Managed IT Service Agreement Terms and Conditions

Sunco Communication and Installation (“Sunco”) provides certain technology consulting and managed services as further described below. These terms of Service apply to anyone (“You”/”Customer”/”Client”/”The Client”) or anyone else who otherwise uses the Services on following execution of an Order Form.

 

THESE TERMS (WHICH TOGETHER WITH THE ORDER FORM ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.

 

1. DEFINITIONS

In this Agreement, unless otherwise expressly defined or the context otherwise requires:

(a) “Agreement” means these terms of service (“Terms”), any Order Forms and all related amendments.

(b) “Client” means the individual, company or other legal entity that has signed the Order Form and has agreed to be bound by the terms of this Agreement.

(c) “Confidential Information” means any oral, written or electronic data and information now or hereafter existing during the currency of this Agreement, relating to the business and management of either party which is treated by such party as confidential, to which access is granted or obtained by the other party, but does not include any data or information which (i) was known to the recipient prior to the disclosure to it by the other party; or (ii) was independently developed by the recipient as evidenced by records; or (iii) is subsequently lawfully obtained by the recipient from a third party, without breach of this Agreement by the recipient; or (iv) becomes publicly available other than through a breach of this Agreement; or (v) is disclosed where the other party has provided its prior written consent to such disclosure by the recipient; or (vi) is disclosed by legal requirement.

(d) “Data” means all information in hard copy or in electronic form, which is used in the performance of Services under this Agreement.

(e) “Intellectual Property Rights” means all right, title and interest in and to any and all intellectual and industrial property, including:

(a) any and all patents and applications therefore;

(b) any and all inventions, trade secrets, design, methods, processes and know-how;

(c) any and all copyrights, copyrights registrations and applications therefore, and all other rights corresponding thereto throughout the world;

(d) any and all trade names, corporate names, logos, common law trademarks, trademark registrations and applications therefore; and

(e) any and all computer programs, applications or Software whether in source, object or executable code and any proprietary rights in such programs, applications or software, including documentation and other materials or documents related thereto.

(f) “Service” means a service as specified in an Order Form, which Sunco provides to Client under this Agreement.

(g) “Order Form” means the order form, quote, purchase order or fee estimate submitted by Sunco and signed and returned by The Client in accordance with its terms, as amended or modified between the parties from time to time, which describes a Service to be provided by Sunco to The Client and any additional terms and conditions relating specifically to such Service and which incorporates these Terms by reference.

(h) “Software” means computer programs, regardless of format or medium, their documentation and specifications.

 

2. INTERPRETATION

In this Agreement, unless otherwise expressly provided or as the context otherwise requires:

(a) headings are solely for convenience of reference and are not intended to be complete or accurate descriptions of content or to be guides to interpretation of this Agreement or any part of it;

(b) an accounting term not otherwise defined in this Agreement has the meaning assigned to it, and every calculation to be made under this Agreement is to be made, in accordance with accounting principles generally accepted in Canada applied on a consistent basis;

(c) a reference to currency means Canadian currency or US currency as defined by the Order Form;

(d) a reference to a statute includes all regulations made thereunder, all amendments to the statute or regulations in force from time to time, and every statute or regulation that supplements or supersedes such statute or regulations;

(e) a reference to an entity includes any successor to that entity;

(f) a word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a corporate entity includes an individual, and vice versa;

(g) a reference to “approval”, “authorization” or “consent” means written approval, authorization or consent;

(h) if there is any conflict or inconsistency between the terms of the body of this Agreement and an Order Form, the terms of the Order Form will prevail;

(i) the word “including”, when following a general statement or term, is not to be construed as limiting the general statement or term to any specific item or matter set forth or to similar items or matters, but rather as permitting the general statement or term to refer also to all other items or matters that could reasonably fall within its broadest possible scope;

(j) a reference to a Part or Section is to a Part or Section of this Agreement.

 

3. SERVICES

(1) Agreement to Perform Services. Sunco agrees to perform and The Client agrees to accept the Services described in the Order Form in accordance with the terms and conditions of this Agreement. The parties agree that Sunco will perform the Services as an independent contractor and not as an employee, joint venturer or partner of Client.

(2) Early Service. If Sunco commences any Services prior to the signing of the related Order Form, The Client agrees to pay Sunco charges for such Services in accordance with the terms of the Order Forms or any amendments in writing thereto.

