LIABILITY
Force Majeure
Neither Party, nor its employees, officers, directors, or representatives shall be liable for failure to perform, or delay in performance, due to anything beyond the reasonable control of either Party including, without restricting the generality of the foregoing (collectively and separately the “Force Majeure”):
any fire, flood, natural disaster or other act of God;
strike, lockout, or other labour difficulty;
the act of any governmental authority;
the act or negligence of the other Party;
the failure of any telecommunication system or infrastructure of a third party upon which the Party is reliant to provide or receive the Services;
fuel or energy shortage;
unavailability of materials or equipment; or
delays in transportation.
In no event shall failure or inability to pay, generally, constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.
Insurance
Each Party shall each maintain reasonable insurance to cover itself and the other Party with respect to any activities relating to the Services that could possibly cause damage to the other Party.
Limitation of Liability Respecting Services
Neither party shall be obligated to perform any term or condition of this Agreement if the performance would violate any Applicable Laws.
Except for any wilful or professional misconduct or negligence by NOCLAND, its subsidiaries, contractors, suppliers, and other similar entities, or the officers, directors, employees, representatives, and agents of any of the foregoing (all such persons and entities as listed heretofore in this sentence, collectively, (the “NOCLAND Associates”), shall not be liable to Partner or to any third party for any loss, cost, damage, or other injury, whether in contract, tort, negligence, strict liability or otherwise, arising out of or in connection with:
Partner’s decision on the suitability of NOCLAND Services or Materials for managing some or all aspects of the Partner’s operation or that of their clients.
Partner’s use or non-use, or Partner’s reliance on or failure to rely on, the Services, or any other materials provided or made available by NOCLAND or its contractors in connection with this Agreement (collectively, the “NOCLAND Materials”); and
Any decisions made or not made, or actions taken or not taken, by Partner or any third party with regard to, in reliance on, or as a result of, use of the Services or any NOCLAND Materials.
Under no circumstances shall the NOCLAND Associates be liable to Partner or any third party for any indirect, consequential, incidental, punitive, special, or similar damages or costs (including, but not limited to, lost profits or data, loss of goodwill, loss of or damage to property, loss of use or downtime of facilities, equipment, or services, costs of cover, business interruption, and claims of third parties) arising out of or in connection with this Agreement or use of the Services or any NOCLAND Materials, even if it has been advised of the possibility in advance.
Except for indemnity obligations, the liability of NOCLAND to Partner will not, in the aggregate, exceed the fees paid by Partner under this Agreement during the three (3) months preceding the event giving rise to the claim or action.
This Section 8.03 will apply irrespective of the nature of the cause of action, demand or claim, including but not limited to, breach of contract (including fundamental breach), negligence, tort or any other legal theory, and will survive a fundamental breach or breaches of this Agreement or of any remedy contained herein.
Indemnity
Except for damages arising out of any breach of Section 9.01 or Section 8.05, Partner shall indemnify and hold harmless NOCLAND and its employees, officers, directors and representatives against any and all loss, cost (including lawyer fees and court costs), expense, damage, injury, liability, claim, penalty, fine, interest or cause of action resulting from the breach of this Agreement or from any act or omission by Partner or its employees, officers, directors and representatives.
NOCLAND General Indemnity: NOCLAND agrees to indemnify and hold harmless Partner and its employees, officers, directors, and representatives against any and all loss, cost (including lawyer fees and court costs), expense, damage, injury, liability, claim, penalty, fine, interest or cause of action related to any third party claim, proceeding or suit arising out of a breach of this Agreement by NOCLAND.
Indemnity Procedure: Where any claim is to be indemnified pursuant to this Section 8.04, the indemnified party shall give the indemnifying party:
prompt written notice of the claim or of any allegations or circumstances known to the indemnified party that could result in a claim;
all reasonable information and assistance from indemnified party that the indemnifying party may require to defend the claim; and
control of the defence of the claim, and all negotiations for its settlement or compromise thereof, during the period that the indemnifying party is diligently undertaking such defence in good faith, provided that the indemnifying party may not settle, acquire, or defend such claim in a manner that would result in any liability or admission of the indemnified party.
