Service Agreements
.
.
Palaris Australia Pty Ltd – Service Agreement
Service Agreement
PARTIES: The parties to this Service Agreement are:
Palaris Australia Pty Ltd ACN 093 424 867 ABN 13 093 424 867 (“Palaris”)
And
The Client (as listed on the front page of the Proposal and/or listed in Section C of the Services Agreement)
The Client has agreed to engage Palaris to provide the Services set out in this Service Agreement.
The Service Agreement means:
Part A – Terms of the Engagement
Part B – Amendments to Standard Terms (if any)
Part C – Formal Agreement by the Parties and
The Proposal
Part A – Terms of Engagement
1. Definitions and Interpretation
Background IP means the Intellectual Property rights whether legal or equitable in a Party’s procedures, processes, systems, know-how, products, services and methodologies which are pre-existing or developed other than in the performance of the Services and which are made available to the other Party for the purposes of the Agreement.
Confidential Information means the terms of this Agreement and the information of the disclosing Party made available to the recipient Party at any time together with any information that concerns the business, operations, finances, plans or clients, customers or suppliers of the disclosing Party disclosed to or acquired by the receiving Party, but does not include information which is:
(i) or becomes, public knowledge, other than by a breach of this Agreement;
(ii) required to be disclosed by law;
(iii) information already in the recipient Party’s possession; or
(iv) information the recipient Party received from a third party not under any legal restriction
Contract Documents means any drawings, designs, reports, advices, records and other documents and concepts (whether in hard copy, electronic or other form) provided by Palaris to the Client as part of or in connection with the Services.
Date of Agreement means the date the Agreement is entered into by the Parties in Part C.
Dispute has the meaning set out in clause 16.1.
Dispute Notice has the meaning set out in clause 16.2.
Expenses means the project related expenses such as accommodation or transport specified in the Proposal and/or as outlined in clause 4.
Fee means each amount specified in the Proposal.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means with respect to a Party, is any event when that Party ceases to carry on its business, or commits an act of bankruptcy, or becomes insolvent, or makes an assignment for the benefit of creditors, or files a petition in bankruptcy, or undertakes or is subject to any analogous event, or petitions or seeks the appointment of any receiver, trustee or similar liquidator in respect of all or a substantial part of its property, a or admits the material allegations of a petition or application filed with respect to it in any proceeding commenced in respect of it under applicable insolvency legislation, or takes any action for the purpose of effecting any of the foregoing.
Intellectual Property Rights is all beneficial and legal ownership and intellectual and industrial protection rights throughout the world, both present and future, including rights in respect of or in connection with any Confidential Information, copyright, moral rights, inventions, patents, trademarks, service marks and designs (whether or not now existing and whether or not registered or registrable) and includes any right to apply for the registration of such rights and all renewals and extensions.
Party means a party to this Agreement and Parties means both of them.
Proposal means the document provided by Palaris in relation to the provision of the Services.
Services means the services specified in the Proposal provided and as varied from time to time in accordance with the Agreement.
Tax means a tax, levy, duty, charge, deduction or withholding, however it is described, that is imposed by law or by a Governmental Agency, together with any related interest, penalty, fine or other charge.
Tax Authority means any governmental agency responsible for Tax, wherever situated.
1.2. The word “includes” in any form is not a term of limitation.
1.3. To the extent permitted by law, this Agreement in respect of the Services:
(i) embodies the entire understanding of the Parties, and contains the entire agreement of the Parties with respect to its subject matter; and
(ii) supersedes any prior written or other agreement of the Parties
1.4. A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force
1.5. To the extent the provisions of this Agreement conflict with the provisions of the Proposal, the provisions of this Agreement prevail.
1.6. This Agreement shall be construed and governed in accordance with the law of New South Wales, Australia.
1.7. This Agreement may only be varied by written agreement duly signed by the Parties.
1.8. Unless otherwise stated, all prices and amounts referred to under this Agreement, including and Fee, are in Australian dollars and exclusive of GST or other applicable sales taxes.
1.9. Both Parties acknowledge and agree that:
(i) Palaris is engaged as the Client’s contractor and is not the Client’s employee or agent.
(ii) The Client engages Palaris in the Client’s own right and not as agent, administrator or representative of any third party. The Client shall be liable to Palaris under this Agreement notwithstanding any right of right of indemnity, reimbursement or contribution from any third party. The Client must not postpone any payment or other obligation due under this Agreement until it recovers under any such right indemnity, reimbursement or contribution.
2. Acceptance
2.1. The Client will accept this Agreement and the Proposal by:
(i) signing and exchanging this Agreement with Palaris; or
(ii) placing a purchase order on or with Palaris for any of the Services described herein; or
(iii) emailing acceptances of the Proposal with the Proposal attached; or
(iv) paying an invoice issued by Palaris for any of the Services described herein; or
(v) performing any other act or omission that indicates acceptance of this Agreement by the Client
3. Term
3.1. This Agreement commences on the Date of the Agreement and continues until:
(i) the Services are performed by Palaris; or
(ii) the Agreement is terminated under clause 12
4. Service , Fee, Expenses and Payment
4.1. Palaris will:
(i) provide the Services to the Client for the Fee; and
(ii) invoice the Client for the relevant part of the Fee incurred by Palaris
4.2. The Client undertakes to pay Palaris the Fees and associated Expenses within 14 days after an invoice has been issued under clause 4.1 (i)
4.3. Unless outlined otherwise in the Proposal (i.e. as a fixed price inclusive of expenses) project related expenses are charged by Palaris as follows:
(i) An overnight meal allowance of $125 (or part thereof) is payable where an overnight stay away from their usual place of residence is incidental to and required of any person providing the Services to the Client on behalf of Palaris
(ii) Flights, accommodation and car hire if not booked and paid for directly by the client, will be charged at cost plus 10% if booked and paid for by Palaris; and
(iii) Travel using a Palaris vehicle will be charged at $1.02 cents per kilometre.
4.4. If the Client disputes an amount payable in an invoice issued by Palaris under this Agreement, the Client shall pay (and must not delay payment of) the undisputed amount pending determination of the Dispute pursuant to clause 16 of this Agreement. If the resolution of the Dispute determines that the Client is to pay an amount to Palaris, the Client will pay that amount upon resolution of the Dispute without delay.
4.5. The Client agrees that, should it fail to pay Palaris the relevant part of the Fee and/or Reimbursable Expenses within the time specified in clause 4.2, it will incur interest at the Overdraft Business Rate published by Westpac Banking Corporation plus 2% from the date payment was due until the amount is paid in full (with interest calculated daily on the basis of a 365 day year). The Client agrees to pay interest immediately upon receipt of an invoice for the interest from Palaris. Interest rates applicable may be accessed at https://www.westpac.com.au/business-banking/loans-finance
4.6. The Client must not set-off or deduct from any payment or invoice due under this Agreement, the amount of any claim, debt or liability owed by Palaris to the Client unless the Client first obtains Palaris’ prior written consent.
5. Variation
5.1. Any variation to the scope of the services as outlined in the Proposal shall be subject to the following conditions:
(i) In the first instance, the Client’s nominated representative must initially discuss with Palaris’ nominated project manager
(ii) Palaris will respond with a formal written variation which will outline:
• the agreed variation scope, the fee and the payment arrangements for the variation
• if the variation affects Palaris’ ability to perform the original scope of services under the project terms including agreed completion date
• any other change the variation will have on the project terms generally
(iii) The Client must formally agree in writing to the variation proposal before Palaris will commence work on the scope of work within the variation
(iv) Any variation will take effect from the date on which the Parties execute the variation proposal
(v) Any variation will be covered by the provisions of the Agreement unless specifically otherwise stated in the agreed formal written variation. To the extent the provisions of this Agreement conflict with the provisions of the Proposal, the provisions of this agreement prevails.
