nor delegate any or all of its rights (other than the right to receive payment) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld or delayed, provided however, that either party may assign its duties or obligations hereunder without the need to obtain consent of the other party to an affiliate of such party or to a successor in interest to substantially all of the business of that party to which the Agreement relates. An assignee of either party authorized hereunder shall be bound by all the terms of the Agreement and shall have all of the rights and obligations of the assigning party set forth therein. The provisions contained herein are for the sole benefit of the parties hereto.
  • 7.4. Independent Contractors. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employment relationship is intended or created hereby. Neither party shall have the power to obligate or bind the other party. Personnel supplied by SIMNET shall work exclusively for SIMNET and shall not for any purpose be considered employees or agents of Customer.
  • 7.5. Notices. All notices, requests, demands or communications required or permitted hereunder shall be in writing, and delivered either personally or by facsimile or electronic transmission by e-mail, or certified or registered mail to the respective addresses as set forth below (or at such other addresses as shall be given in writing by either Party to the other). All notices, requests, demands or communications shall be deemed to have been given upon personal delivery or on the Business Day following the date of the facsimile or electronic transmission by e-mail, or when received if sent by certified or registered mail.

    If to Customer: At address set out on the Master Service Agreement.

    If to SIMNET: 9-605 Brock St North Whitby, Ontario L1N 8R2 Attention: President phone: 416-482-2854 Email: notices@SIMNET.ca

  • 7.6. Governing Law, Jurisdiction and Venue. The Agreement created hereunder shall be deemed to have been made in, and shall be construed pursuant to the laws of the Province of Ontario, Canada and any action or proceeding arising out of or related to this Agreement shall be brought only in the courts of such jurisdiction. The parties hereby consent to such jurisdiction and venue.
  • 7.7. Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
  • 7.8. Force Majeure. “Force Majeure” means an event, the cause of which is beyond the reasonable control of the party affected thereby and which could not reasonably have been foreseen and provided against, including, without limitation, acts of god, strikes, lock outs or other labour or industrial disturbances, accidents, fires, explosions, weather conditions materially preventing or impairing work, inability to secure fuel, power, materials, contractors or labour, mechanical breakdown, failure of equipment or machinery, delays in transportation, wars, civil commotion, riot, sabotage, applicable legislation and regulations thereunder, interruption by government or court orders and future orders of any regulatory body of competent jurisdiction. Notwithstanding any other provision of the Agreement, if by reason of Force Majeure, either party is wholly or partly unable to perform certain elements of its obligations hereunder, it shall be relieved of those obligations to the extent, and for the period, that it is affected by Force Majeure, provided that the affected party gives the other party prompt notice of such inability. The party affected by Force Majeure shall use all reasonable efforts to remedy the situation and remove, so far as possible and with reasonable speed, the cause of its inability to perform, provided that there shall be no obligation on a party so affected to settle labour disputes or to test or to refrain from testing the validity of any order, regulation or law in any court having jurisdiction. If any Force Majeure event lasts more than ten (10) days, Customer may terminate the Agreement upon ten (10) days’ notice, such termination being deemed to be without cause.
  • 7.9. Non-Solicitation. Both SIMNET and Customer agree that during the Term of this Agreement and for a period of 1 year following the expiration or termination hereof, neither party shall, directly or indirectly, hire or offer to hire or entice away or in any other manner persuade or attempt to persuade any officer, employee, agent, or customer of the other party to discontinue his or her or its relationship with the other party
  • 7.10. Language. Customer has requested that the Agreement and all related documents be drawn up in the English language with which request SIMNET agrees. Le Customer a demandé que le present contrat ainsi que toute la documentation d’accompagnement soient rédigés en englais, requéte à laquelle SIMNET consent.
  • IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above.

    Company: SIMNET Inc.	Company: SIMNET Inc.	Company:	Company:
    Per:		Per:
    Name:		Name
    Title:		Title
    Date:		Date