Limited Warranty
NOCLAND represents and warrants that it has sufficient rights to provide the Services to Partner and that, to the actual knowledge of NOCLAND, such provision of the Services by NOCLAND will not infringe or violate any patent, trademark, trade name, copyright, trade secret or other Intellectual Property Rights.
In the event of a breach of Section 8.05(a), as Partner’s sole remedy, NOCLAND shall either: acquire such third party rights as are necessary to permit NOCLAND to continue to provide the Services; provide replacement non-infringing Services which meet the specifications of Partner; or if neither (i) nor (ii) can be performed in a commercially reasonable fashion, remove such infringing component of the Services and refund the portion of the Service Fees associated therewith.
Subject to Section 8.05(e) and provided that Partner is currently in good standing under this Agreement, including payment of all Fees related to the Services, NOCLAND shall use commercially reasonable efforts to ensure that the Services are provided in a competent and workmanlike manner in accordance with Good Industry Practice, and shall correct any defects in the Services in accordance with Schedule 2 as applicable.
In the event of a breach of Section 8.05(b), Partner must provide NOCLAND with written notice reasonably describing any failure of the Services to satisfy the limited warranty set forth in Section 8.05(b). Subject to any service levels in Schedule 2 below, the repair or replacement of the applicable deficient portion of the Services shall be Partner’s sole and exclusive remedy for any such failure, unless repair or replacement is impracticable, in which case Partner shall be entitled to a refund of any Fees paid in respect of same.
EXCEPT AS SPECIFICALLY SET FORTH IN SECTIONS 8.05(a)-(d) OR OTHERWISE REFERENCED IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF EITHER PARTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, NOCLAND DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES WILL MEET PARTNER REQUIREMENTS, THAT THE SERVICES SHALL BE ENTIRELY WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL IMMATERIAL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. IN ALL OTHER RESPECTS, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
Use of Content
Partner acknowledges and accepts that some content, products and services available with or through the Services (“Content”) may be offensive or may not comply with applicable laws. Further, Partner acknowledges and accepts that neither NOCLAND nor its suppliers attempt to censor or monitor any Content. Partner also acknowledges and accepts that neither NOCLAND nor its suppliers have any obligation to monitor Partner’s use of the Services and, except as expressly provided in this Agreement, have no control over such use. Partner assumes total responsibility and risk for access to and use of Content and for use of the Services. NOCLAND and its suppliers assume no liability whatsoever for any claims or losses arising out of or otherwise relating to access to or use of Content by Partner.
Proprietary Rights
NOCLAND shall be the exclusive owner of all Intellectual Property Rights relating to the Services.
No patent, copyright, trademark, trade secret, Intellectual Property Right, or other technological or proprietary right is licensed, granted, or otherwise transferred by NOCLAND to Partner by this Agreement or otherwise, except for the right to benefit therefrom in the course of the use of the Services.
The Partner shall ensure that all applicable NOCLAND branding, especially “powered by NOCLAND” remains at the bottom of any NOCLAND software used by the Partner.
The Partner shall not knowingly use the Services in a manner that violates or infringes any Intellectual Property Rights of a third party or NOCLAND.
CONFIDENTIALITY
Compliance
Each Party shall comply with the Confidentiality Provisions set out in Schedule 1 of this Agreement.
MISCELLANEOUS
Waiver of Relief
Partner acknowledges that any default, forfeiture or assignment provisions contained in this Agreement are, in view of the risks inherent in the business to be conducted by Parties, reasonable and equitable. Partner waives any and all rights which it may have at law or in equity against default, forfeiture, or penalty if such provisions are invoked.
