DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings:
“Materials” means any data, code and all sensitive materials provided by the Customer to use in the creation of the Deliverables. For example, user lists, student data, custom questions, executable files, etc..
“Deliverables” means any tangible property, including software media, delivered to Customer under this Service Contract, as specified in the Service Proposal.
“Project” means the combination of Services and Deliverables to be provided under this Agreement.
“Services” means any and all services specified in the Service Proposal (as defined below).
STATEMENT OF WORK HELIS Inc. (“HELIS”) shall perform and deliver the Project as set forth in the Service Proposal issued against and subject to the terms and conditions of this Agreement.
The Work which HELIS shall perform shall be specified in the Service Proposal (attached hereto as Attachment A) which will be written under the terms and conditions of this Agreement. The Service Proposal shall specify (i) description of Services and Deliverables, (ii) schedule for Deliverables, and (iii) price and payment schedule.
TERM The term of this Agreement shall commence on the date specified in the Service Contract, and shall continue thereafter until the end date specified in the Service Contract, or until terminated in writing by one of the parties, or as provided in Section 11 below.
TERMS OF PAYMENT
PRICE The Project will be performed on a firm, fixed-price basis or a time and materials basis, as indicated in the applicable Service Proposal. Any additional or unscheduled Services or Deliverables to be provided by HELIS outside of the Service Proposal must be mutually agreed upon in writing signed by both parties hereto referencing this Agreement.
TAXES The Project Price does not include, and Customer is responsible for, all taxes (except taxes on HELIS' income) tariffs, and any similar charges imposed upon or related to the Services or Deliverables or their delivery or use.
PAYMENT SCHEDULE Customer will receive invoices based upon the billing/payment schedule contained in the applicable Service Proposal. Invoices will contain a description of the Services or Deliverables provided. Assessment setup will not begin until the Initial Invoice is paid. Subsequent Invoices are due and payable within 30 days of the HELIS' invoice date. Interest may be charged on all amounts unpaid after 30 days at the annual rate of 1-1/2 percent per month or the highest legal rate, whichever is lower. If any invoice is not paid when due, HELIS may suspend the provision of Services and/or Deliverables without liability or penalty until final resolution of the matter.
DELIVERABLES Customer shall have exclusive unlimited ownership rights to all final output of deliverables developed under this Agreement. All of the foregoing shall be deemed to be work made for hire, except as hereafter specified, and belong to Customer, with Customer having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. Customer acknowledges that HELIS uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (HELIS proprietary items) that are proprietary to HELIS. It is agreed that these HELIS proprietary items shall remain the sole and exclusive property of the HELIS. HELIS grants Customer a perpetual, non-exclusive, paid-up license to use HELIS proprietary items subject to the following:
Customer may use HELIS proprietary items solely in connection with the products purchased hereunder, for the purpose for which those products were originally purchased.
Customer may not transfer, sell, or otherwise dispose of any HELIS proprietary items without the prior written consent of HELIS.
This license gives no title or ownership rights in HELIS proprietary items or related intellectual property to Customer.
Customer agrees to retain or reproduce on all copies of any HELIS proprietary items all copyright notices and other proprietary legends and all trademarks or service marks of HELIS or any third party.
Customer will have no rights to assign or sell the license granted herein to others.
If Customer orders any other products or services not listed in the Service Proposal, a separate licensing agreement shall be negotiated and shall become part of the applicable Service Proposal.
Customer grants HELIS a perpetual non-exclusive, paid-up license to use all portions of the deliverables first developed by HELIS during the performance of this Agreement, not to include content or any material provided to HELIS by Customer.
ACCEPTANCE The Deliverables, if any, shall be deemed accepted by Customer upon completion of the following acceptance test:
Immediately upon receipt of said Deliverables, Customer shall promptly perform testing of the Deliverables to confirm that the Deliverables perform in accordance with the documentation or other standards applicable thereto as set forth in the Service Proposal.
Customer shall either promptly provide HELIS with written acceptance of the Deliverables, or deliver to HELIS a detailed written statement of nonconformities to be corrected prior to Customer’s acceptance of the Deliverables. Unless otherwise agreed to in writing by the parties, HELIS will redeliver corrected Deliverables to Customer within a reasonable amount of time after receipt of such statement of nonconformities.
Following redelivery of corrected Deliverables, a new acceptance test shall be immediately commenced by Customer. Any such written statement of nonconformities shall provide sufficient detail to enable the HELIS to remedy the failure to conform to the Completion Criteria. If Customer fails to provide a written acceptance or a written statement of nonconformities within five (5) days of initial receipt of said Deliverables or such other mutually acceptable period as defined in the applicable Service Proposal, or within five (5) days of re-delivery of said corrected Deliverables or such other mutually acceptable period, the Deliverables shall be deemed immediately accepted by Customer.
WARRANTIES AND REMEDIES
HELIS warrants that with respect to any Deliverable assigned by HELIS to Customer that HELIS has the right to transfer title to Customer.
HELIS further warrants that to its knowledge the Deliverables do not infringe any intellectual property right held by a third party.
Customer’s sole and exclusive remedy and HELIS' only obligation for breach of the warranty hereunder will be, at HELIS' option, to correct any material errors in the provision of Services or to replace or repair Deliverables which do not conform to the warranty. In order for Customer to exercise this remedy, Customer must give HELIS written notice of such nonconformity within the warranty period, and HELIS must determine that any nonconformity did not arise due to any cause specified below. HELIS shall be given free and full access to deliverables to make corrections, and Customer shall promptly inform HELIS of any changes in the location of Deliverables during the warranty period. If this remedy is adjudged to have failed of its essential purpose, HELIS' total liability will be to refund the price paid to HELIS by Customer for the nonconforming Deliverables. The remedy provided by HELIS for breach of warranty does not include the following, which may be provided, at HELIS' sole option, at HELIS' then-current time and materials rates:
Repair of damage to Deliverables caused by Customer during unpacking.
Repair of damage caused by events beyond HELIS' reasonable control.
Repair of damage caused by Customer’s improper installation, relocation, or rearrangement of Deliverables.
Except for the warranties stated in this Section, HELIS DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST NON-INFRINGEMENT. HELIS expressly does not warrant that the operation of Deliverables which are software shall be uninterrupted or error-free; or that Deliverables will operate on any system, or with any software, other than the system with which the HELIS tested such Deliverables. The contractor does not warrant any third-party software development tools. HELIS specifically does not warrant the accuracy of any technical or subject matter content of the courseware or software that is based upon information or direction provided by Customer.
LIMITATION OF LIABILITY The total liability of HELIS to Customer from any cause whatsoever will be limited to the lesser of Customer’s actual damages or the Project price paid to HELIS for those Services and Deliverables in a Project that are the subject of Customer’s claim. In no event will either party be liable for SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, including but not limited to loss of profits, revenues, data or power, damage to or loss of the use of products, damage to property, claims of third parties, including personal injury or death, suffered as a result of provision of Services or use of Deliverables.
Time for Claims. All claims against HELIS must be brought within one (1) year after the cause of action arises and Customer waives any statute of limitations which might apply by operation of law or otherwise.
INDEMNIFICATION Customer shall defend, indemnify, and save HELIS harmless, at Customer’s own expense, against any action or suit brought for any loss, damage, expense or liability that may result by reason of an infringement of any patent, trademark, copyright, or trade secret based upon the normal and intended use of the Deliverables furnished to HELIS hereunder. Should any of the Deliverables furnished to HELIS hereunder become the subject of a claim of any infringement of a patent, trademark, copyright, or trade secret, Customer shall, at its option and expense, deliver non-infringing material, modify the material so that it becomes non-infringing, or procure for HELIS the right to continue using Customer’s infringing material.
Customer agrees to indemnify and hold HELIS harmless against all claims, liabilities, demands, damages, or expenses (including attorneys’ fees and expenses) arising out of or in connection with Customer’s use of the Deliverables.
FORCE MAJEURE Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure. In the event of such delay, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.
TERMINATION Termination of Project. Customer reserves the right to terminate a Project in whole or in part, upon 30 days written notice to HELIS. In the event the Project is terminated by Customer prior to completion, the HELIS shall use its best efforts to conclude or transfer the Project, as directed by Customer, as expeditiously as possible. HELIS shall not undertake further work, incur additional expenses, or enter into further commitments with regard to the Project after receiving such notice of termination from Customer, except as mutually agreed upon by the parties. In the event of termination of a Project as described above, the HELIS shall be entitled to compensation as follows:
The HELIS will retain a minimum of 50% of the total Project Fees. In addition, The HELIS will assess and provide documentation to the Customer of the level of completion of the Project and fees payable to the HELIS up to the time of HELIS' receipt of written notice of termination for work completed and in progress.
Reimbursement for any non-cancelable services and commitments entered into by HELIS, in connection with the Project being terminated, provided HELIS provides Customer with documentation of completion of work or expenses incurred.
Termination of the Project shall not affect either party's obligations in connection with any other ongoing Projects and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.
Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within 15 days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately. The right of either party to terminate this Service Contract, as herein provided, shall not be affected in any way by its waiver of, or failure to take action with respect to, any previous default.
DELAY OR SUSPENSION OF WORK If Customer’s acts or failure to act causes HELIS to delay or suspend performance of Services, HELIS and Customer will mutually agree to one of the following remedies:
The contractor will use reasonable efforts to continue performance as practicable under the circumstances and Customer will continue to make all scheduled payments, or
The contractor will re-assign personnel to extend HELIS' work schedule without liability, and Customer will pay all additional costs if any. Notwithstanding the above, HELIS shall have the right to invoice Customer for any work performed to date of suspension.
CONFIDENTIALITY HELIS and Customer acknowledge that during the course of the performance of a Project, information of a confidential nature may be disclosed between the parties. Such information, excluding the Deliverables and any other information incident to the Deliverables that a party could reasonably be expected to be provided to the other party as contemplated hereunder, shall be considered confidential information (“Confidential Information”). Neither party has the right to disclose the Confidential Information of the other, in whole or in part, to any third party, and neither party will make use of the Confidential Information of the other for its own or a third party’s benefit or in any way use such Confidential Information other than for the purposes of performance of this Agreement without the prior written consent of the disclosing party. Each party agrees to take all steps reasonable to protect the other’s Confidential Information from unauthorized use and/or disclosure. The parties agree not to copy in whole or in part, any Confidential Information nor modify the same in any way without prior written consent from the other party. Neither party will be liable to the other for the disclosure of Confidential Information if, as shown by clear and convincing evidence, the Confidential Information: (a) is generally known to the public at the time of disclosure by the disclosing party; or (b) becomes generally known to the public through no fault of the receiving party; or (c) was lawfully in the possession of the receiving party prior to signing this Agreement; or (d) is subject to applicable Canadian laws or a valid court order requiring disclosure of such Confidential Information.
In any judicial proceeding, it will be presumed that the Confidential Information in question constitutes protectable trade secrets of the disclosing party, and the receiving party shall bear the burden of proving that the Confidential Information was publicly or rightfully known or disclosed.
DATA MANAGEMENT In order to complete the Deliverables listed in the Service Contract, the Customer may send sensitive Materials via email, secure forms, etc.. i) HELIS will handle all Materials securely, enforcing strict handling methodologies further listed once the Service Contract is signed. ii) HELIS will keep all Materials securely using the methodology further described in HELIS’ Privacy Policy materials provided. iii) HELIS will not be responsible for Materials that are sent by the Customer via email or another unsecured and unapproved channels.
PUBLICITY HELIS may use Customer’s name or mark and identify Customer as a client of HELIS, on HELIS' website and/or marketing materials. The contractor may issue a press release, containing Customer’s name, related to any award under this Agreement. Neither party will use the other party's name or marks, refer to or identify the other party for any other reason, except as established in this section, without such other party's written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.
SUBCONTRACTING HELIS may, at its option, subcontract work under a Service Proposal but HELIS' use of subcontractors shall not affect its responsibilities under the applicable Service Proposal. Moreover, the HELIS shall be fully responsible for work done by its subcontractors within the scope of the applicable Service Proposal as it is for work done by its own employees. HELIS shall have written agreement(s) with its subcontractors that contain, at a minimum, clauses that are the same as or comparable to the sections of this Agreement regarding ownership rights and confidentiality of Customer’s materials.
GENERAL TERMS
This Service Contract shall be deemed to have been made, executed and delivered in the Province of Alberta and shall be construed in accordance with the laws of the Province of Alberta.
NOTICES Notices to be given by either party under this Agreement shall be sent by certified mail, express overnight delivery, to the attention of the other party.
SEVERABILITY AND ASSIGNMENT The invalidity or unenforceability, in whole or in part, of any provision in this Agreement, shall not affect in any way the remainder of the provisions herein. This Agreement may not be assigned by Customer without HELIS' consent.
ENTIRE AGREEMENT This Agreement, together with any other materials referenced in or expressly made a part of the Agreement, constitutes the final and entire Agreement between HELIS and Customer and supersedes all prior and contemporary agreements, oral or written.
COUNTERPARTS The Parties hereto agree that facsimile signatures shall be as effective as if originals. This Agreement may be executed via facsimile in any number of counterparts, all of which taken together shall constitute one and the same agreement.