6. Tax and Accounting
6.1. The Client acknowledges that the Fee is calculated exclusive of any applicable taxation, including any applicable GST.
7. Performance of Services
7.1. This Agreement applies to the Services whether they were performed by Palaris before, on or after the Date of this Agreement.
7.2. Palaris is entitled to a reasonable extension of time for the performance of the Services where it is delayed by an event beyond its reasonable control.
8. Responsibilities of Palaris
8.1. Palaris will:
(i) perform the Services promptly and with due care and skill;
(ii) comply with all reasonable directions of the Client made pursuant to this Agreement;
(iii) make reasonable enquiries to ascertain the requirements of the Client regarding the Services;
(iv) inform the Client if it becomes aware of any matter which may materially affect the scope of the Services;
(v) consult the Client as reasonably required by the Client, regarding the carrying out of the Services;
(vi) use reasonable endeavours to cooperate with the Client and its agents regarding the provision of the Services; and
(vii) hold insurances required under legislation relating to its business and its own requirements
9. Responsibilities of the Client
9.1. The Client will:
(i) from time to time, provide Palaris with relevant current information and/ or documents in the possession or control of the Client in a timely manner, sufficient to enable Palaris to carry out the Services;
(ii) promptly provide further information if Palaris informs the Client that Palaris requires further information to enable it to perform the Services so as to not delay the delivery of services in accordance with the agreed timeframe or project schedule,
(iii) use reasonable endeavours to provide Palaris with accurate information relating to the Services;
(iv) use reports only in the manner prescribed by Palaris, or as otherwise agreed between the Parties;
(v) provide Palaris reasonable access to all sites under the Client’s control to enable Palaris to perform the Services
9.2. The Client shall not rely upon the Contract Documents except strictly in accordance with their terms and scope and only for the express purposes for which they are created (as set out in the Proposal or otherwise prescribed in writing by Palaris to the Client).
9.3. The Client shall not disclose the Contract Documents to any third party without Palaris’ prior written and fully informed consent.
10. Representations
10.1. The Client represents and warrants to Palaris that, as at the date hereof and at all material times thereafter:
(i) the Client is not bankrupt, insolvent or under external administration;
(ii) the Client is adequately insured with a reputable insurer;
(iii) there are no current or pending legal proceedings against the Client or its directors or shareholders;
(iv) all corporate authorisations and approvals necessary to enter into this Agreement have been obtained;
(v) all governmental licenses and approvals necessary to enter into this Agreement and to carry on the Client’s business have been obtained;
(vi) the Client has not withheld any information material to Palaris’ decision to enter into this Agreement; and
(vii) the Client’s signatory/ (ies) hereto are duly authorised to sign on the Client’s behalf
10.2. The Client must immediately notify Palaris if any of these representations and warranties cease to be true and correct at any time.
11. Liability and Indemnity
11.1. The Parties expressly agree that any liability or liabilities of Palaris to the Client arising out of or in connection with the performance or non-performance (or delay in performance or part-performance, as the case may be) of the Services shall be limited in aggregate to the amount representing the Fee payable by the Client for the Services under this Agreement.
11.2. In no event and at no time shall Palaris be liable to the Client for any indirect, incidental, consequential, special, exemplary or punitive loss or damage (including loss of opportunity, loss of revenue, loss of business, loss of profit, loss of any contract or any other economic or financial loss howsoever caused) of the Client arising out of or in connection with the performance or non-performance (or delay in performance or part-performance, as the case may be) of the Services.
11.3. Except as specifically provided in this Agreement, Palaris does not give any warranty and shall not be liable in relation to the performance or non-performance of the Services except to the extent, if any, required by law.
11.4. The Client shall indemnify Palaris and hold Palaris harmless from and against all claims, expenses, losses, damages or liability suffered or incurred by Palaris due to circulation or use of any Contract Documents by the Client or any related party of the Client, other than for their intended purpose.
12. Termination and Suspension
12.1. Either Party may terminate this Agreement:
(i) immediately by giving notice in writing to the other Party if the other Party experiences an Insolvency Event; or
(ii) if the other Party is in substantial breach of this Agreement and that breach has not been remedied within 14 days after receipt by the non-breaching Party of a written notice identifying the breach and requiring it to be remedied
12.2. Palaris may suspend or terminate this Agreement if the Client does not pay any amount owed to Palaris for more than 14 days from the due date.
12.3. Upon termination of this Agreement, Palaris is:
(i) immediately entitled to payment of that portion of the Fee and Expenses in respect of the Services performed up to and including the date of termination and any interest payment on that amount as calculated under clause 4.5; and
(ii) where it has terminated the Agreement pursuant to clause 12.1 or 12.2, entitled to recover any costs, losses and damages suffered or incurred by it arising out of or in connection with any breach of the contract by the Client or the termination of the Agreement
12.4. Palaris may suspend performance of this Agreement at any time pending the determination of a Dispute under clause 16.
13. Force Majeure
13.1. Where Palaris is unavoidably delayed or prevented from providing the Services for a reason beyond Palaris’ reasonable control, then the timeframe for the provision of the Services will be extended by a reasonable period or as otherwise agreed between the Parties.
13.2. Nothing shall entitle the Client to suspend payment for Services or terminate this Agreement due to any such extension or delay arising during the term of this Agreement.
14. Confidential Information
14.1. The Parties agree and undertake to keep confidential and not disclose to any third party without the prior written consent of the other Party, any Confidential Information which may become known to the Party as a result of this Agreement and the provision of the Services.
14.2. Each Party acknowledges and agrees that clause 14.1 will survive the expiration or termination of this Agreement for a period of 5 years.
14.3. Following the expiration or earlier termination of this Agreement, each Party must deliver to the other Party any Confidential Information it has received from that Party in relation to this Agreement, within a reasonable time after a request is made by that other Party for the information.
15. Intellectual Property Rights
15.1. The Parties acknowledge that each Party retains title to its Background IP.
15.2. Subject to clause 15.1, all right title and interest in any Intellectual Property Rights in the Contract Documents vests in and belongs to Palaris immediately upon their creation.
15.3. Palaris grants the Client a licence to use the Contract Documents only for the purposes for which those documents are prepared and provided to the Client, unless otherwise agreed to by the Parties in writing. Granting of the license is subject to full payment of fees associated with the project by the client.
15.4. The licence in clause 15.3 terminates on the termination of this Agreement by Palaris pursuant to clauses 12.1(i), 12.1(ii) or 12.2.
15.5. Nothing in this Agreement grants the Client any Intellectual Property Rights in the Contract Documents other than the licence described in clauses 15.3 and 15.4.
15.6. For the avoidance of doubt, unless stated otherwise in the Proposal, the Client is prohibited from using the Contract Documents to assist in or facilitate a sale of any of the Client’s assets, interests or undertakings without Palaris’ prior written consent (which may be given or withheld or given on conditions at Palaris’ absolute and unfettered discretion).
15.7. The Parties agree and acknowledge that damages may not be a sufficient remedy in the event of breach of any of the provisions of clause 15 and each Party consents to the other Party initiating and bringing urgent or interlocutory proceedings seeking injunctive relief to protect their Intellectual Property Rights in the event of any actual or anticipated breach.