Further Assurances
Each Party shall at its own cost and expense, from time to time and without further consideration, promptly execute and deliver all documents, and take or cause to be taken all reasonable actions necessary or desirable to give effect to the provisions and intent of this Agreement.
Assignment
Neither this Agreement, nor any right, obligation, or any of the Services provided or received pursuant to this Agreement, may be assigned by Partner without the prior written consent of NOCLAND, which consent may be arbitrarily or unreasonably withheld by NOCLAND or may be subjected to any conditions solely determined by NOCLAND.
Independent Contractors
Each Party is an independent contractor. Nothing in this Agreement, and no action taken under this Agreement, shall constitute the Parties as partners or create the relationship of principal and agent, employer and employee, agency, partnership, joint venture or fiduciary, and no Party shall represent otherwise.
No Representations or Warranties
Neither Party makes any representation or warranty to the other Party, express or implied, collateral, statutory or otherwise, including any representation or warranty as to the merchantability or fitness for a particular purpose, including the performance, operation, condition, design, capabilities, suitability, durability or quality of the Services, or access to the Services, except as may be expressly provided for in this Agreement.
Previous, Entire and Binding Agreement
This Agreement constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior agreements, understandings, warranties, and representations between the Parties and their predecessors, whether written or oral and whether legally enforceable or not, relative to the matters provided for in this Agreement.
There are no collateral agreements, representations, warranties, inducements or other entitlements relating to the transaction provided for in this Agreement, or any part of it, or to NOCLAND generally, except as expressly provided for in this Agreement. This Agreement shall be binding upon the Parties only when signed by an authorized representative of each of the Parties.
Enurement
This Agreement shall be binding upon and shall enure to the benefit of the Parties and their permitted assigns, receivers, receiver-managers and trustees.
Waiver in Writing
No waiver by a Party of the enforcement of any provision of this Agreement, or of the breach of any provision of this Agreement, shall be effective unless it is contained in a written instrument signed by authorized representative of such Party. Any waiver shall affect only the matter specifically identified in the instrument granting the waiver and shall not extend to any other matter, provision, or breach.
Waiver
The failure of a Party to give notice to any other Party or to take any other steps in exercising any right, or in respect of the breach or non-fulfillment of any provision of this Agreement, shall not operate as a waiver of that right, breach, or provision, nor shall any single or partial exercise of any right preclude any other or future exercise of that right or the exercise of any other right, whether in law or in equity or otherwise. Acceptance of payment by a Party after a breach or non-fulfillment of any provision of this Agreement by the other Party shall not constitute a waiver of the provisions of this Agreement, other than any breach cured by such payment.
Time of the Essence
Time shall be of the essence of this Agreement.
Severability
In the event that any provision of this Agreement shall be adjudged to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the operation of any other provisions of this Agreement. Any invalid or unenforceable provision shall be deemed to have been deleted from this Agreement, as the case may be.
Use of Name
Each Party agrees that it will not use, suffer or permit to be used, directly or indirectly, the name of the other Party for any purpose without, in each instance, first obtaining the written consent of the other Party which may be reasonably denied.
Public Announcements
No news release or public announcement respecting the subject matter of this Agreement or any Party shall be made by any Party without the prior approval of the other Party, except to the extent necessary to comply with Applicable Laws including stock exchanges having jurisdiction in respect of the securities of the disclosing Party, in which case the disclosing Party shall forthwith deliver a copy of the news release or public announcement to the other Party.
No Third Party Beneficiaries
Nothing in this Agreement shall entitle any entity that is not a Party to this Agreement or their respective successors to any claim, cause of action, remedy or right of any kind in respect of this Agreement or the subject matter of this Agreement.
Attornment
Each Party irrevocably submits to and accepts the jurisdiction of the courts of the Province of Newfoundland and Labrador, Canada and all courts of appeal therefrom as regards any legal proceedings relative to this Agreement.
