INFORMATION TECHNOLOGY SERVICE CONTRACT
(hereafter "the client")
Arche TI, legally registered in virtue of the laws of Quebec, Canada,
headquartered at 2043 St-Zotique Est, Montreal (Quebec) H2G 1J4
(hereafter "the service provider")
(the client and the service provider hereafter collectively designated as "the parties")
CONSIDERING THAT the client desires to obtain diverse information technology services from the service provider;
CONSIDERING THAT the service provider agrees to furnish to the client the information technology services described herein, in return for good and valuable consideration;
CONSIDERING THAT the parties desire to confirm their agreement in writing;
CONSIDERING THAT the parties have the ability and the authority to exercise all of the rights required for the completion and the execution of the agreement recorded in the present contract;
IN CONSEQUENCE OF THE PRECEDING, THE PARTIES AGREE TO THE FOLLOWING:
The preamble is an integral part of the present contract.
The service provider engages to furnish the client with the information technology services (hereafter designated as “the services”) described in the specifications included in annex “PURCHASE ORDER” of the present contract (hereafter designated as “the specifications”).
2.2. Deadline for providing services
From the moment that the client has furnished the service provider the informational elements and with the exception of all additional services required by the client after the signature of the present contract, the deadline for the service provider to furnish services is the one indicated in the specifications or any other deadline agreed upon in writing between the parties subsequent to the signature of the present contract.
3.1. Price of services
In consideration for the provision of services, the client must pay the service provider the price indicated in the specifications, as well as all applicable taxes.
3.2. Physical or electronic billing address
All invoices from the service provider will be sent to the client at the physical or electronic address indicated in the specifications or to any other physical or electronic address that the client may communicate to the service provider after the signature of the present contract.
3.3. Terms and conditions of payment
The price is payable by the client to the service provider according to the terms and conditions of payment indicated in the specifications.
4. SPECIFIC PROVISIONS
4.1. Representatives of the parties
Each of the parties recognizes that the person he designates in the specifications (or all persons replacing the designated person, following notice in this regard given to the other party) represents and has full authority to act, make decisions and give the authorizations required relative to the execution of the present contract.
4.2. Electronic communications
The representatives of the parties can communicate among themselves electronically. In such cases, the following presumptions apply:
• the presence of an identification code in an electronic document is sufficient to identify the sending person and to establish the authenticity of said document;
• an electronic document containing an identification code constitutes a document signed by the emitting person;
• an electronic document or all printed output from such a document, conserved in conformance with standard business practices, is considered an original.
The representatives of the parties can also communicate amongst themselves by fax.
4.3. Obligations of the client
The client is engaged and obliged toward the service provider as follows:
• The client must furnish the service provider the informational elements in the form and within the delays described in the specifications;
• The informational elements must respect all applicable laws and regulations;
• The provision of the informational elements by the client must not violate any obligation of confidentiality or non-disclosure and must permit the service provider to use them freely and without constraint in the framework of the provision of services;
• The client must furnish to the service provider, upon demand, the proof of his right, title, or intellectual property interest in all informational elements;
• The client must supply the service provider with all of his collaboration and furnish all information required to assure the faithful and complete execution of the services to be rendered;
• Unless there is a serious reason, the client must give the service provider, upon demand, his approval of work carried out during the term of each of the phases of service provision indicated in the specifications;
• The client is solely responsible for the content of computer equipment and the damages that can follow from their use;
• The client must take take the side of the service provider if he is accused or joined as a party in a legal proceeding filed by a third party and alleging a fault of the service provider resulting from the use of computer equipment or information contained within, and indemnify the service provider from all monetary penalty in capital and interest as well as from all legal and non-legal fees that the service provider may incur as a result;
• The client must pay the price of services of the service provider, pay the price of all additional service that he may require after the signature of the present contract as well as reimburse the incurred expenses, in conformance with the terms and conditions of payment described in the specifications;
• The client must send a notice to the service provider without delay if his representative indicated in the specifications is replaced by another person during execution of the contract;
4.4. Obligations of the service provider
The service provider is engaged and obliged toward the client as follows:
• The services must be rendered in a professional fashion, according to the rules generally recognized by the industry, and in function of the specifications;
• The service provider must assure that his employees, suppliers, collaborators and sub-contractors, as the case may be, fully respect the provisions of the present contract, in particular in that which concerns intellectual property and confidentiality;
• The service provider must send a notice to the client without delay if his representative indicated in the specifications is replaced by another person during execution of the contract.