16. Dispute Resolution
16.1. Subject to clauses 16.5 and 16.6, if a dispute arises between the Parties in connection with this Agreement (Dispute), the relevant dispute resolution procedures in this clause 16 must be complied with prior to the initiation of any action or proceeding.
16.2. A Party wishing to resolve a Dispute must give notice in writing to the other Party specifying reasonable details of the Dispute and requiring resolution of the Dispute by the Parties under clause 16 (Dispute Notice). The Dispute Notice must state that a Dispute has arisen and identify the matters in dispute with reasonable detail.
16.3. Within 7 days after the date on which a Dispute Notice is received by a Party, each Party must appoint a director or representative of that Party to promptly meet and engage in good faith discussions with the objective of resolving the Dispute by agreement. If, and only after a period of 21 days after the date on which a Dispute Notice is received, the Parties have not been able to resolve the Dispute, any Party may refer the Dispute to mediation in accordance with clause 16.4 only where the total potential claim exceeds $25,000.
16.4. The following procedure will apply in respect of a mediation:
(i) the mediation procedure shall take place in Sydney, New South Wales, Australia
(ii) the mediation shall be presided over by one mediator;
(iii) a Party wishing to refer the Dispute to mediation must give notice to the other Party in writing (Mediation Notice);
(iv) the mediator is to be appointed by agreement between the Parties;
(v) if within 14 days of the Mediation Notice, the Parties cannot agree on the appointment of a mediator, the Dispute shall be determined by an agreed mediator
(vi) the fees and expenses of the mediator will be borne by the Parties equally; and
(vii) the rules and procedures for the mediation shall be determined by the mediator and the Parties agree such rules and procedures so determined shall be binding upon the Parties
16.5. This clause 16 does not prejudice the rights of a Party at any time to seek injunctive, declaratory or other interlocutory relief (including for specific performance) against the other Party in order to protect or preserve its rights under the Agreement.
16.6. Nothing in this clause 16 shall prohibit Palaris from initiating and pursuing legal action against the Client in respect of any payment or invoice which has not been paid by the due date.
17. General
17.1. Where the Client comprises more than one legal person or entity, they shall be bound by and liable under this Agreement jointly and severally. In addition, where a Client has any subsidiaries or other related entities, they shall also be bound by and liable under this Agreement jointly and severally.
17.2. The rights of a Party under these Terms are cumulative and not exclusive of any rights provided by law.
17.3. All notices to be given under this Agreement must be in writing, in the English language, signed by the Party giving it, addressed to the other Party/ies at their registered address or any other address nominated by them for service of official documents, and dated the date of dispatch. Notices hereunder may be sent by hand, pre-paid mail, facsimile transmission or email.
17.4. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties and survives the expiry or termination of this Agreement. A Party does not have to incur expense or make payment before enforcing a right of indemnity under this Agreement.
17.5. Where this Agreement is signed by an attorney for a Party, the signatory/attorney declares and warrants that he or she is duly appointed and authorised to sign this Agreement on behalf of the Party and declares that he or she has no notice of the power of attorney being revoked.
17.6. If the Client is a trustee of any trust, this Agreement binds the Client personally in its own right as well as in its capacity as trustee of the Trust. The Client warrants and assures Palaris that any such trust is subsisting and that the Client is indemnified as trustee out of the trust assets for obligations and liabilities undertaken by the Client as trustee under this Agreement. The Client warrants and assures Palaris that entry into this Agreement does not breach the terms of the trust deed.
17.7. Palaris may assign, license or sub-contract all or any part of its rights and obligations hereunder (including Palaris’ interest in any order, invoice or credit of the Client) without the Client’s consent. The Client however shall not assign, license or sub-contract any part of its rights and obligations hereunder without Palaris’ prior written and fully informed consent.
17.8. Palaris reserves the right to review the terms and conditions of this Agreement at any time. If, following any such review, there is to be any change to these terms and conditions, Palaris shall give the Client not less than 14 days prior written notice of the change and, unless the Client disputes the change by referring the matter to dispute resolution under clause 16 within that 14 day period, the change shall take effect and shall become binding on the Parties on and from the expiry of the said 14 day period.
17.9. Neither Party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either Party.
17.10. This Agreement may be executed in one or more counterparts which taken together shall constitute one and the same instrument. The Parties may exchange duly signed counterparts by hand, mail or electronic means.
17.11. This Agreement and the Proposal (together with the documents referred to in them) comprise the entire agreement and understanding between the Parties concerning their subject matter replacing all other agreements and understandings concerning the subject matter of this Agreement and any statement or other term and condition of any nature not contained herein is of no force or effect.
17.12. Each Party undertakes that it will promptly execute all documents and do all things that another Party from time to time reasonably requires of it to effect, perfect or complete the terms and conditions of this Agreement and any matter contemplated by it.
17.13. If any provision in this Agreement is unenforceable, illegal or void in any jurisdiction then it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of this Agreement in that or any other jurisdiction, unless this would materially change the intended effect of this Agreement.
17.14. A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. A Party will not be liable for any claim by or loss of any other Party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.
17.15. This Agreement is governed by the laws of New South Wales, Australia, and is subject to the jurisdiction of the Courts of New South Wales, Australia. Any and all legal action and proceedings hereunder shall be initiated and held in Sydney in the State of New South Wales, Australia.
.
.
Palaris Europe Limited – Service Agreement
Service Agreement
PARTIES: The parties to this Service Agreement are:
Palaris Europe Limited Company No 8226553 (“Palaris”)
And
The Client (as listed on the front page of the Proposal and/or listed in Section C of the Services Agreement)
The Client has agreed to engage Palaris to provide the Services set out in this Service Agreement.
The Service Agreement means:
Part A – Terms of the Engagement
Part B – Amendments to Standard Terms (if any)
Part C – Formal Agreement by the Parties and
The Proposal
Part A – Terms of Engagement
- Definitions and Interpretation
Background IP means the Intellectual Property rights whether legal or equitable in a Party’s procedures, processes, systems, know-how, products, services and methodologies which are pre-existing or developed other than in the performance of the Services and which are made available to the other Party for the purposes of the Agreement.
Confidential Information means the terms of this Agreement and the information of the disclosing Party made available to the recipient Party at any time together with any information that concerns the business, operations, finances, plans or clients, customers or suppliers of the disclosing Party disclosed to or acquired by the receiving Party, but does not include information which is:
(i) or becomes, public knowledge, other than by a breach of this Agreement;
(ii) required to be disclosed by law;
(iii) information already in the recipient Party’s possession; or
(iv) information the recipient Party received from a third party not under any legal restriction
Contract Documents means any drawings, designs, reports, advices, records and other documents and concepts (whether in hard copy, electronic or other form) provided by Palaris to the Client as part of or in connection with the Services.
Date of Agreement means the date the Agreement is entered into by the Parties in Part C.
Dispute has the meaning set out in clause 16.1.
Dispute Notice has the meaning set out in clause 16.2.
Expenses means the project related expenses such as accommodation or transport specified in the Proposal and/or as outlined in clause 4.
Fee means each amount specified in the Proposal.