Each Party irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance in the courts of the Province of Newfoundland and Labrador and all courts of appeal therefrom as regards any legal proceedings relative to this Agreement.
Each of the Parties agrees that a final judgment of the courts of the Province of Newfoundland and Labrador, Canada or any court of appeal therefrom and in respect of which all appeal periods have expired without appeal shall be conclusive and may be enforced in other jurisdictions by legal proceedings on the judgment or in any other manner provided by law.
Partner agrees that, and consents to, any judgement rendered against Partner in favour of NOCLAND may be registered and enforced against Partner without any consideration of the merits.
Language of Agreement
The Parties have expressly agreed that this Agreement be drawn in the English language. Les parties aux presents ont expressement convenu que le prèsent contrat soit redigé en anglais.
Counterpart Execution
This Agreement may be executed in identical counterparts, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement.
SCHEDULE 1
CONFIDENTIALITY PROVISIONS
OBLIGATIONS ARISING FROM DISCLOSURE
During the course of the relationship established between the Parties pursuant to the Agreement, each Party may disclose to the other Party or permit the other Party access to certain Information, either directly or indirectly. Each disclosure of Information will be made or permitted upon the basis of the confidential relationship established between the parties by this Schedule and upon each Party’s agreement that, unless otherwise specifically authorized in writing by the other, it will:
use the Information solely for the purpose for which it was disclosed;
take all reasonable care and precautions, at least equal to the degree of care and precautions it takes to protect its own confidential or proprietary information, to keep the Information confidential;
not disclose, or allow the disclosure of, any Information before or after termination of the Agreement, except as permitted by this Schedule;
restrict disclosure of the Information only to its employees or other personnel, advisors, consultants and agents (collectively, “Representatives”) with a need to know the Information and who are bound to maintain the Information confidential;
notify each Representative that receives any Information of the requirements of this Schedule and of the restrictions on use and disclosure of Information imposed by this Schedule;
ensure that no Representative breaches or causes or allows to be breached any of the receiving Party’s obligations, and direct each Representative to abide by the terms of this Schedule;
not use, or allow to be used, any Information to compete with or in a manner detrimental or adverse to the commercial interests of the disclosing Party;
take all measures reasonably required to maintain the confidentiality and security of all Information of the disclosing Party that it uses to protect its own Information;
except in connection with the purpose for which Information is disclosed, not copy or duplicate such Information or knowingly allow anyone else to copy or duplicate such Information; and
promptly return to the disclosing Party, upon its request made before or after termination of the Agreement, or certify as destroyed, the Information in whatever form and regardless of whether such Information was made or compiled by the receiving Party or furnished by the disclosing Party, together with all copies.
it suspects or becomes aware of any unauthorized access, copying, use or disclosure of any Information of the disclosing Party:
immediately notify the disclosing Party of the details of such activities or suspected activities of which it is aware;
take all commercially reasonable steps to enforce against any person that is or may be engaging in such unauthorized activities any rights that the receiving Party has to require such person to comply with any obligation of confidence to the receiving Party and to cease such unauthorized activities; and
do all things, execute all documents and give all assistance reasonably required by the disclosing Party (other than financial assistance) to enable the disclosing Party to enforce against any person that is or may be engaging in such unauthorized activities any rights that the disclosing Party has to require such person to comply with any obligation of confidence to the disclosing Party and to cease such unauthorized activities.
EXCEPTIONS
The obligations under this Schedule shall not apply to any Information that the receiving Party can demonstrate to the disclosing Party’s reasonable satisfaction:
became public and generally known through no act or omission of the receiving Party or its Representatives;
was disclosed on a non-confidential basis in good faith to the receiving Party by a third Party that the receiving Party had reasonable grounds to believe had legitimate possession of the Information and the right to make such disclosure;
was in legitimate possession of the receiving Party prior to its disclosure by the disclosing Party to the receiving Party;
that the receiving Party is required by Applicable Laws to disclose, provided that, prior to disclosing any Information, the receiving Party shall promptly notify the disclosing Party of such requirement to disclose and take such steps as are reasonable, and cooperate with the disclosing Party, to lawfully limit such disclosure and to maintain the confidentiality of the Information in the hands of the receiving Party, including obtaining appropriate protective orders; or
is approved in writing by the disclosing Party for release or other use by the receiving Party according to the terms set out in such written approval.