4.5. Reciprocal engagement of non-solicitation of personnel
During the course of the present contract and for a period of twelve (12) months following its end, each of the parties engages not to solicit, recruit, hire or otherwise retain the services, directly or indirectly, of any employee of the other party. If one party defaults on this obligation, he must immediately transfer to the other party a sum equivalent to twelve (12) months of remuneration of the employee concerned at the moment of the default, as a penalty.
4.6. Useful information
The client recognizes that the service provider has furnished, before the signature of the present contract, all useful information relative to the services that he engages to provide.
4.7. Methods of execution
Except concerning the respect of specifications, the service provider is free to choose the methods of execution of the present contract and there exists between him and the client no relationship of subordination concerning its execution.
4.8. Relationship between the parties
The parties being independent entrepreneurs, the present contract does not bind them together except toward the ends that are mentioned. As a result, the provisions of the present contract can not be interpreted as creating any type of association or company between the parties or as conferring any type of mandate from one to the other. Furthermore, neither of the parties can link the other, in any fashion or toward any person, other than in conformity with the provisions of the present contract.
Except in case of a provision to the opposite effect in the present contract and on condition of having obtained beforehand the consent of the client, the service provider may appoint any third party to execute the contract. He retains nevertheless the responsibilities for management and for execution.
4.10. Process for verification, testing and approval
Upon a request formulated by the service provider for the term of each of the phases of provision of services indicated in the specifications, the client must verify, revise, test or otherwise assess the results of the services rendered up to that time by the service provider. Within a maximum delay of ten (10) days following the request of the service provider, the client must approve or refuse the work carried out by the service provider. If the client approves the work carried out or omits to manifest his approval or his refusal within the said delay, the work carried out is deemed approved and done in conformance with the specifications, and the service provider can continue his work, if necessary. If the client refuses the work that has been carried out, in whole or in part, he must send a notice to the service provider within the said delay and all errors, omissions, non-conformity to the specifications or other reasons for refusal, while giving useful indications and necessary precisions for a proper understanding of the criticized points. The service provider then has a delay identical to the one mentioned above to proceed to the correction of the criticized points and to once again submit to the client the result of his work. If the service provider disagrees with the client on one or several of the points raised in the notice of refusal, he must send a notice to the client within a maximum delay of ten (10) days following reception of said notice of refusal.
4.11. Modifications requested during the course of the contract
If, during the course of execution of the present contract and before the final assessment of the services rendered by the service provider, the client requires a revision, correction, addition, substitution or other modification to the specifications:
• so that the requested result is in conformance to the informational elements initially furnished by the client;
• following an error or omission of the service provider; or
• that does not lead to an increase in work on the part of the service provider, the said modification request is not considered as a request for additional services and thus does not lead to any supplemental cost for the client. All such requests for modification originating from the client must be formulated in writing.
Any other request for modification originating from the client is considered as being a request for additional services.
4.12. Additional services
If the client requires additional services, including complementary or derived information technology services, he must offer the service provider in priority the opportunity to render said services. If the service provider accepts to provide these services, the client is informed in writing.
All additional service is thus subject to the provisions of the present contract, in particular with regard to intellectual property and confidentiality, making adaptations if necessary.
4.13. Representations and guarantees of the service provider
The service provider represents and guarantees to the client that:
• he possesses the capacity required in order to engage himself in virtue of the present contract, such capacity not being limited by any engagement toward a third party;
• he possesses the expertise and the experience required in order to execute and lead to term the obligations incumbent upon him in virtue of the present contract;
• he will render the services in an efficient and professional manner, according the rules generally recognized by the industry and with the help of the most recent underlying technology and development tools;
• he will respect each and all of the specifications relative to the service he must provide;
• he will respect all rights, titles or intellectual property interests belonging to all third parties in each development tool that he will use and in each component that he will conceive with the help of such tools;
• he will not use any confidential information or trade secrets belonging to any third party, unless he has received authorization from said party;
• the client will have a good and valuable right, title or intellectual property interest in all content created by the service provider, in conformance to that which is anticipated in the present contract;
• all such content will violate no right, title or intellectual property interest belonging to a third party.
