CONSULTANT SERVICES AGREEMENT
Please read all the terms and conditions of this consultant services agreement (this “Agreement”) with NEXREG COMPLIANCE INC. (“Nexreg”) carefully. By signing a document that refers to these terms, by agreeing to these terms by telephone, email, or through some other communication, by placing an order, or by using any of Nexreg’s services, you (the “Client”) agree to be bound by the terms and conditions of this Agreement, even if you have not read them. It is important to read this entire agreement. In particular, it contains provisions that may limit your rights. Please especially review the Sections entitled “EXCLUSION OF LIABILITY” and “LIMITATION OF LIABILITY”.
This Agreement between the parties consists of this Agreement and all Estimates hereto. All Estimates will be subject to and become part of this Agreement.
ARTICLE 1: CONSULTANT SERVICES
1.1 Estimate for Services. Client shall send all requested information, including, but not limited to, composition information (e.g., Chemical Abstracts Service numbers, weight percentages, raw material safety data sheets, and physical properties), to Nexreg in the forms and mediums requested by Nexreg for the purpose of requesting Nexreg’s consulting services. Nexreg shall review such information and, if it deems necessary, request additional information. Once Nexreg has enough information it deems sufficient, it will propose a quote to Client in the form of an “Estimate”, which shall detail the consulting services (the “Services”), the estimated Fees, and the payment terms. Such Estimate becomes binding on the parties once Nexreg receives and accepts Client’s acceptance of the Estimate.
1.2 Designation of Representative. Client shall designate a representative authorized to act on Client’s behalf with respect to the Services. Client shall share that representative’s contact information (i.e., address, routine telephone number, emergency 24/7 telephone number, and email address) with Nexreg.
1.3 Services. Subject to Client’s payment of all applicable Fees, and subject to Nexreg receiving all information it deems necessary pursuant to Sections 1.1 and 1.5, Nexreg will provide the Services to Client in accordance with the terms of the Estimate. The Services will be based on all information provided by Client. Any additional or amendments to Services requested subsequent to the Effective Date of this Agreement, will be set forth in additional Estimates, which shall be agreed to and acknowledged, in writing, by both parties.
1.4 Information. Client shall ensure that (a) any information given to Nexreg is (i) given promptly, (ii) accurate, and (iii) complete; and (b) any assumptions provided by Nexreg to Client or by Client to Nexreg are appropriate. Nexreg will not verify any information given to Nexreg relating to the Services, and Nexreg assumes no responsibility and makes no representations with respect to the accuracy or completeness of any information provided by Client to Nexreg . 2 5876506.3
1.5 Request for Additional Information. In the event Nexreg requests additional information, requests that a decision be made, or requests feedback, Client shall send the requested information, send the requested feedback, or make the requested decision within one business days. If more than one business days pass, then the number of days exceeding that One business day timeline will be added to any overall Service project schedule, as described in the Estimate. If more than ten days pass, then Nexreg may either suspend the Services or complete the Services without such information, instruction, or feedback.
Nexreg may revise the Fees in response to such additional information, decision, or feedback, provided that Client consents to such revised Fees. In the event Client does not consent to such revised Fees, then Nexreg (a) may choose to suspend the Services, if the additional information, decision, or feedback materially changes the Services; or (b) is not required to take into consideration the additional information, decision, or feedback.
1.6 Inspection Period. Upon completion of the Services, Client will have five business days upon notification of such completion to notify Nexreg and furnish evidence reasonably satisfactory to Nexreg that the Services are non-conforming with the warranty provided under Section 6.1 (the “Inspection Period”). In the event Nexreg determines, in good faith, that such Services are non-conforming, then Nexreg shall either, in its sole discretion (a) reperform the non-conforming Services, or (b) refund the applicable Fees. This Section outlines Client’s sole and exclusive remedy, and Nexreg’s sole and exclusive obligation, for any non-conforming Services.
Client will be deemed to have accepted the Services unless it notifies Nexreg in writing of any non-conforming Services and furnishes written evidence as reasonably required by Nexreg demonstrating such non conformance within the Inspection Period.
1.7 Order of Precedence. This Agreement applies to all Estimates even if they do not specifically reference this Agreement. In the event of a conflict between this Agreement and an Estimate, the former shall prevail except to the extent the latter expressly identifies and modifies the applicable provision of this Agreement and is signed by Nexreg.