Insolvency Event means with respect to a Party, is any event when that Party ceases to carry on its business, or commits an act of bankruptcy, or becomes insolvent, or makes an assignment for the benefit of creditors, or files a petition in bankruptcy, or undertakes or is subject to any analogous event, or petitions or seeks the appointment of any receiver, trustee or similar liquidator in respect of all or a substantial part of its property, a or admits the material allegations of a petition or application filed with respect to it in any proceeding commenced in respect of it under applicable insolvency legislation, or takes any action for the purpose of effecting any of the foregoing.
Intellectual Property Rights is all beneficial and legal ownership and intellectual and industrial protection rights throughout the world, both present and future, including rights in respect of or in connection with any Confidential Information, copyright, moral rights, inventions, patents, trademarks, service marks and designs (whether or not now existing and whether or not registered or registrable) and includes any right to apply for the registration of such rights and all renewals and extensions.
Party means a party to this Agreement and Parties means both of them.
Proposal means the document provided by Palaris in relation to the provision of the Services.
Services means the services specified in the Proposal provided and as varied from time to time in accordance with the Agreement.
Tax means a tax, levy, duty, charge, deduction or withholding, however it is described, that is imposed by law or by a Governmental Agency, together with any related interest, penalty, fine or other charge.
Tax Authority means any governmental agency responsible for Tax, wherever situated.
1.2. The word “includes” in any form is not a term of limitation.
1.3. To the extent permitted by law, this Agreement in respect of the Services:
(i) embodies the entire understanding of the Parties, and contains the entire agreement of the Parties with respect to its subject matter; and
(ii) supersedes any prior written or other agreement of the Parties
1.4. A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force
1.5. To the extent the provisions of this Agreement conflict with the provisions of the Proposal, the provisions of this Agreement prevail.
1.6. This Agreement shall be construed and governed in accordance with the law of the United Kingdom.
1.7. This Agreement may only be varied by written agreement duly signed by the Parties.
1.8. Unless otherwise stated, all prices and amounts referred to under this Agreement, including any Fee, are in USD currency and are exclusive of VAT other applicable sales taxes.
1.9. Both Parties acknowledge and agree that:
(i) Palaris is engaged as the Client’s contractor and is not the Client’s employee or agent.
(ii) The Client engages Palaris in the Client’s own right and not as agent, administrator or representative of any third party. The Client shall be liable to Palaris under this Agreement notwithstanding any right of right of indemnity, reimbursement or contribution from any third party. The Client must not postpone any payment or other obligation due under this Agreement until it recovers under any such right indemnity, reimbursement or contribution. - Acceptance
2.1. The Client will accept this Agreement and the Proposal by:
(i) signing and exchanging this Agreement with Palaris; or
(ii) placing a purchase order on or with Palaris for any of the Services described herein; or
(iii) emailing acceptances of the Proposal with the Proposal attached; or
(iv) paying an invoice issued by Palaris for any of the Services described herein; or
(v) performing any other act or omission that indicates acceptance of this Agreement by the Client - Term
3.1. This Agreement commences on the Date of the Agreement and continues until:
(i) the Services are performed by Palaris; or
(ii) the Agreement is terminated under clause 12 - Service , Fee, Expenses and Payment
4.1. Palaris will:
(i) provide the Services to the Client for the Fee; and
(ii) invoice the Client for the relevant part of the Fee incurred by Palaris.
4.2. The Client undertakes to pay Palaris the Fees and associated Expenses within 14 days after an invoice has been issued under clause 4.1(i)
4.3. Unless outlined otherwise in the Proposal (i.e. as a fixed price inclusive of expenses) project related expenses including meals, flights, accommodation and car hire if not booked and paid for directly by the client, will be charged at cost plus 10% if booked and paid for by Palaris.
4.4. If the Client disputes an amount payable in an invoice issued by Palaris under this Agreement, the Client shall pay (and must not delay payment of) the undisputed amount pending determination of the Dispute pursuant to clause 16 of this Agreement. If the resolution of the Dispute determines that the Client is to pay an amount to Palaris, the Client will pay that amount upon resolution of the Dispute without delay.
4.5. The Client agrees that, should it fail to pay Palaris the relevant part of the Fee and/or Reimbursable Expenses within the time specified in clause 4.2, it will incur interest at the Base Rate published by the Bank of England plus 8% from the date payment was due until the amount is paid in full (with interest calculated daily on the basis of a 365 day year). The Client agrees to pay interest immediately upon receipt of an invoice for the interest from Palaris. Interest rates applicable may be accessed at www.bankofengland.co.uk
4.6. The Client must not set-off or deduct from any payment or invoice due under this Agreement, the amount of any claim, debt or liability owed by Palaris to the Client unless the Client first obtains Palaris’ prior written consent. - Variation
5.1. Any variation to the scope of the services as outlined in the Proposal shall be subject to the following conditions:
(i) In the first instance, the Client’s nominated representative must initially discuss with Palaris’ nominated project manager
(ii) Palaris will respond with a formal written variation which will outline:
• the agreed variation scope, the fee and the payment arrangements for the variation
• if the variation affects Palaris’ ability to perform the original scope of services under the project terms including agreed completion date
• any other change the variation will have on the project terms generally
(iii) The Client must formally agree in writing to the variation proposal before Palaris will commence work on the scope of work within the variation
(iv) Any variation will take effect from the date on which the Parties execute the variation proposal
(v) Any variation will be covered by the provisions of the Agreement unless specifically otherwise stated in the agreed formal written variation. To the extent the provisions of this Agreement conflict with the provisions of the Proposal, the provisions of this agreement prevails. - Tax and Accounting
6.1. The Client acknowledges that the Fee is calculated exclusive of any applicable taxation, including any applicable VAT.
6.2. The Client acknowledges and agrees that it will be pay all applicable Taxation to the Fee and in accordance with the regulatory requirements in the jurisdiction in which the Services are provided.
6.3. If any sum payable by the Client to Palaris under this Agreement (whether for a supply, or by way of reimbursement, or otherwise) is subject to Tax (whether by way of deduction or withholding or direct assessment of the recipient), that sum must be increased by the amount necessary to ensure that after deduction, withholding or payment of Tax, Palaris will receive an amount equal to the sum otherwise required to be paid. - Performance of Services
7.1. This Agreement applies to the Services whether they were performed by Palaris before, on or after the Date of this Agreement.
7.2. Palaris is entitled to a reasonable extension of time for the performance of the Services where it is delayed by an event beyond its reasonable control. - Responsibilities of Palaris
8.1. Palaris will:
(i) perform the Services promptly and with due care and skill;
(ii) comply with all reasonable directions of the Client made pursuant to this Agreement;
(iii) make reasonable enquiries to ascertain the requirements of the Client regarding the Services;
(iv) inform the Client if it becomes aware of any matter which may materially affect the scope of the Services;
(v) consult the Client as reasonably required by the Client, regarding the carrying out of the Services;
(vi) use reasonable endeavours to cooperate with the Client and its agents regarding the provision of the Services; and
(vii) hold insurances required under legislation relating to its business and its own requirements - Responsibilities of the Client
9.1. The Client will:
(i) from time to time, provide Palaris with relevant current information and/ or documents in the possession or control of the Client in a timely manner, sufficient to enable Palaris to carry out the Services;
(ii) promptly provide further information if Palaris informs the Client that Palaris requires further information to enable it to perform the Services so as to not delay the delivery of services in accordance with the agreed timeframe or project schedule,
(iii) use reasonable endeavours to provide Palaris with accurate information relating to the Services;
(iv) use reports only in the manner prescribed by Palaris, or as otherwise agreed between the Parties;
(v) provide Palaris reasonable access to all sites under the Client’s control to enable Palaris to perform the Services
9.2. The Client shall not rely upon the Contract Documents except strictly in accordance with their terms and scope and only for the express purposes for which they are created (as set out in the Proposal or otherwise prescribed in writing by Palaris to the Client).