4.14. Training furnished by the service provider
The service provider must furnish to the client or to persons designated by him professional and effective training, in conformance with the specifications.
4.15. Limitation of guarantee
Except if otherwise specified in the present contract, the service provider gives no guarantee, express or implied, to the client relative to:
• the client's computer equipment, its functioning, and to its hardware and software components;
• losses, financial or non-financial, real or perceived, positive or non-positive, that result or that could result from the provision of the services.
THE GUARANTEES CONTAINED IN THE PRESENT CONTRACT ARE THE ONLY GUARANTEES PROVIDED IN RELATION TO THE OBJECT OF THE PRESENT CONTRACT AND THEY CONSTITUTE A LIMITED GUARANTEE. THE CLIENT EXPRESSLY RENOUNCES ANY OTHER GUARANTEE, EXPRESS OR LEGAL, INCLUDING BUT NOT LIMITED TO ALL LEGAL GUARANTEES CONCERNING HIDDEN DEFECTS, EVICTION, SALEABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CERTAIN JURISDICTIONS PROHIBIT THE EXCLUSION OR THE LIMITATION OF LEGAL GUARANTEES, IT IS POSSIBLE THAT ONE OR MORE OF THE EXCLUSIONS OR LIMITATIONS MENTIONED ABOVE DO NOT APPLY. IT IS ALSO POSSIBLE THAT THE CLIENT HAS OTHER RIGHTS TO A GUARANTEE, WHICH RIGHTS MAY VARY FROM ONE PLACE TO ANOTHER. IN NO CASE MAY THE VALUE OF THE GUARANTEE EXTEND BEYOND THE VALUE OF THE SERVICES RENDERED TO AND PAID FOR BY THE CLIENT. THE CLIENT EXPRESSLY RENOUNCES ALL GUARANTEE-BASED CLAIMS ABOVE THIS LIMIT.
4.16. Limitation of liability
Except in case of serious error on his part, the service provider may not be held responsible toward the client for any defect or damage, direct or indirect, that may result, and the client holds the service provider released and indemnified from any claims, including all claims under guarantee, in any of the following cases:
• modifications brought about to the content by a person other than the service provider or those working under him;
• modifications or additions, in terms of hardware or software, to the client's computer equipment, having an effect on the proper functioning of software products;
• the introduction of a computer virus in the client's computer equipment, having an effect on the proper functioning of software products;
• migration of software products in a different hardware or software environment;
• loss of income opportunities or business revenues related to the function or absence of function of software products;
• illegal or unauthorized intrusion of all third parties in the client's computer equipment.
EXCEPT IF OTHERWISE SPECIFIED IN THE PRESENT CONTRACT, IN NO CASE WILL THE SERVICE PROVIDER (INCLUDING, AS THE CASE MAY BE, HIS SUBSIDIARIES AND PARENT COMPANY AS WELL AS HIS SHAREHOLDERS, DIRECTORS, MANAGERS, EMPLOYEES, COLLABORATORS AND SUB-CONTRACTORS) BE HELD RESPONSIBLE TOWARD THE CLIENT OR THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO ALL LOSS OF PROFITS OR OTHER ECONOMIC LOSS (RESULTING FROM A CONTRACTUAL FAULT, A CRIMINAL FAULT OR NEGLIGENCE) EVEN IF THE SERVICE PROVIDER WAS NOTIFIED OF THE POSSIBILITY THAT SUCH DAMAGE MIGHT OCCUR. CERTAIN JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INDIRECT OR INCIDENTAL DAMAGE, IT IS POSSIBLE THAT ONE OR MORE OF THE EXCLUSIONS OR LIMITATIONS MENTIONED ABOVE WILL NOT APPLY. IT IS ALSO POSSIBLE THAT THE CLIENT HAS OTHER RIGHTS, WHICH RIGHTS MAY VARY FROM ONE PLACE TO ANOTHER. IN NO CASE CAN THE TOTAL LEGAL LIABILITY OF THE SERVICE PROVIDER TOWARD THE CLIENT SURPASS THE VALUE OF SERVICES RENDERED FOR AND PAID BY THE CLIENT. THE CLIENT EXPRESSLY FREES THE SERVICE PROVIDER FROM ALL LIABILITY ABOVE THIS LIMIT.