(3) Change Orders. Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows:

(a) Client shall submit a written request to Sunco specifying the additions or modifications to the Services desired (the “Change Notice”);

(b) if Sunco is prepared to add to or modify the Services as requested by The Client, it shall prepare and submit an amendment to the Order Form (the “Change Order”) to Client which shall include a description of the changes to the Services and any additional fees. On obtaining The Client’s written signature to the Change Order, the Change Order will become part of the Order Forms.

(4) Right to Subcontract. Sunco may, without the written consent of The Client, subcontract to any third party any of the Services to be provided to The Client hereunder. In the event Sunco subcontracts any of the Services to a third party service provider, Sunco shall be and remain fully responsible for any acts of such subcontractors.

(5) No Exclusivity. Client acknowledges that nothing in this Agreement obliges Sunco to devote all or substantially all of its time or attention to the Services and that nothing shall restrict or prevent Sunco from entering into agreements with other persons concerning the provision of similar services.

 

4. TERM, TERMINATION AND SUSPENSION OF SERVICE

(1) Term. The term of any Agreement shall continue until terminated in accordance with this section 4 unless otherwise specified in the applicable Order Form ( the “Term”).

(2) Termination for Cause. The Client may terminate this Agreement without liability (except for amounts due for Services provided up to the effective date of the termination) if Sunco:

(a) fails to provide the Services in accordance with the terms of this Agreement, such failure causes material harm to The Client and Sunco does not cure the failure within 30 days of receipt of notice in writing from The Client describing the failure in reasonable detail; or

(b) materially violates any other provision of this Agreement and fails to cure the violation within 30 days of receipt of notice in writing from The Client describing the violation in reasonable detail.

(3) Termination for Convenience. Either party may terminate for convenience on not less than 30 day’s prior notice. The Client agrees to pay Sunco within 30 days for all services performed by Sunco up to the date of termination that have not previously been paid.

(4) Termination by Sunco. Sunco may terminate this Agreement before the end of the Term without liability

(a) on 4 business days’ notice to The Client if The Client is overdue on the payment of any amount due under this Agreement;

(b) if The Client materially violates any other provision of this Agreement and fails to cure the violation within 10 days’ notice in writing from Sunco describing the violation in reasonable detail; or

(c) immediately on written notice upon The Client becoming insolvent or bankrupt.

(5) Suspension of Service. Sunco will be entitled to suspend the Service without liability if

(a) Sunco, acting reasonably, believes that the Service is being used in violation of this Agreement or any applicable law;

(b) The Client is in breach of any material term of this Agreement including, without limitation, failing to pay invoiced amounts in full within 30 days of the Due Date (defined in section 5(1) below); or

(c) Sunco is requested to do so by any law enforcement or governmental agency. The Client will not be able to access any files on Sunco’s servers during a suspension of Service. Sunco will use commercially reasonable efforts to give The Client advance notice in writing of a suspension of Service unless a law enforcement or governmental agency directs otherwise or suspension without notice is necessary to protect Sunco or its other customers. A suspension of Service under this subsection will not be considered a breach by Sunco of the terms of this Agreement.

 

5. FEES, INVOICING AND PAYMENT

(1) Fees, Payment and Dispute. Fees for Sunco’s Services will be specified in the Order Form. Unless otherwise stated within an Order Form, Sunco may invoice The Client in advance for charges for the Services to be provided in that forthcoming month. Payment of invoiced amounts will be due on the first day of the month in which Services will be provided (the “Due Date”). Amounts remaining unpaid will bear interest from the Due Date at 2% per month. If The Client wishes to dispute an amount that has been invoiced by Sunco, it will none the less make payment on the Due Date to Sunco as invoiced. If it is determined that the invoiced amount was excessive, any payment by The Client in excess of the amount Sunco is entitled to, will be refunded to The Client.

(2) Additional Fees. The Client will also be responsible to Sunco for all fees and charges associated with any additional services or incremental costs incurred by Sunco in providing the Services caused by The Client’s failure to:

(a) provide accurate Data in a prescribed format;

(b) perform any of its obligations under this Agreement; or

(c) provide Data at the time required for processing.

(3) Payment by Credit Card. If The Client pays any fees by credit card, The Client expressly authorizes Sunco or its agents to charge all fees, charges and expenses incurred under this Agreement to such card, and such authorization will survive termination of this Agreement until there are no fees, charges or expenses owing by The Client under this Agreement. If The Client uses a credit card and Sunco does not receive payment from the card issuer, The Client will pay all amounts due, upon demand by Sunco. The Client must notify Sunco of any changes to the card account including, without limitation, applicable account number or cancellation or expiration of the account, billing address or any other information that may prevent Sunco from charging the account.