ARTICLE 2: INTELLECTUAL PROPERTY
2.1 Nexreg Intellectual Property. Subject to Section 2.2, Nexreg is and will continue to be the sole and exclusive owner of all right, title, and interest in and to the Nexreg Content and the Documentation. In the event that Client acquire any right, title, or interest in or to the Nexreg Content or the Documentation, Client hereby does and shall cause its Personnel (defined below) to: (a) assign, transfer, and otherwise convey to Nexreg, irrevocably and in perpetuity, throughout the world, all right, title, and interest in and to such Nexreg Content and Documentation, including all intellectual property rights therein; and (b) irrevocably and unconditionally waive, and agree not to assert, any moral rights, under the Copyright Act, R.S.C. 1985, c. C-42, as amended, or under any similar laws in any other jurisdiction, including without limitation attribution of authorship, the right to restrain any distortion, destruction, or modification with respect to the Nexreg Content and Documentation and the intellectual property rights therein.
2.2 Work Product. Client will own all intellectual property and other materials created pursuant to an Estimate that expressly identifies that such intellectual property and other materials is to be owned by Client (the “Work Product”) except as follows: (a) Nexreg will retain ownership in Nexreg Content and Documentation that may have been discovered or created as a result of the Services; and (b) Client shall have a non-exclusive, non-transferable license to use such Nexreg Content and Documents that have been incorporated into the Work Product or is otherwise 3 5876506.3
necessary for the use of the Work Product. Nexreg will deliver the Work Product to Client in the format identified in the Estimate or the Documentation.
2.3 License for Documentation. In the event Nexreg provides Documentation to Client, subject to Client’s compliance with this Agreement, Nexreg hereby grants Client a non-exclusive license for the Term to reproduce, publish, and display the Documentation to its employees, consultants, or agents (collectively, “Personnel”) solely for Client’s internal education purposes.
2.4 Client Marketing Collateral. If applicable, Client will make available in a timely manner at no charge to Nexreg all Client Marketing Collateral. Client represents and warrants that it owns or otherwise has sufficient right to grant Nexreg access to and use of Client Marketing Collateral in accordance with the terms of this Agreement. Client will be responsible for, and assumes the risk of, any delays or expenses resulting from corrupt, inaccurate, incomplete, or inconsistent Client Marketing Collateral provided to Nexreg. Other than as required to fulfill its obligations under this Agreement, Nexreg will not change, modify, or delete any Client Marketing Collateral.
2.5 Further Assurances. Client shall, and shall cause its Personnel to, take all appropriate action and execute and deliver all documents, necessary or reasonably requested by Nexreg to effectuate any of the provisions or purposes of Section 2.1, or otherwise as may be necessary or useful for Nexreg to prosecute, register, perfect, record, or enforce its rights in or to any Nexreg Content or Documentation or any intellectual property right therein. Client hereby appoints Nexreg as Client’s attorney with full irrevocable power and authority to take any such actions and execute any such documents if Client refuses, or within a period deemed reasonable by Nexreg otherwise fails, to do so.
ARTICLE 3: FEES AND PAYMENT
3.1 Fees. For Nexreg’s performance of the Services and delivery of any Work Product, Client will pay Nexreg all Fees on each invoice, which are calculated in accordance with the terms set forth in the applicable Estimate. Client acknowledges and agrees that the Fees described in each Estimate are solely estimates, and such Fees may vary depending on the number of actual hours worked, if applicable, any changes in scope, or additional or clarified information. If applicable, Client will reimburse Nexreg for all reasonable and customary travel, lodging and other related expenses incurred by Nexreg or its Personnel or subcontractors in connection with the performance of Services.
Unless otherwise stipulated in the Estimate, all Fees are expressed and payable in United States dollars.
3.2 Timing of Payments. In consideration for the Services, Client will pay to Nexreg all Fees stipulated in each Estimate pursuant to the payment schedules and instructions specified therein. All invoices will be delivered to Client electronically. Client will provide Nexreg with complete and accurate billing and contact information and will notify Nexreg in writing of any changes within 10 business days of any such change.
3.3 Taxes. The prices are exclusive of all applicable taxes (including sales tax). Each party will be responsible for the payment of and will pay any applicable taxes, duties and levies levied on that party from time to time in relation to this Agreement. For greater clarity, Client is responsible for the payment of and will pay all applicable sales tax.