4.17. Security deposit
Upon signature of the present contract, the client must transfer to the service provider the security deposit indicated in the specifications.
All amounts owed by the client to the service provider in virtue of the present contract incur interest at the rate of two percents (2.00%) per month starting from the due date, compounded daily.
4.19. Change in rate or addition of taxes
If the rate of all applicable tax is modified or if a new tax is added during execution of the contract, all such new rates or all such new taxes are thus applicable and the total price must be adjusted as a result.
4.20. Sales Taxes
As per the requirement of the Quebec Consumption taxes act, services executed in Quebec for a clients situated outside Quebec, are subject of GST and QST collection.
4.21. Collection fees
If it becomes necessary, given the client's default in payment, to refer an outstanding invoice or invoices to a collection agency or a lawyer, the client must pay to the service provider, in addition to the balance due, collection fees equivalent to fifteen percent (15%) of the balance due in capital and interest.
4.22. Suspension of services in case of non-payment
If the client refuses without right to transfer to the service provider the sums that are payable or refundable, as is the case, in virtue of the present contract conforming to the terms and conditions of payment indicated in the specifications, despite a letter of request from the service provider, the service provider is within his rights to suspend the provision of the services concerned, without other notice or delay, subject to any other rights that the service provider may have in virtue of the present contract.
4.23. Termination of the contract (by the client)
The client can terminate the present contract at any time, with a notice sent to the service provider. However, the client remains responsible:
• for payment of the price of services rendered;
• for payment of the price of additional services rendered; and
• for reimbursement of incurred expenses;
without any reduction or remittance.
Furthermore, if the service provider has respected his obligations in virtue of the present contract up to the termination of the latter, the client must transfer to the service provider an amount equivalent to eighty percent (80%) of the amount of the price of the contract, under the heading of loss of anticipated profit.
4.24. Termination of the contract (by the service provider)
• If the client does not respect one or more of his obligations in virtue of the present contract,
• if the client ceases his operations in any way, including for reason of bankruptcy, liquidation or transfer of his assets, or
• if the client has presented false or misleading information or has made false representations, the service provider may terminate the present contract by sending a written termination notice announcing the reason for termination. If it consists of a reason for termination as described in paragraph 1, the client must remedy the default announced by the deadline prescribed in the notice, otherwise the contract will be automatically terminated. The service provider is thus not held to reimburse any advance (or balance of the latter) or any surplus amount received, subject to all his rights and recourses against the client.
4.25. Absence of intermediary
The parties declare to have not retained the services of any intermediary (eg. agent, broker or otherwise) relative to the negotiation, preparation, or conclusion of the present contract.
4.26. Professional fees relative to the present contract
All professional fees (legal, accounting and otherwise) relative to the negotiation, preparation and conclusion of the present contract, incurred at the demand of one party for his personal benefit, must be borne by the latter.
The software, scripts and programs written by the service provider in the scope of clause 2 of the present contract will be furnished to the client under the GNU General Public License version 3, available at the following address: http://www.gnu.org/licenses/gpl.html.
5. GENERAL PROVISIONS
Except in the case of an express provision to the contrary in the present contract, the following provisions apply.
5.1. Force majeure
Neither of the parties may be considered in default in virtue of the present contract if the execution of his obligations, in whole or in part, is delayed or prevented as a result of a situation of force majeure. The force majeure is an external event, unforeseeable, irresistible and rendering absolutely impossible the execution of an obligation.
5.2. Autonomy of provisions
The potential illegality or nullity of an article, paragraph, or provision (or part of an article, paragraph, or provision) will not affect in any way the legality of the other articles, paragraphs or provisions of this contract, nor the rest of the article, paragraph or provision, except in the case of clear intent to the contrary in the text.
All notices destined for one party are deemed to have been validly given if done in writing and sent by email with acknowledgement of receipt, by registered or certified mail, by bailiff or by message service, to such party at the address indicated at the beginning of the present contract or to any other address that the concerned party can make known by a similar notice to the other party.
The titles used in the present contract are used for reference and convenience only. They do not affect the meaning or scope of the provisions that they designate.
The appendices of the present contract, when duly initialled by the parties, form an integral part.