(4) Taxes. The Client acknowledges that all applicable taxes, duties or government levies whatsoever are not included in the fees and expenses charged under this Agreement. The Client will make timely payment of all such taxes, duties or government levies related to this Agreement.

 

6. SUNCO’S RESPONSIBILITIES, REPRESENATIONS AND WARRANTIES

(1) Agreements. In the performance of Services, Sunco agrees to:

(a) perform the Services defined within each Order Form to the best of its ability and with the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances;

(b) liaise with The Client through The Client’s coordinator on matters related to the Services;

(c) notify The Client, whenever practicable, if expenses beyond the defined charges within an Order Form may be incurred;

(d) invoice The Client according to the terms of this Agreement and the applicable Order Form for the Services performed; and

(e) subject to Section 8(3), proceed according to The Client’s reasonable instructions for the disposition of The Client’s Data and supplies on the termination of any Order Form.

(2) Reasonable Attempts to Correct Errors on Notice. Sunco warrants that it will at its expense make commercially reasonable attempts to correct any errors for which Sunco is directly and solely responsible by rerunning the Service, provided that the Data necessary to correct such errors is available to Sunco; or at Sunco’s option provide a credit to The Client equivalent to the charge that would have been applicable for correcting that portion of the Service that is in error, such credit will be only for errors due solely to malfunction of a system or Software provided by Sunco or any error made by Sunco’s personnel in the performance of the Service. To obtain the rerun Service or the credit, The Client must notify Sunco in writing of such errors within thirty days of receipt of the Services believed to contain the errors.

 

7. CLIENT’S RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES

(1) Agreements. The Client agrees to:

(a) provide all necessary Data and any special forms or other required materials or information to Sunco on schedule or in a timely fashion to enable Sunco to provide the Services;

(b) ensure the accuracy, legibility, and completeness of all Data supplied to Sunco and be solely responsible for the results obtained from The Client’s use of any of the Services;

(c) liaise with Sunco through a coordinator The Client will identify, on matters related to the Services and authorize that coordinator to make decisions on behalf of The Client in relation to the implementation of this Agreement and the Services and any changes thereto;

(d) comply with Sunco’s security and operating procedures (as may be revised or amended by Sunco from time to time) when The Client’s employees or agents are interfacing with Sunco installed systems;

(e) control, and be responsible for the use of, account information, user ids and passwords related to the Services and, where required, when interfacing with Sunco installed systems;

(f) restrict The Client’s employees and agents from interfering with, and from any unauthorized use of Software and equipment which is owned by Sunco, in Sunco’s possession, or under Sunco’s control;

(g) provide remote access and reasonable physical access to The Client’s premises at all times and places as reasonably required by Sunco to perform the Services;

(h) provide all compatible telephone, computer, hardware and Software equipment and services necessary to access the Services, or the product created from the Services as the case may be; and

(i) perform any other activities as defined in the Order Forms.

(2) Client Representations. The Client represents and warrants to Sunco that:

(a) if The Client is an individual, that he or she is at least 18 years of age and has the legal capacity to enter into this Agreement,

(b) if The Client is not an individual, it has the power, capacity and authority to enter into this Agreement and this Agreement is enforceable in accordance with its terms,

(c) the information The Client has provided for the purpose of establishing an account with Sunco is accurate, and

(d) The Client has complied with and will continue to comply with all applicable privacy laws, has obtained all requisite rights to use the applicable Software and has obtained and will continue to obtain the requisite privacy consents in the collection and use of all information that may be collected on any website or maintained on any server hosted by Sunco.

(3) Choice of Services and Goods. Whilst Sunco will endeavour to provide advice to The Client, The Client is solely responsible for ensuring that their choice of Good or Service conforms to their requirements or desired outcome. Sunco is not liable for compensation, costs or damages resulting from incorrect selection of Goods or Services, or resultant delays in rectifying such errors. Sunco provides Services and Goods on the basis of information provided by The Client, and Sunco offers no warranty as to the suitability of the Services or Goods beyond the requirements as expressed by The Client.