9.3. The Client shall not disclose the Contract Documents to any third party without Palaris’ prior written and fully informed consent. - Representations
10.1. The Client represents and warrants to Palaris that, as at the date hereof and at all material times thereafter:
(i) the Client is not bankrupt, insolvent or under external administration;
(ii) the Client is adequately insured with a reputable insurer;
(iii) there are no current or pending legal proceedings against the Client or its directors or shareholders;
(iv) all corporate authorisations and approvals necessary to enter into this Agreement have been obtained;
(v) all governmental licenses and approvals necessary to enter into this Agreement and to carry on the Client’s business have been obtained;
(vi) the Client has not withheld any information material to Palaris’ decision to enter into this Agreement; and
(vii) the Client’s signatory/(ies) hereto are duly authorised to sign on the Client’s behalf.
10.2. The Client must immediately notify Palaris if any of these representations and warranties cease to be true and correct at any time. - Liability and Indemnity
11.1. The Parties expressly agree that any liability or liabilities of Palaris to the Client arising out of or in connection with the performance or non-performance (or delay in performance or part-performance, as the case may be) of the Services shall be limited in aggregate to the amount representing the Fee payable by the Client for the Services under this Agreement.
11.2. In no event and at no time shall Palaris be liable to the Client for any indirect, incidental, consequential, special, exemplary or punitive loss or damage (including loss of opportunity, loss of revenue, loss of business, loss of profit, loss of any contract or any other economic or financial loss howsoever caused) of the Client arising out of or in connection with the performance or non-performance (or delay in performance or part-performance, as the case may be) of the Services.
11.3. Except as specifically provided in this Agreement, Palaris does not give any warranty and shall not be liable in relation to the performance or non-performance of the Services except to the extent, if any, required by law.
11.4. The Client shall indemnify Palaris and hold Palaris harmless from and against all claims, expenses, losses, damages or liability suffered or incurred by Palaris due to circulation or use of any Contract Documents by the Client or any related party of the Client, other than for their intended purpose. - Termination and Suspension
12.1. Either Party may terminate this Agreement:
(i) immediately by giving notice in writing to the other Party if the other Party experiences an Insolvency Event; or
(ii) if the other Party is in substantial breach of this Agreement and that breach has not been remedied within 14 days after receipt by the non -breaching Party of a written notice identifying the breach and requiring it to be remedied
12.2. Palaris may suspend or terminate this Agreement if the Client does not pay any amount owed to Palaris for more than 14 days from the due date.
12.3. Upon termination of this Agreement, Palaris is:
(i) immediately entitled to payment of that portion of the Fee and Expenses in respect of the Services performed up to and including the date of termination and any interest payment on that amount as calculated under clause 4.5; and
(ii) where it has terminated the Agreement pursuant to clause 12.1 or 12.2, entitled to recover any costs, losses and damages suffered or incurred by it arising out of or in connection with any breach of the contract by the Client or the termination of the Agreement
12.4. Palaris may suspend performance of this Agreement at any time pending the determination of a Dispute under clause 16. - Force Majeure
13.1. Where Palaris is unavoidably delayed or prevented from providing the Services for a reason beyond Palaris’ reasonable control, then the timeframe for the provision of the Services will be extended by a reasonable period or as otherwise agreed between the Parties.
13.2. Nothing shall entitle the Client to suspend payment for Services or terminate this Agreement due to any such extension or delay arising during the term of this Agreement. - Confidential Information
14.1. The Parties agree and undertake to keep confidential and not disclose to any third party without the prior written consent of the other Party, any Confidential Information which may become known to the Party as a result of this Agreement and the provision of the Services.
14.2. Each Party acknowledges and agrees that clause 14.1 will survive the expiration or termination of this Agreement for a period of 5 years.
14.3. Following the expiration or earlier termination of this Agreement, each Party must deliver to the other Party any Confidential Information it has received from that Party in relation to this Agreement, within a reasonable time after a request is made by that other Party for the information. - Intellectual Property Rights
15.1. The Parties acknowledge that each Party retains title to its Background IP.
15.2. Subject to clause 15.1, all right title and interest in any Intellectual Property Rights in the Contract Documents vests in and belongs to Palaris immediately upon their creation.
15.3. Palaris grants the Client a licence to use the Contract Documents only for the purposes for which those documents are prepared and provided to the Client, unless otherwise agreed to by the Parties in writing. Granting of the license is subject to full payment of fees associated with the project by the client.
15.4. The licence in clause 15.3 terminates on the termination of this Agreement by Palaris pursuant to clauses 12.1(i), 12.1(ii) or 12.2.
15.5. Nothing in this Agreement grants the Client any Intellectual Property Rights in the Contract Documents other than the licence described in clauses 15.3 and 15.4.
15.6. For the avoidance of doubt, unless stated otherwise in the Proposal, the Client is prohibited from using the Contract Documents to assist in or facilitate a sale of any of the Client’s assets, interests or undertakings without Palaris’ prior written consent (which may be given or withheld or given on conditions at Palaris’ absolute and unfettered discretion).
15.7. The Parties agree and acknowledge that damages may not be a sufficient remedy in the event of breach of any of the provisions of clause 15 and each Party consents to the other Party initiating and bringing urgent or interlocutory proceedings seeking injunctive relief to protect their Intellectual Property Rights in the event of any actual or anticipated breach. - Dispute Resolution
16.1. Subject to clauses 16.5 and 16.6, if a dispute arises between the Parties in connection with this Agreement (Dispute), the relevant dispute resolution procedures in this clause 16 must be complied with prior to the initiation of any action or proceeding.
16.2. A Party wishing to resolve a Dispute must give notice in writing to the other Party specifying reasonable details of the Dispute and requiring resolution of the Dispute by the Parties under clause 16 (Dispute Notice). The Dispute Notice must state that a Dispute has arisen and identify the matters in dispute with reasonable detail.
16.3. Within 7 days after the date on which a Dispute Notice is received by a Party, each Party must appoint a director or representative of that Party to promptly meet and engage in good faith discussions with the objective of resolving the Dispute by agreement. If, and only after a period of 21 days after the date on which a Dispute Notice is received, the Parties have not been able to resolve the Dispute, any Party may refer the Dispute to mediation in accordance with clause 16.4 only where the total potential claim exceeds the (equivalent) value of £25,000 USD.
16.4. Any Dispute referred to arbitration under clause 16.3 shall be finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated into this Agreement by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
16.5. This clause 16 does not prejudice the rights of a Party at any time to seek injunctive, declaratory or other interlocutory relief (including for specific performance) against the other Party in order to protect or preserve its rights under the Agreement.
16.6. Nothing in this clause 16 shall prohibit Palaris from initiating and pursuing legal action against the Client in respect of any payment or invoice which has not been paid by the due date. - General
17.1. Where the Client comprises more than one legal person or entity, they shall be bound by and liable under this Agreement jointly and severally. In addition, where a Client has any subsidiaries or other related entities, they shall also be bound by and liable under this Agreement jointly and severally.
17.2. The rights of a Party under these Terms are cumulative and not exclusive of any rights provided by law.
17.3. All notices to be given under this Agreement must be in writing, in the English language, signed by the Party giving it, addressed to the other Party/ies at their registered address or any other address nominated by them for service of official documents, and dated the date of dispatch. Notices hereunder may be sent by hand, pre-paid mail, facsimile transmission or email.