5.6. Absence of renunciation
Inactivity, negligence or delay on the part of one party to exercise a right or a recourse in virtue of the present contract shall in no case be interpreted as a renunciation of this right or recourse.
5.7. Cumulative and non alternative rights
All the rights mentioned in the present contract are cumulative and non alternative. The renunciation of the exercise of a right shall not be interpreted as a renunciation of any other rights.
5.8. Completeness and wholeness of the agreement
The present contract represents the whole and complete agreement reached between the parties. No declaration, representation, promise or condition not contained in the present contract can or should be admitted to contradict, modify or affect in any way the terms of the latter.
5.9. Modification of the contract
The present contract cannot be modified except by another document, duly signed by all parties.
5.10. Gender and number
All the words and terms used in the present contract must be interpreted as representing the masculine and feminine, as well as the singular and plural, following the context or the meaning of this contract.
No party can cede or otherwise transfer to a third party all or part of their rights in the present contract without obtaining beforehand the written permission of the other party to such effect.
5.12. Computation of deadlines
In the computation of all deadlines fixed by this contract:
• the day that marks the starting point is not counted, but that of the deadline date is;
• non-business days (Saturdays, Sundays and statutory holidays) are counted;
• when the final day is a non-business day, the deadline is moved to the next business day.
All sums of money mentioned in the present contract refer to Canadian currency.
5.14. Applicable laws
The present contract is subject to the laws in effect in the Province of Quebec.
5.15. Address for service
The parties agree to choose an address for service in the legal district of Montreal, Province of Quebec and choose the latter as the district appropriate for hearing all disputes following from the interpretation, application, fulfilment, entry into effectiveness, validity and effects of the present contract.
When initialled and signed by all the parties, each copy of the present contract is deemed to be an original, but each of these copies reflects but one single and same agreement.
5.17. Scope of the contract
The present contract links the parties, as well as their successors, heirs and those with respective causes.
If one of the parties is constituted of two or more persons, the latter are collectively obliged and responsible toward the other party.
5.19. Passing of time
If one party must fulfil an obligation in virtue of the present contract in a given time, the simple passing of time will have the effect of putting said party in default.
5.20. Settling of disagreements
If a disagreement arises in the course of the execution of the present contract or in its interpretation, the parties engage, before exercising any recourse, to look for an amicable solution to this disagreement and, if needed, to appeal to a third party, according to modalities to be agreed upon, to assist them in settling.
6. ENTRY INTO EFFECTIVENESS OF THE CONTRACT
The present contract enters into effectiveness upon signature of the present contract.
7. END OF THE CONTRACT
The present contract will end in any of the following cases:
• when all the obligations of the parties have been fulfilled;
• upon written agreement of the parties to this effect;
• in case of termination as described in the present contract;
• if one of the parties is in default in respect to any one of his obligations, within a delay of ten (10) days following the reception by the party in default of a formal notice to remedy the problem or within any other delay shorter than anticipated by the present contract, and there is inaction by the party in default within said delay;
• in case of bankruptcy, insolvency or of cessation of activities of any one of the parties.
• However, the end of the present contract will not have the effect of making a party lose a right or liberating him from an obligation, notably in that which concerns confidentiality, intellectual property, limitation of guarantee and limitation of liability. The aforementioned rights and obligations survive past the end of the present contract.
8. RECOGNITION OF THE PARTIES
THE PARTIES RECOGNIZE THAT:
• THE PRESENT CONTRACT HAS BEEN THE SUBJECT OF PRIOR NEGOTIATIONS BETWEEN THEM;
• THE PRESENT CONTRACT REFLECTS GENUINELY AND COMPLETELY THE AGREEMENT REACHED BETWEEN THEM;
• EACH AND ALL OF THE CLAUSES OF THE PRESENT CONTRACT ARE LEGIBLE;
• THEIR COMPREHENSION HAS NOT POSED THEM ANY DIFFICULTY;
• BEFORE SIGNING THE PRESENT CONTRACT, EACH PARTY HAS HAD THE OPPORTUNITY TO CONSULT THEIR LEGAL ADVISOR TO DISCUSS IT;
• EACH PARTY HAS TAKEN POSSESSION OF A COPY OF THE PRESENT CONTRACT IMMEDIATELY AFTER SIGNATURE OF THE LATTER BY ALL PARTIES.