(4) Personnel Training. The Client understands that errors made by the Sunco’s Personnel are a major potential source of security and data breaches and that the probability of such potential breaches may be greatly reduced by provision of proper training to The Client’s Personnel. The Client therefore agrees to provide, in a timely manner, all training as requested by Sunco to its employees, directors, officers, contractors, and other Personnel who will be given access to Sunco’s System.

 

8. DATA AND PRIVACY

(1) Ownership, Compatibility and Security. All Data supplied by The Client related to the performance of a Service remains The Client’s exclusive property. All supplied Data must be on media compatible with Sunco processing equipment and, where applicable, in the format which Sunco, acting reasonably, prescribes. Sunco will not be responsible or liable for the security or integrity of The Client’s Data during transmission via public telecommunications facilities (including the Internet) or services. Sunco recommends that The Client make its own arrangements to regularly backup all Data files and has no liability if any precautionary backups made by Sunco fail in whole or in part.

(2) Privacy Laws. The parties are each responsible for complying with any obligations applying respectively to them under the applicable data protection and personal information protection laws (“Privacy Laws”) governing The Client’s Data.

(3) Handling of Data after Termination or Suspension. The Client shall provide Sunco with instructions for the disposition of The Client’s Data at least 10 business days prior to the termination of this Agreement. If The Client does not provide such instructions in writing to Sunco within 14 business days from the date in which this Agreement is terminated or, if the Services have been suspended under Section 4(4), then 14 business days from the date in which the Services have been suspended, Sunco may dispose of The Client’s Data without liability to The Client. The Client agrees to pay all costs and expenses associated with disposing of The Client’s Data.

(4) Accuracy of Data Provided by Sunco. Any Data which Sunco provides under this Agreement is compiled from sources which Sunco considers to be reliable, however, Sunco does not represent or warrant the accuracy, completeness or usefulness of Data provided to The Client for use.

 

9. SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS

(1) Software. The Client agrees to allow Sunco to load any necessary management or support software which forms part of the Client Agreement and The Client is responsible for ensuring that any software that Sunco loads is in compliance with The Client’s policies and license agreements.

(2) License of Client Software and Intellectual Property. The Client is responsible for licensing all Software and for paying all associated licensing costs, which may be paid directly or by Sunco on behalf of The Client and invoiced to The Client. The Client grants to Sunco, solely for Sunco’s provision of the Services, a license during the Term to use any Intellectual Property Rights, including any Software, owned by or licensed to The Client by third parties and that is necessary for providing the Services to The Client and otherwise performing its obligations under this Agreement. With respect to any Intellectual Property Rights and Software used by Sunco to provide the Services, The Client represents and warrants that:

(a) The Client is either the owner of such Intellectual Property Rights or Software or is authorized by its owner to include it under this Agreement; and

(b) Sunco has the right during the Term to use such Intellectual Property Rights and Software for the purpose of providing the Services to The Client as contemplated by this Agreement.

(3) No Assurance of Compatibility. The Client acknowledges that Sunco makes no representation, warranty or assurance that The Client’s equipment and Software will be compatible with Sunco’s equipment, Software and systems or the Services.

(4) Inspection. Sunco may inspect any of The Client’s Software which requires access to system control program instructions, system libraries or other secure Data, and may deny such access on systems which are under Sunco’s control.

 

10. CONFIDENTIALITY AND SECURITY

(1) Limited Use. Sunco will not use any of The Client’s Confidential Information except in connection with the performance of the Services or the exercise of its rights under this Agreement and will take all reasonable precautions to maintain the confidentiality of The Client’s Confidential Information and to prevent the unauthorized disclosure to others of the Confidential Information. Sunco shall implement industry standard security procedures, such as appropriate firewall, encryption and access security measures but shall not be liable for damages caused to The Client by inadvertent breaches of confidentiality.

(2) Non-Disclosure. Sunco shall only disclose the Confidential Information to those of its employees and permitted agents and subcontractors who have a need to know and require access to the Confidential Information as may be reasonably necessary in the exercise of Sunco’s rights and performance of the Services under this Agreement. Notwithstanding anything to the contrary in this Agreement, Sunco will not be required to keep confidential, and may use or license without restriction, any ideas, concepts, know-how or techniques related to information processing which are developed by Sunco in the performance of Services.