17.4. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties and survives the expiry or termination of this Agreement. A Party does not have to incur expense or make payment before enforcing a right of indemnity under this Agreement.
17.5. Where this Agreement is signed by an attorney for a Party, the signatory/attorney declares and warrants that he or she is duly appointed and authorised to sign this Agreement on behalf of the Party and declares that he or she has no notice of the power of attorney being revoked.
17.6. If the Client is a trustee of any trust, this Agreement binds the Client personally in its own right as well as in its capacity as trustee of the Trust. The Client warrants and assures Palaris that any such trust is subsisting and that the Client is indemnified as trustee out of the trust assets for obligations and liabilities undertaken by the Client as trustee under this Agreement. The Client warrants and assures Palaris that entry into this Agreement does not breach the terms of the trust deed.
17.7. Palaris may assign, license or sub-contract all or any part of its rights and obligations hereunder (including Palaris’ interest in any order, invoice or credit of the Client) without the Client’s consent. The Client however shall not assign, license or sub-contract any part of its rights and obligations hereunder without Palaris’ prior written and fully informed consent.
17.8. Palaris reserves the right to review the terms and conditions of this Agreement at any time. If, following any such review, there is to be any change to these terms and conditions, Palaris shall give the Client not less than 14 days prior written notice of the change and, unless the Client disputes the change by referring the matter to dispute resolution under clause 16 within that 14 day period, the change shall take effect and shall become binding on the Parties on and from the expiry of the said 14 day period.
17.9. Neither Party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either Party.
17.10. This Agreement may be executed in one or more counterparts which taken together shall constitute one and the same instrument. The Parties may exchange duly signed counterparts by hand, mail or electronic means.
17.11. This Agreement and the Proposal (together with the documents referred to in them) comprise the entire agreement and understanding between the Parties concerning their subject matter, replacing all other agreements and understandings concerning the subject matter of this Agreement and any statement or other term and condition of any nature not contained herein is of no force or effect.
17.12. Each Party undertakes that it will promptly execute all documents and do all things that another Party from time to time reasonably requires of it to effect, perfect or complete the terms and conditions of this Agreement and any matter contemplated by it.
17.13. If any provision in this Agreement is unenforceable, illegal or void in any jurisdiction then it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of this Agreement in that or any other jurisdiction, unless this would materially change the intended effect of this Agreement.
17.14. A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. A Party will not be liable for any claim by or loss of any other Party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.
17.15. This Agreement is governed by the laws of the United Kingdom, and is subject to the jurisdiction of the Courts of London, United Kingdom. Any and all legal action and proceedings hereunder shall be initiated and held in London in the United Kingdom.
.
.
Palaris Canada Inc. – Service Agreement
Service Agreement
PARTIES: The parties to this Service Agreement are:
Palaris Canada Inc. (“Palaris”)
And
The Client (as listed on the front page of the Proposal and/or listed in Section C of the Services Agreement)
The Client has agreed to engage Palaris to provide the Services set out in this Service Agreement.
The Service Agreement means:
Part A – Terms of the Engagement
Part B – Amendments to Standard Terms (if any)
Part C – Formal Agreement by the Parties and
The Proposal
Part A – Terms of Engagement
- Definitions and Interpretation
Background IP means the Intellectual Property rights whether legal or equitable in a Party’s procedures, processes, systems, know-how, products, services and methodologies which are pre-existing or developed other than in the performance of the Services and which are made available to the other Party for the purposes of the Agreement.
Confidential Information means the terms of this Agreement and the information of the disclosing Party made available to the recipient Party at any time together with any information that concerns the business, operations, finances, plans or clients, customers or suppliers of the disclosing Party disclosed to or acquired by the receiving Party, but does not include information which is:
(i) or becomes, public knowledge, other than by a breach of this Agreement;
(ii) required to be disclosed by law;
(iii) information already in the recipient Party’s possession; or
(iv) information the recipient Party received from a third party not under any legal restriction
Contract Documents means any drawings, designs, reports, advices, records and other documents and concepts (whether in hard copy, electronic or other form) provided by Palaris to the Client as part of or in connection with the Services.
Date of Agreement means the date the Agreement is entered into by the Parties in Part C.
Dispute has the meaning set out in clause 16.1.
Dispute Notice has the meaning set out in clause 16.2.
Expenses means the project related expenses such as accommodation or transport specified in the Proposal and/or as outlined in clause 4.
Fee means each amount specified in the Proposal.
Insolvency Event means with respect to a Party, is any event when that Party ceases to carry on its business, or commits an act of bankruptcy, or becomes insolvent, or makes an assignment for the benefit of creditors, or files a petition in bankruptcy, or undertakes or is subject to any analogous event, or petitions or seeks the appointment of any receiver, trustee or similar liquidator in respect of all or a substantial part of its property, a or admits the material allegations of a petition or application filed with respect to it in any proceeding commenced in respect of it under applicable insolvency legislation, or takes any action for the purpose of effecting any of the foregoing.
Intellectual Property Rights is all beneficial and legal ownership and intellectual and industrial protection rights throughout the world, both present and future, including rights in respect of or in connection with any Confidential Information, copyright, moral rights, inventions, patents, trademarks, service marks and designs (whether or not now existing and whether or not registered or registrable) and includes any right to apply for the registration of such rights and all renewals and extensions.
Party means a party to this Agreement and Parties means both of them.
Proposal means the document provided by Palaris in relation to the provision of the Services.
Services means the services specified in the Proposal provided and as varied from time to time in accordance with the Agreement.
Tax means a tax, levy, duty, charge, deduction or withholding, however it is described, that is imposed by law or by a Governmental Agency, together with any related interest, penalty, fine or other charge.
Tax Authority means any governmental agency responsible for Tax, wherever situated.
1.2. The word “includes” in any form is not a term of limitation.
1.3. To the extent permitted by law, this Agreement in respect of the Services:
(i) embodies the entire understanding of the Parties, and contains the entire agreement of the Parties with respect to its subject matter; and
(ii) supersedes any prior written or other agreement of the Parties.
1.4. A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force
1.5. To the extent the provisions of this Agreement conflict with the provisions of the Proposal, the provisions of this Agreement prevail.
1.6. This Agreement shall be construed and governed in accordance with the laws of Ontario and the federal laws of Canada applicable therein. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario.
1.7. This Agreement may only be varied by written agreement duly signed by the Parties.
1.8. Unless otherwise stated, all prices and amounts referred to under this Agreement, including any Fee, are in Canadian dollars and exclusive of HST, GST or other applicable sales taxes.
1.9. Both Parties acknowledge and agree that:
(i) Palaris is engaged as the Client’s contractor and is not the Client’s employee or agent.
(ii) The Client engages Palaris in the Client’s own right and not as agent, administrator or representative of any third party. The Client shall be liable to Palaris under this Agreement notwithstanding any right of right of indemnity, reimbursement or contribution from any third party. The Client must not postpone any payment or other obligation due under this Agreement until it recovers under any such right indemnity, reimbursement or contribution. - Acceptance
2.1. The Client will accept this Agreement and the Proposal by:
(i) signing and exchanging this Agreement with Palaris; or
(ii) placing a purchase order on or with Palaris for any of the Services described herein; or
(iii) emailing acceptances of the Proposal with the Proposal attached; or
(iv) paying an invoice issued by Palaris for any of the Services described herein; or
(v) performing any other act or omission that indicates acceptance of this Agreement by the Client. - Term
3.1. This Agreement commences on the Date of the Agreement and continues until:
(i) the Services are performed by Palaris; or
(ii) the Agreement is terminated under clause 12 - Service , Fee, Expenses and Payment
4.1. Palaris will:
(i) provide the Services to the Client for the Fee; and
(ii) invoice the Client for the relevant part of the Fee incurred by Palaris.
4.2. The Client undertakes to pay Palaris the Fees and associated Expenses within 14 days after an invoice has been issued under clause 4.1 (i)
4.3. Unless outlined otherwise in the Proposal (i.e. as a fixed price inclusive of expenses) project related expenses including meals, flights, accommodation and car hire if not booked and paid for directly by the client, will be charged at cost plus 10% if booked and paid for by Palaris.
4.4. If the Client disputes an amount payable in an invoice issued by Palaris under this Agreement, the Client shall pay (and must not delay payment of) the undisputed amount pending determination of the Dispute pursuant to clause 16 of this Agreement. If the resolution of the Dispute determines that the Client is to pay an amount to Palaris, the Client will pay that amount upon resolution of the Dispute without delay.
4.5. The Client agrees that, should it fail to pay Palaris the relevant part of the Fee and/or Reimbursable Expenses within the time specified in clause 4.2, means the interest rate made available to Palaris by its primary Canadian bank lender for its commercial loans, plus 5%, from the date payment was due until the amount is paid in full (with interest calculated daily on the basis of a 365 day year). The Client agrees to pay interest immediately upon receipt of an invoice for the interest from Palaris.
4.6. The Client must not set-off or deduct from any payment or invoice due under this Agreement, the amount of any claim, debt or liability owed by Palaris to the Client unless the Client first obtains Palaris’ prior written consent. - Variation
5.1. Any variation to the scope of the services as outlined in the Proposal shall be subject to the following conditions:
(i) In the first instance, the Client’s nominated representative must initially discuss with Palaris’ nominated project manager
(ii) Palaris will respond with a formal written variation which will outline:
• the agreed variation scope, the fee and the payment arrangements for the variation
• if the variation affects Palaris’ ability to perform the original scope of services under the project terms including agreed completion date
• any other change the variation will have on the project terms generally
(iii) The Client must formally agree in writing to the variation proposal before Palaris will commence work on the scope of work within the variation
(iv) Any variation will take effect from the date on which the Parties execute the variation proposal
(v) Any variation will be covered by the provisions of the Agreement unless specifically otherwise stated in the agreed formal written variation. To the extent the provisions of this Agreement conflict with the provisions of the Proposal, the provisions of this agreement prevails. - Tax and Accounting
6.1. The Client acknowledges that the Fee is calculated exclusive of any applicable taxation, including any applicable GST or HST. - Performance of Services
7.1. This Agreement applies to the Services whether they were performed by Palaris before, on or after the Date of this Agreement.
7.2. Palaris is entitled to a reasonable extension of time for the performance of the Services where it is delayed by an event beyond its reasonable control. - Responsibilities of Palaris
8.1. Palaris will:
(i) perform the Services promptly and with due care and skill;
(ii) comply with all reasonable directions of the Client made pursuant to this Agreement;
(iii) make reasonable enquiries to ascertain the requirements of the Client regarding the Services;
(iv) inform the Client if it becomes aware of any matter which may materially affect the scope of the Services;
(v) consult the Client as reasonably required by the Client, regarding the carrying out of the Services;
(vi) use reasonable endeavours to cooperate with the Client and its agents regarding the provision of the Services; and
(vii) hold insurances required under legislation relating to its business and its own requirements - Responsibilities of the Client
9.1. The Client will:
(i) from time to time, provide Palaris with relevant current information and/ or documents in the possession or control of the Client in a timely manner, sufficient to enable Palaris to carry out the Services;
(ii) promptly provide further information if Palaris informs the Client that Palaris requires further information to enable it to perform the Services so as to not delay the delivery of services in accordance with the agreed timeframe or project schedule,
(iii) use reasonable endeavours to provide Palaris with accurate information relating to the Services;
(iv) use reports only in the manner prescribed by Palaris, or as otherwise agreed between the Parties;
(v) provide Palaris reasonable access to all sites under the Client’s control to enable Palaris to perform the Services
9.2. The Client shall not rely upon the Contract Documents except strictly in accordance with their terms and scope and only for the express purposes for which they are created (as set out in the Proposal or otherwise prescribed in writing by Palaris to the Client).
9.3. The Client shall not disclose the Contract Documents to any third party without Palaris’ prior written and fully informed consent. - Representations
10.1. The Client represents and warrants to Palaris that, as at the date hereof and at all material times thereafter:
(i) the Client is not bankrupt, insolvent or under external administration;
(ii) the Client is adequately insured with a reputable insurer;
(iii) there are no current or pending legal proceedings against the Client or its directors or shareholders;
(iv) all corporate authorisations and approvals necessary to enter into this Agreement have been obtained;
(v) all governmental licenses and approvals necessary to enter into this Agreement and to carry on the Client’s business have been obtained;
(vi) the Client has not withheld any information material to Palaris’ decision to enter into this Agreement; and
(vii) the Client’s signatory/ (ies) hereto are duly authorised to sign on the Client’s behalf
10.2. The Client must immediately notify Palaris if any of these representations and warranties cease to be true and correct at any time. - Liability and Indemnity
11.1. The Parties expressly agree that any liability or liabilities of Palaris to the Client arising out of or in connection with the performance or non-performance (or delay in performance or part-performance, as the case may be) of the Services shall be limited in aggregate to the amount representing the Fee payable by the Client for the Services under this Agreement.
11.2. In no event and at no time shall Palaris be liable to the Client for any indirect, incidental, consequential, special, exemplary or punitive loss or damage (including loss of opportunity, loss of revenue, loss of business, loss of profit, loss of any contract or any other economic or financial loss howsoever caused) of the Client arising out of or in connection with the performance or non-performance (or delay in performance or part-performance, as the case may be) of the Services.
11.3. Except as specifically provided in this Agreement, Palaris does not give any warranty and shall not be liable in relation to the performance or non-performance of the Services except to the extent, if any, required by law.
11.4. The Client shall indemnify Palaris and hold Palaris harmless from and against all claims, expenses, losses, damages or liability suffered or incurred by Palaris due to circulation or use of any Contract Documents by the Client, or any related party of the Client, other than for their intended purpose. - Termination and Suspension
12.1. Either Party may terminate this Agreement:
(i) immediately by giving notice in writing to the other Party if the other Party experiences an Insolvency Event; or
(ii) if the other Party is in substantial breach of this Agreement and that breach has not been remedied within 14 days after receipt by the non-breaching Party of a written notice identifying the breach and requiring it to be remedied
12.2. Palaris may suspend or terminate this Agreement if the Client does not pay any amount owed to Palaris for more than 14 days from the due date.
12.3. Upon termination of this Agreement, Palaris is:
(i) immediately entitled to payment of that portion of the Fee and Expenses in respect of the Services performed up to and including the date of termination and any interest payment on that amount as calculated under clause 4.5; and
(ii) where it has terminated the Agreement pursuant to clause 12.1 or 12.2, entitled to recover any costs, losses and damages suffered or incurred by it arising out of or in connection with any breach of the contract by the Client or the termination of the Agreement
12.4. Palaris may suspend performance of this Agreement at any time pending the determination of a Dispute under clause 16. - Force Majeure
13.1. Where Palaris is unavoidably delayed or prevented from providing the Services for a reason beyond Palaris’ reasonable control, then the timeframe for the provision of the Services will be extended by a reasonable period or as otherwise agreed between the Parties.