3.4 Late Payments; Interest; Suspension. Any undisputed amounts invoiced but not paid when due will accrue interest at two percent per month, compounded monthly (26.82% annually) from the 4 5876506.3
due date until paid. If Client fails to pay any undisputed amounts due on or before the applicable payment due date, Nexreg may suspend the Services and, if the delinquency continues for an additional thirty days after the initial suspension date, Nexreg may terminate this Agreement. Fees and interest will continue to accrue during any such suspension, and interest will continue to accrue after any such termination.
3.5 Invoice Disputes. Client shall provide Nexreg written notice of any dispute with any invoice (along with substantiating documentation) within thirty days of the date of the invoice. Client will be deemed to have accepted all invoices for which Nexreg does not receive timely written notice of disputes and shall pay all undisputed amounts due under these invoices. The parties shall, in good faith, seek to resolve all disputes expeditiously.
ARTICLE 4: TERM
4.1 Term. The Term of this Agreement commences upon the signing by both parties of the Estimate (the “Effective Date”), and the Term of this Agreement shall continue until the Estimate expires or is completed or terminated.
4.2 Termination for Breach. This Agreement or any Estimates may be terminated as follows:
(a) By Nexreg immediately in the event of:
(i) the liquidation or dissolution or notice thereof of Client’s usual business;
(ii) an assignment by Client for the benefit of creditors;
(iii) the filing of a voluntary or involuntary petition under the provisions of applicable bankruptcy law or the appointment of a receiver for the property of Client, the filing of which remains uncontested and undischarged by Client at the end of thirty days after such filing; and,
(b) By either party if the other party breaches a material provision of this Agreement and fails to cure said breach within thirty days after receipt by the breaching party of written notice from the non-breaching party specifying in detail the nature of such breach.
4.3 Effect of Termination; Survival. Upon termination of this Agreement, each party must certify to the other that it has destroyed or returned to the other all Confidential Information.
Any provisions of this Agreement, which by their nature are intended to survive termination, will continue after termination, including but not limited to Client’s payment and indemnity obligations, the exclusion and limitation of liability, the limitation of warranties, and each party’s Confidentiality obligations. Following termination of this Agreement, for the avoidance of doubt, each party will remain liable for any claims, actions or obligations that arose prior to termination (e.g., payment obligations, post-termination indemnification claims, and damages for breach occurring prior to termination).
ARTICLE 5: CONFIDENTIAL INFORMATION
5.1 Pre-existing Mutual Non-Disclosure Agreement. In the event the parties have signed a mutual non-disclosure agreement that:
(a) Substantially mirror or comply with the provisions of Sections 5.2 to 5.7 and Subsection 10.2(b); 5 5876506.3
(b) applies to the Confidential Information that is disclosed between the parties pursuant to this Agreement; and
(c) permits Nexreg to use subcontractors in compliance with this Agreement,
then the following Subsections apply:
(a) this Agreement shall incorporate such mutual non-disclosure agreement;
(b) Sections 5.2 to 5.7 are deemed inapplicable;
(c) the definition of Confidential Information contained in Subsection 10.2(b) is amended to reflect the definition of Confidential Information contained in such mutual non-disclosure agreement;
(d) the term and termination provisions of such mutual non-disclosure agreement is amended to be co-terminus with this Agreement’s term; and
(e) in the event any provision of such mutual non-disclosure agreement conflicts with any term of this Agreement, excluding Sections 5.2 to 5.7, then the term contained in this Agreement shall prevail.
5.2 Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
5.3 Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information of the other party only for the purposes described herein; (ii) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination; (iii) that neither party will create any derivative work from Confidential Information of such party by the other party; and (iv) to restrict access to the Confidential Information disclosed by the other party to such of its Personnel or subcontractors, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information as confidential.
5.4 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Section 5.3 will not apply to Confidential Information not constituting Personal Information that (a) is publicly available or in the public domain at the time disclosed through no fault of the recipient without breach of an obligation of confidentiality or other restriction on disclosure; (b) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (c) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (d) is independently developed by the recipient without the use of the other party’s Confidential Information; or (e) is approved for release or disclosure by the disclosing party without restriction.
5.5 Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable 6 5876506.3
effort to obtain a protective order; or to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
5.6 Remedies. The party receiving Confidential Information under this Agreement acknowledges that the remedies of the party disclosing the Confidential Information at law for money damages may be inadequate in the event of a breach or threatened breach of these confidentiality obligations. The disclosing party will be entitled to seek a temporary restraining order, injunctive relief or other equitable relief in the event of any such breach or threatened breach.
5.7 Duration of Confidentiality. The obligations of confidentiality with respect to Confidential Information will survive indefinitely, provided that such Confidential Information remains Confidential Information.
5.8 Client also acknowledges and agrees that Nexreg may freely use any comments or ideas provided by Client or its Personnel to Nexreg that relate to the Services.
ARTICLE 6: WARRANTY AND LIMITATIONS OF WARRANTIES
6.1 Services Warranty. Nexreg represents and warrants that the Services will be provided in a professional and workmanlike manner with Personnel having the requisite knowledge, skill, and experience to perform such Services, provided that Client abides by all applicable Nexreg instructions contained in Documentation as applicable.
6.2 LIMITATION OF WARRANTIES. Except for the express warranties specified above in Section 6.1 or in any applicable Estimate, Nexreg disclaims all conditions and warranties, either express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of third party rights or non-misappropriation of intellectual property rights of a third party, custom, trade, quiet enjoyment, accuracy of informational content or results, or system integration, or any warranties arising under any other legal requirement.
Client acknowledges and agrees that Nexreg’s Services do not provide any guarantee relating to product- or marketing-related guarantees.
6.3 The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Nexreg is not responsible for any delays, delivery failures, or other damage of any nature, kind or extent resulting from such problems.
ARTICLE 7: INDEMNIFICATION
7.1 General Indemnification. Client shall indemnify, defend, and hold harmless Nexreg and its partners, employees, agents, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all third-party losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, charges and disbursements, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, the “Losses”), arising out of or relating to
(a) Client’s use of the Services or the Work Product that is contrary to the instructions contained in the Documentation;
(b) Client’s or its Personnel’s violation of this Agreement or applicable law;
(c) Nexreg’s compliance with any Client request; and 7 5876506.3
(d) Nexreg’s use of Client Marketing Collateral in accordance with the instructions provided by Client.
ARTICLE 8: EXCLUSION AND LIMITATION OF LIABILITY
8.1 EXCLUSION OF LIABILITY. Nexreg and its partners, employees, agents, successors, and permitted assigns will not be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, including damages for loss of profits, goodwill, use, or data or other loses, even if Nexreg had been advised of the possibility of such damages.
8.2 LIMITATION OF LIABILITY. Nexreg and its partners, employees, agents, successors, and permitted assigns’ aggregate liability under this Agreement will not exceed the greater of (a) the amount Client paid for the Services that gave rise to the claim during the twelve months before the liability arose; or (b) one hundred dollars.
8.3 The limitations in this Article apply only to the maximum extent permitted by applicable law.
ARTICLE 9: GENERAL TERMS
9.1 Non-Solicitation of Nexreg Personnel. For the Term of this Agreement, and for 12 months after its termination or completion, Client will not directly or indirectly solicit or hire any Nexreg Personnel who has taken part in the performance of the Services without Nexreg’s prior written consent. This Section will not apply to someone you hire through an advertisement in the public domain.
9.2 Subcontractors. Nexreg shall engage subcontractors as necessary. Nexreg shall cause all subcontractors to comply with all of Nexreg’s obligations under this Agreement and any Estimate, as applicable.
9.3 Governing Law, Personal Jurisdiction, and Venue. The validity and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the laws of Ontario, excluding its conflict of laws rules. Each party hereby irrevocably consents to the personal jurisdiction of the Ontario courts. Venue for any legal proceeding relating to or arising out of this Agreement will be London, Ontario.
9.4 Entire Agreement. This Agreement sets forth the entire agreement of the parties with regard to the subject matter hereof, and supersedes, replaces, and controls with respect to any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth in this Agreement.
9.5 Waivers. Failure on the part of any party to this Agreement to complain of any act or failure to act of any party to this Agreement or to declare such party in default, irrespective of how long such failure continues, will not constitute a waiver by the non-defaulting party of its rights hereunder. Each and every waiver of any covenant, representation, warranty or other provision of this Agreement must be in writing and signed by each party whose interests are adversely affected by such waiver. No waiver granted in any one instance will be construed as a continuing waiver applicable in any other instance; and without limiting the generality of the foregoing, the waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
9.6 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated 8 5876506.3
in any way. The parties intend that any invalid provision will be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent and economic terms of the invalid provision.
9.7 Assignment. Neither this Agreement nor any obligations or rights arising hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, to any third party without the other party’s prior written consent.
9.8 Notices. Any notice, payment, demand, or communication required or permitted to be given by this Agreement will be in writing and will be delivered personally to the party to whom the same is directed, or sent by electronic mail, registered, or certified mail, or by overnight courier, return receipt requested, to the principal contact of Client identified on the Estimate.
In the case of any notice to be given to Nexreg under this Agreement, the notice may be delivered by mail or courier to London City Centre – 380 Wellington St, Tower B, 6th floor, Suite 610, London, Ontario, Canada N6A 5B5, or electronically to the following email: connect@nexreg.com.
A party’s applicable address given for the delivery of a notice may be changed at any time by the applicable party by written notice in accordance with this Section. Any notice delivered personally or by email will be considered to be received on the day delivered. Any notice sent by registered or certified mail will be considered to be received upon receipt by the sender of confirmation of delivery. Any notice sent by courier will be considered to be received on the next business day following the date of dispatch.
9.9 Counterpart Execution and Delivery. This Agreement and any Estimate may be respectively executed or confirmed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. An executed copy of this Agreement (or any portion of this Agreement) and a confirmed Estimate may be delivered by any of the parties by facsimile, digital, or similar capability regardless of the medium of transmission, and such delivery will be effective and binding upon such party and will not in any way diminish or affect the legal effectiveness, validity, or enforceability of this Agreement and Estimate.
9.10 Joint Preparation of Agreement. No party will be deemed the drafter of this Agreement, and both parties acknowledge that they had sufficient time to have this Agreement reviewed by counsel and that this Agreement will be deemed to have been jointly prepared by the parties. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter.
ARTICLE 10: INTERPRETATION
10.1 Captions. Paragraph titles or captions contained herein are inserted only as a matter of convenience and for reference.
10.2 Definitions. For purpose of this Agreement, the following terms shall have the respective meanings indicated below:
(a) Client Marketing Collateral means all content, graphic files, trademarks, service marks, trade names, domain names, logos, business and product names, slogans, or other indicia of product or service origin and registrations and applications for registration thereof owned by Client that Client desires Nexreg to use for the performance of Nexreg’s obligations under this Agreement. 9 5876506.3
(b) Confidential Information refers to the following items: (i) any document the disclosing party marks as “confidential”; (ii) any information the disclosing party orally designates as “confidential” at the time of disclosure or a reasonable time thereafter; (iii) any specifications, drawings, or information, and any improvements or modifications to such information, and discoveries, testing results, or reports relating to such information; and (iv) any other non-public information the receiving party should reasonably consider a trade secret, Personal Information, or otherwise confidential, whether or not marked “confidential.”
(c) Documentation means any written or electronic help or training materials provided or made available by Nexreg to Client or its Personnel.
(d) Effective Date is defined in Section 4.1.
(e) Estimate means a form or communication that includes any order submitted pursuant to this Agreement. Each Estimate must be agreed to by both parties identifying the Services to be performed by Nexreg to Client, the payments to be made to Nexreg by Client, and other relevant terms and conditions governing the provision of such Services including, but not limited to, any out-of-scope services, assumption used to determine the Services, and any other instructions for Client.
(f) Fees means all fees, including hourly rate fees, charged on an invoice according to the payment terms set out in an Estimate and relating to the provision of Services.
(g) Indemnified Party is defined in Section 7.1.
(h) Inspection Period is defined in Section 1.6.
(i) Losses is defined in Section 7.1.
(j) Nexreg Content means all the content owned by Nexreg or licensed to Nexreg by a third party including the Services, reports, software tools, algorithms, software (in source and object forms), user interface designs, architecture, platforms, tool-kits, plug-ins, objects, network designs, processes, know-how, methodologies, templates, trade secrets, data, media, content, and suggestions made to Nexreg by Client or its Personnel that are incorporated into any of the foregoing (which will be deemed to be assigned to Nexreg), as well as any of the derivatives, modifications, improvements, enhancements, configurations, or extensions of the above, whenever developed, and including the Documentation.
(k) Personal Information means all information about an identifiable individual, as defined under applicable privacy law.
(l) Personnel is defined in Section 2.3.
(m) Services is defined in Section 1.1 and refers to the consulting services provided by Nexreg as described in the Estimate.
(n) Term is defined in Section 4.1.
(o) Work Product is defined in Section 2.2.