(3) Permitted Disclosures. Notwithstanding the foregoing, Sunco shall be permitted to:

(i) monitor The Client’s use of the Services;

(ii) report to the appropriate authorities any conduct by The Client (or The Client’s customers or end users) that Sunco reasonably believes violates any applicable law,

(iii) provide any information, including Confidential Information, required by law or regulation to be disclosed, or in response to a formal or informal request from a law enforcement or government agency; and

(iv) disclose that Sunco is providing the Services to The Client and may include The Client’s name in promotional materials including press releases and on Sunco’s website.

(4) Good industry Practices. Sunco will implement measures in line with good industry practice to ensure the security of Sunco’s managed systems and the physical security of Sunco’s premises, but gives no warranty that data breaches and other breaches of security will not take place. Sunco does not warrant that any back-up of The Client’s data will be complete, error-free or up to date.

(5) Immediate Notification of Security Violation. If The Client discovers a security violation, or has any reason to suspect that a security violation is imminent, it must immediately notify Sunco in an appropriate way that does not further compromise security concerns.

(6) Disclaimer of Liability from Security Breach. If The Client suffers damage as a result of loss or corruption of The Client Data through a security violation, Sunco disclaims, and The Client releases Sunco, for any liability or damages arising in connection with such loss or corruption of The Client Data. The Client agrees that despite the best efforts of Sunco and/or The Client, the occurrence of a data or security breach may occur due to, without limitation, error by The Client and/or The Client Personnel, hardware or software malfunction, vulnerabilities in any Services provided, or Company error, and such event is, as such, within the reasonable expectations of The Client.

(7) Proper Security Measures. The Client must not do anything that may prejudice the security of Sunco’s System, and must take all reasonable measures necessary to ensure that:

(a) no unlawful access is gained to Sunco’s premises, Sunco’s System, or the Client System;

(b) no Malicious Code is introduced into Sunco’s System or The Client’s System; and

(c) The Client Data is safeguarded.

(8) Emergency Measures. If a security violation occurs, or Sunco is of the view that a security violation is imminent, Sunco may take whatever steps it considers necessary to maintain the proper functioning of The Client’s System including, without limitation, changing The Client’s access codes and passwords (or those of any user of The Client’s System).

(9) No Warranty. Sunco takes reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time limit.

(10) Full Cooperation. The Client must give its full cooperation to Sunco in any investigation that may be carried out by Sunco regarding a security violation.

(11) Third Party Access. If The Client is providing any service to third parties that makes use of Sunco’s systems, The Client must contractually bind those third parties to equivalent terms regarding policies and procedures regarding security as are set out in the Client Agreement.

(12) Inspection. Sunco may on prior written notice to The Client inspect The Client’s installation and Client equipment (if any) located on Sunco’s premises to ensure compliance with Sunco’s policies and procedures and the obligations of The Client under the Agreement between the parties.

 

11. LIMITATION OF LIABILITY AND EXCLUSIONS

(1) Sunco’s liability under this Agreement is limited to direct and actual damages that arise as a result of events within its direct and sole control in the following amount:

(a) damages for physical harm to persons or tangible personal property and real property caused by Sunco’s negligence or its willful or wanton misconduct will be limited to a cumulative maximum of $10,000; and

(b) any other direct and actual damages, including without limitation loss of Data, as may be established by The Client will be limited to the lesser of $10,000 or the charges paid to Sunco for the two-month period immediately before the month in which the Services which are the subject of the claim were provided or to be provided. In no event will Sunco’s cumulative liability for damages for all claims relating to a Service during any calendar year exceed the charges paid by The Client to Sunco for that Service during that calendar year.

(2) Under no circumstances is Sunco liable for damages of third parties claims against The Client for any reason, or for special, punitive, indirect, incidental or consequential damages, including but not limited to lost profits, lost business revenue or failure to realize expected savings, even if The Client has informed Sunco of possibility thereof, or for any liability to The Client with respect to anything done or omitted to be done in accordance with the terms of this Agreement or instructions properly received pursuant to this Agreement, if done in good faith and with reasonable care and without willful or wanton misconduct on Sunco’s part.

(3) The limitations and exclusions of liability in this Part 11 apply

(a) regardless of the basis on which The Client is entitled to claim, including but not limited to breach of contract, even if a fundamental breach, or tort, including but not limited to negligence or misrepresentation;

(b) to Sunco, its directors, officers, employees, agents, subcontractors and personnel; and

(c) to all claims that The Client may have against Sunco including without limitation, claims under Parts 10 or 12. The remedies of The Client in connection with any matter relating to this Agreement will be limited to those set forth in this Part 11.