13.2. Nothing shall entitle the Client to suspend payment for Services or terminate this Agreement due to any such extension or delay arising during the term of this Agreement. - Confidential Information
14.1. The Parties agree and undertake to keep confidential and not disclose to any third party without the prior written consent of the other Party, any Confidential Information which may become known to the Party as a result of this Agreement and the provision of the Services.
14.2. Each Party acknowledges and agrees that clause 14.1 will survive the expiration or termination of this Agreement for a period of 5 years.
14.3. Following the expiration or earlier termination of this Agreement, each Party must deliver to the other Party any Confidential Information it has received from that Party in relation to this Agreement, within a reasonable time after a request is made by that other Party for the information. - Intellectual Property Rights
15.1. The Parties acknowledge that each Party retains title to its Background IP.
15.2. Subject to clause 15.1, all right title and interest in any Intellectual Property Rights in the Contract Documents vests in and belongs to Palaris immediately upon their creation.
15.3. Palaris grants the Client a licence to use the Contract Documents only for the purposes for which those documents are prepared and provided to the Client, unless otherwise agreed to by the Parties in writing. Granting of the license is subject to full payment of fees associated with the project by the client.
15.4. The licence in clause 15.3 terminates on the termination of this Agreement by Palaris pursuant to clauses 12.1(i), 12.1(ii) or 12.2.
15.5. Nothing in this Agreement grants the Client any Intellectual Property Rights in the Contract Documents other than the licence described in clauses 15.3 and 15.4.
15.6. For the avoidance of doubt, unless stated otherwise in the Proposal, the Client is prohibited from using the Contract Documents to assist in or facilitate a sale of any of the Client’s assets, interests or undertakings without Palaris’ prior written consent (which may be given or withheld or given on conditions at Palaris’ absolute and unfettered discretion).
15.7. The Parties agree and acknowledge that damages may not be a sufficient remedy in the event of breach of any of the provisions of clause 15 and each Party consents to the other Party initiating and bringing urgent or interlocutory proceedings seeking injunctive relief to protect their Intellectual Property Rights in the event of any actual or anticipated breach. - Dispute Resolution
16.1. Subject to clauses 16.5 and 16.6, if a dispute arises between the Parties in connection with this Agreement (Dispute), the relevant dispute resolution procedures in this clause 16 must be complied with prior to the initiation of any action or proceeding.
16.2. A Party wishing to resolve a Dispute must give notice in writing to the other Party specifying reasonable details of the Dispute and requiring resolution of the Dispute by the Parties under clause 16 (Dispute Notice). The Dispute Notice must state that a Dispute has arisen and identify the matters in dispute with reasonable detail.
16.3. Within 7 days after the date on which a Dispute Notice is received by a Party, each Party must appoint a director or representative of that Party to promptly meet and engage in good faith discussions with the objective of resolving the Dispute by agreement. If, and only after a period of 21 days after the date on which a Dispute Notice is received, the Parties have not been able to resolve the Dispute, any Party may refer the Dispute to mediation in accordance with clause 16.4 only where the total potential claim exceeds $25,000.
16.4. The following procedure will apply in respect of a mediation:
(i) the mediation procedure shall take place in Toronto, Ontario
(ii) the mediation shall be presided over by one mediator;
(iii) a Party wishing to refer the Dispute to mediation must give notice to the other Party in writing (Mediation Notice);
(iv) the mediator is to be appointed by agreement between the Parties;
(v) if within 14 days of the Mediation Notice, the Parties cannot agree on the appointment of a mediator, the Dispute shall be determined by an agreed mediator
(vi) the fees and expenses of the mediator will be borne by the Parties equally; and
(vii) the rules and procedures for the mediation shall be determined by the mediator and the Parties agree such rules and procedures so determined shall be binding upon the Parties
16.5. This clause 16 does not prejudice the rights of a Party at any time to seek injunctive, declaratory or other interlocutory relief (including for specific performance) against the other Party in order to protect or preserve its rights under the Agreement.
16.6. Nothing in this clause 16 shall prohibit Palaris from initiating and pursuing legal action against the Client in respect of any payment or invoice which has not been paid by the due date. - General
17.1. Where the Client comprises more than one legal person or entity, they shall be bound by and liable under this Agreement jointly and severally. In addition, where a Client has any subsidiaries or other related entities, they shall also be bound by and liable under this Agreement jointly and severally.
17.2. The rights of a Party under these Terms are cumulative and not exclusive of any rights provided by law.
17.3. All notices to be given under this Agreement must be in writing, in the English language, signed by the Party giving it, addressed to the other Party/ies at their registered address or any other address nominated by them for service of official documents, and dated the date of dispatch. Notices hereunder may be sent by hand, pre-paid mail, facsimile transmission or email.
17.4. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties and survives the expiry or termination of this Agreement. A Party does not have to incur expense or make payment before enforcing a right of indemnity under this Agreement.
17.5. Where this Agreement is signed by an attorney for a Party, the signatory/attorney declares and warrants that he or she is duly appointed and authorised to sign this Agreement on behalf of the Party and declares that he or she has no notice of the power of attorney being revoked.
17.6. If the Client is a trustee of any trust, this Agreement binds the Client personally in its own right as well as in its capacity as trustee of the Trust. The Client warrants and assures Palaris that any such trust is subsisting and that the Client is indemnified as trustee out of the trust assets for obligations and liabilities undertaken by the Client as trustee under this Agreement. The Client warrants and assures Palaris that entry into this Agreement does not breach the terms of the trust deed.
17.7. Palaris may assign, license or sub-contract all or any part of its rights and obligations hereunder (including Palaris’ interest in any order, invoice or credit of the Client) without the Client’s consent. The Client however shall not assign, license or sub-contract any part of its rights and obligations hereunder without Palaris’ prior written and fully informed consent.
17.8. Palaris reserves the right to review the terms and conditions of this Agreement at any time. If, following any such review, there is to be any change to these terms and conditions, Palaris shall give the Client not less than 14 days prior written notice of the change and, unless the Client disputes the change by referring the matter to dispute resolution under clause 16 within that 14 day period, the change shall take effect and shall become binding on the Parties on and from the expiry of the said 14 day period.
17.9. Neither Party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either Party.
17.10. This Agreement may be executed in one or more counterparts which taken together shall constitute one and the same instrument. The Parties may exchange duly signed counterparts by hand, mail or electronic means.
17.11. This Agreement and the Proposal (together with the documents referred to in them) comprise the entire agreement and understanding between the Parties concerning their subject matter, replacing all other agreements and understandings concerning the subject matter of this Agreement and any statement or other term and condition of any nature not contained herein is of no force or effect.
17.12. Each Party undertakes that it will promptly execute all documents and do all things that another Party from time to time reasonably requires of it to effect, perfect or complete the terms and conditions of this Agreement and any matter contemplated by it.
17.13. If any provision in this Agreement is unenforceable, illegal or void in any jurisdiction, then it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from this Agreement without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of this Agreement in that or any other jurisdiction, unless this would materially change the intended effect of this Agreement.
17.14. A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. A Party will not be liable for any claim by or loss of any other Party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right.