The burden of demonstrating the applicability of any exception in this Section 2 shall be upon the Party seeking to rely upon any such exception.
DISCRETIONARY DISCLOSURE
Each Party acknowledges that, notwithstanding the execution of the Agreement, each Party maintains the sole and absolute discretion to determine what, if any, Information it will release to the other Party. The receiving Party acknowledges that the Information disclosed in any manner is proprietary to the disclosing Party.
NO WARRANTY
Each Party warrants that it has all requisite authorization and right to disclose any Information disclosed to the other Party. Each Party acknowledges and understands that the other Party makes no other representation or warranty in relation to any Information disclosed, including its adequacy, accuracy, or suitability for any purpose and, except as expressly otherwise agreed in writing, shall not be liable for any loss or damage arising from the use of the Information.
INTELLECTUAL PROPERTY
Each Party acknowledges and agrees that all Information shall be owned solely by the disclosing Party. Each Party further agrees that nothing contained in the Agreement shall be construed as granting any rights, by license or otherwise, to any Intellectual Property Rights in or concerning the disclosing Party’s Information, except as otherwise expressly provided.
INDEMNITY
The receiving Party shall indemnify and save harmless the disclosing Party from and against all losses, liabilities, damages, costs and expenses (including reasonable legal fees and disbursements) suffered or incurred by the disclosing Party as a result of a breach of a term of this Schedule by the receiving Party or its Representatives.
EQUITABLE REMEDIES
In the event of a breach or threatened breach of any term of the terms of this Schedule, the receiving Party agrees that the harm suffered or that may be suffered by the disclosing Party would not be compensable by monetary damages alone and, accordingly, that the disclosing Party shall, in addition to other available legal or equitable remedies, be entitled to the issuance of immediate injunctive relief, specific performance and any other remedies in law or equity for such breach or threatened breach of the receiving Party’s obligations hereunder. The receiving Party shall reimburse the disclosing Party for all reasonable costs and expenses, including reasonable legal fees and disbursements, incurred by the disclosing Party in attempting to enforce the obligations under this Schedule of the receiving Party or its Representatives.
INDEPENDENT ACTIVITIES
Each Party, as a disclosing Party, understands that the receiving Party may currently or in the future be developing information internally, or receiving information from a third party that may be similar to the disclosing Party’s Information. Accordingly, nothing in this Schedule shall be construed as a representation or warranty that the receiving Party will not develop products or services, or have products or services developed for it, or enter into any arrangement that, without violation of any of the provisions of this Schedule, compete with the products or services which are contemplated by, or which are the subject of, the disclosing Party’s Information or the purpose for which Information was disclosed.
NO IMPLIED OBLIGATIONS
Neither this Schedule, nor the disclosure or receipt of any Information, shall imply or confirm any intention to enter into any contract or other business relationship, or to purchase any product or service, by either of the Parties or any commitment by either of the Parties with respect to the present or future development, production or distribution of any product or service.
NON-SOLICITATION
Neither party shall, for the term of this agreement and for a period of one (1) year thereafter, directly solicit, recruit for employment, offer subcontracting opportunities to, or knowingly employ any employee of either Party without the prior written consent of the other Party whose consent can be denied acting reasonably.
TERMINATION AND SURVIVAL
In the event that the Agreement is terminated, this Schedule shall not apply to any Information disclosed after such termination but, notwithstanding the termination of the Agreement, shall continue to apply to any and all Information disclosed prior to the termination of the Agreement.