(4) No claims or actions regardless of form may be brought by The Client more than twelve months after the facts giving rise to such claim or action have occurred, regardless of whether those facts by that time are known to, or ought reasonably to have been discovered by The Client.

(5) Exclusions. The Client acknowledges and agrees that the representations, warranties and covenants expressly contained in this Agreement are the only representations, warranties and covenants provided by Sunco concerning the Services, and there are no other representations, covenants, warranties or conditions, express or implied, including implied warranties or conditions of merchantable quality or fitness for a particular purpose, warranties of non-infringement or that the provision of the Services will be completely secure, uninterrupted or error-free, and those arising by statutory or otherwise in law or from a course of dealing or usage of trade, all of which are expressly denied and disclaimed. The Client acknowledges that there are risks inherent in use of the Internet that could result in the loss of privacy, confidential information and property, including any Data or information transmitted by any server designated as “secure”. The Client is solely responsible for the suitability of the Service chosen, and acknowledges that the Service is provided on an “as is” basis except as expressly stated in this Agreement. The Client confirms that it has not relied on any representation, warranty, condition or promise made by Sunco which has not been expressly stated in this Agreement.

 

12. INDEMNITIES

(1) Client Indemnity. The Client will indemnify and hold harmless Sunco, its affiliates, and their respective shareholders, directors, officers, agents and employees from and against any costs, losses, claims, damages, judgments, penalties, liabilities, expenses and other amounts of any kind or nature whatsoever (including reasonable legal fees and expenses) arising out of or related to or resulting from

(a) action taken or permitted to be taken by Sunco in good faith in reliance on instructions or orders received from The Client as to anything arising in connection with Sunco’s performance of its obligations under this Agreement;

(b) actual or alleged use of the Service in violation of this Agreement or any applicable law, including without limitation infringement of third party intellectual property rights, by any person regardless of whether such person has been authorized to use the Service by The Client, except for unauthorized use that is a direct result of Sunco’s negligence or failure to perform its obligations under this Agreement;

(c) actual or alleged breach by The Client of any of its obligations, whether contractual, statutory or implied, to its customers or end users;

(d) any dispute between persons who claim to have authority to act for The Client in connection with the control of the Customer’s account with Sunco; and

(e) the breach of any representation, warranty or covenant made by The Client under the terms of this Agreement.

(2) Sunco Indemnity. Subject to Part 11 of this Agreement, Sunco will indemnify and hold harmless The Client, its affiliates, and their respective shareholders, directors, officers, agents and employees from and against any costs, losses, claims, damages, judgments, penalties, liabilities, expenses and other amounts of any kind or nature whatsoever (including reasonable legal fees and expenses) arising out of or related to or resulting from action taken or permitted to be taken by The Client in good faith in reliance on instructions or orders received from Sunco as to anything arising in connection with The Client’s performance of its obligations under this Agreement.

 

13. NOTICES

(1) Notices delivered in person, email or facsimile will be effective on the date of such delivery. Notices issued by mail will be effective on the third business day following the date that the envelope containing the notice is post-marked unless between the time of mailing and the time the notice is deemed effective there is an interruption in postal service, in which case, the notice will not be effective until actually received. In the event of a postal strike or lockout, notices or demands under this Agreement must be delivered personally or by facsimile.

 

14. GENERAL

(1) This Agreement shall be governed by the laws of the Province of Alberta, and the laws of Canada applicable therein. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.

(2) The provincial and federal courts located in Alberta, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

(3) Neither party will be responsible for any failure to fulfil its respective obligations under this Agreement due to causes beyond its reasonable ability to control (such as due to an event of fire, flood, earthquake, element of nature or act of God, civil disorders or any similar events commonly referred to as “force majeure”) provided that the party affected by such cause has used and continues to use all reasonable efforts to perform its obligations and makes reasonable attempts to notify the other party in writing within five business days of its inability to fulfil its obligations under this Agreement.

(4) This Agreement constitutes the entire agreement between the parties concerning all the matters herein and supersedes all prior agreements, understandings, letters of intent, negotiations and discussions between the parties, whether oral or written. This Agreement cannot be amended or modified other than by a change made in writing and executed by the parties. No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.

(5) In the event that any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.

(6) The provisions of Sections 7(2), 10, 11 and 12 shall survive the termination of this Agreement for any reason. This Agreement may be executed in one or more counterparts, including by facsimile transmission, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement.