Master Services AGREEMENT

(Example and subject to change)

This master services agreement (the “Agreement“) is made as of [DATE] (the “Effective Date“), between [CLIENT NAME] (“Client“) and Ignite Alliance Corp. (“Contractor“).

In consideration of the mutual covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

ARTICLE 1

DEFINITIONS

1.1 Definitions

In this Agreement, unless a clear contrary intention appears:

      1. Agreement” means this agreement including any recitals to this agreement, together with the Online Terms of Use, in each case as amended, supplemented or restated from time to time.
      2. Confidential Information” means any information of Contractor and includes, without limitation, any financial, business, marketing, technical and scientific information, trade secrets, processes, designs and design concepts, drawings, data, formulae, plans, prototypes, specifications, know-how, improvements, inventions (whether patentable or not), tools, technology, business opportunities and other information whether or not related to or arising from the activities contemplated in this Agreement and whether disclosed verbally or otherwise. Notwithstanding the forgoing, Confidential Information does not include any information that:
        1. is in the public domain without such disclosure being a result, directly or indirectly, of a breach of this Agreement;
        2. was previously known to Client, reasonable proof of which lies upon Client;
        3. is developed by Client without reference to Confidential Information, reasonable proof of which lies upon Client; or
        4. was received by Client from a source (other than Contractor) and such information was not subject to obligations of confidence.
      3. Online Terms of Use” means the terms of use of Contractor’s online platform (available online at www.ignitecsg.com and www.ignitessg.com).
      4. Parties” means Client and Contractor, and “Party” means either one of them, as the context requires.
      5. Person” means any natural person, sole proprietorship, partnership, firm, body corporate, trust, joint venture, governmental authority or any incorporated or unincorporated entity or association of any nature.
      6. Representative” means, with respect to a Party, any director, officer or employee of such Party.
      7. Services” has the meaning given to it in Section 1.
      8. Statement of Work” or “SOW” means a statement of work in the form attached to this Agreement as Schedule A and executed by each Party.
      9. Term” has the meaning given to it in Section 10.1

1.2 Interpretation

        1. Any reference in this Agreement to gender includes all genders. Words importing the singular number only include the plural and vice versa. Where a term is defined, a grammatical variation of that term will have a corresponding meaning.
        2. The division of this Agreement into articles and sections and the insertion of headings are for convenience of reference only and do not affect the interpretation of this Agreement.
        3. All references in this Agreement to dollars, or to $ are expressed in Canadian currency, unless otherwise specifically indicated.
        4. In this Agreement (i) the words “including”, “includes” and “include” mean “including (or includes or include) without limitation”, and (ii) the phrase “the aggregate of”, “the total of”, “the sum of”, or a phrase of similar meaning means “the aggregate (or total or sum), without duplication, of”. Unless otherwise specified, the words “Article” and “Section” followed by a number mean and refer to the specified Article or Section of this Agreement.
        5. The Schedules attached to this Agreement, the Online Terms of Use, and all executed SOWs, form an integral part of it.

ARTICLE 2

GOODS AND SERVICES

 

2.1 Performance of Services

        1. Contractor shall provide the services set forth in each SOW (“Services“), and Client shall provide any assistance and cooperation necessary or convenient to facilitate the Services, or called for in an SOW. Contractor may employ subcontractors in the provision of Services, but Contractor will be responsible and liable for such subcontractor’s acts and omissions related to this Agreement.
        2. Contractor shall use reasonable efforts to meet any performance dates to render the Services specified in each SOW, and any such dates shall be estimates only.
        3. With respect to the Services, Client shall: (i) cooperate with Contractor in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Contractor, for the purposes of performing the Services; (ii) respond promptly to any Contractor request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Contractor to perform Services in accordance with the requirements of this Agreement; (iii) provide such materials or information as Contractor may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

2.2 Client’s Acts or Omissions

If Contractor’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Contractor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

2.3 Delivery of Goods

    1. The goods required in association with Contractor’s performance of the Services (“Goods“) will be delivered according to the timelines set out in the applicable SOW, or if not specified in such SOW, within a reasonable time after the receipt of such SOW.
    2. Unless otherwise agreed in writing by the Parties, Contractor shall deliver the Goods to the location(s) at which the Services are to be performed (as applicable, the “Delivery Point“) using Contractor’s standard methods for packaging and shipping such Goods. Client shall take delivery of the Goods upon delivery of such Goods to the Delivery Point. Client shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Goods at the Delivery Point.
    3. Contractor may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Client. Each shipment will constitute a separate sale, and Client shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the Goods for the project.
    4. If for any reason Client fails to accept delivery of any of the Goods at the Delivery Point, or if Contractor is unable to deliver the Goods at the Delivery Point on such date because Client has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Client; (ii) the Goods shall be deemed to have been delivered; and (iii) Contractor, at its option, may store the Goods until Client picks them up, whereupon Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

2.4 Non-delivery

      1. The quantity of any installment of Goods as recorded by Contractor on dispatch from Contractor’s place of business is conclusive evidence of the quantity received by Client on delivery unless Client can provide conclusive evidence proving the contrary.
      2. Contractor shall not be liable for any non-delivery of Goods (even if caused by Contractor’s negligence) unless Client gives written notice to Contractor of the non-delivery within fifteen (15) days of the date when the Goods would in the ordinary course of events have been received.
      3. Any liability of Contractor for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
      4. Client acknowledges and agrees that the remedies set forth in this Section 4 are Client’s exclusive remedies for the non-delivery of Goods. Except as provided under Section 2.4(c), or returns expressly permitted by Contractor on a case-by-case basis and subject to a restocking fee, all sales of Goods to Client are final and Client has no right to return Goods purchased under this Agreement to Contractor.

2.5 Title and Risk of Loss

Title and risk of loss passes to Client upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Client hereby grants to Contractor a lien on and security interest in and to all of the right, title and interest of Client in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Alberta Personal Property Security Act.

2.6 Inspection and Rejection of Non-conforming Goods

    1. Client shall inspect the Goods upon receipt, and for a period of three (3) days after receipt (“Inspection Period“). Client will be deemed to have accepted the Goods unless it notifies Contractor in writing of any Non-conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as is reasonably required by Contractor. “Non-conforming Goods” means only the following: (i) certain Goods shipped are different than the applicable products identified in the applicable SOW; or (ii) a product’s label or packaging incorrectly identifies its contents.
    2. If Client timely notifies Contractor of any Non-conforming Goods, Contractor shall, in its sole discretion, either: (i) replace such Non-conforming Goods with conforming Goods; or (ii) credit or refund the Price for such Non-conforming Goods, together with any reasonable shipping and handling expenses incurred by Client in connection therewith. Client shall ship, at its expense and risk of loss, the Non-conforming Goods to Contractor’s facility located at Suite 110, 6835 Railway Street S.E., Calgary, AB, T2H 2V6, Canada. If Contractor exercises its option to replace Non-conforming Goods, Contractor shall, after receiving Client’s shipment of Non-conforming Goods, ship to Client, at Client’s expense and risk of loss, the replaced Goods to the applicable Delivery Point.
    3. Client acknowledges and agrees that the remedies set forth in Section 6(b) are Client’s exclusive remedies for the delivery of Non-conforming Goods. Except as provided under Section 2.6(b), or returns expressly permitted by Contractor on a case-by-case basis and subject to a restocking fee, all sales of Goods to Client are final and Client has no right to return Goods purchased under this Agreement to Contractor.

ARTICLE 3

PRICES, INVOICING AND PAYMENT

 

3.1 Prices and Invoicing

      1. Client shall purchase the Goods and Services from Contractor at the prices (the “Prices“) set forth in each SOW.
      2. Client agrees to reimburse Contractor for all reasonable travel and out-of-pocket expenses incurred by Contractor in connection with the performance of the Services.
      3. All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Client. Client shall be responsible for all such charges, costs and taxes; provided, that Client shall not be responsible for any taxes imposed on, or with respect to, Contractor’s income, revenues, gross receipts, personnel or real or personal property or other assets.
      4. Contractor shall invoice Client according to the terms set out in each SOW.

3.2 Payment Terms

      1. Client shall pay all invoiced amounts due to Contractor within thirty (30) days from the date of Contractor’s invoice. Client shall make all payments hereunder by wire transfer, cheque or electronic funds transfer and in Canadian dollars.
      2. Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Contractor for all costs incurred in collecting any late payments, including, without limitation, legal fees solicitor-client basis. In addition to all other remedies available under these Terms or at law (which Contractor does not waive by the exercise of any rights hereunder), Contractor shall be entitled to suspend the delivery of any Goods or performance of any Services if Client fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
      3. Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Contractor, whether relating to Contractor’s breach, bankruptcy or otherwise.

ARTICLE 4

LIMITED WARRANTY

4.1 Limited Warranty

Contractor warrants to Client that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

4.2 Disclaimer of Warranties

    1. Unless otherwise stated in the Agreement, all Goods are products manufactured by a third party (“Third Party Products“). Third Party Products are not covered by any Contractor warranty, but may be covered by a manufacturer’s warranty. For the avoidance of doubt, Contractor makes no representations, conditions or warranties with respect to any Third Party Product, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise, including any: (i) condition or warranty of merchantability; (ii) condition or warranty of fitness for a particular purpose; (iii) condition or warranty against infringement of intellectual property rights of a third party; (iv) condition or warranty that any Third Party Products will be secure from hacking or other unauthorized intrusion or that Client data will remain private or secure; or (v) condition or warranty that any Third Party Products will protect or maintain the security of Client’s files, network, or endpoints from all malware, viruses or third party malicious attacks.
    2. Except for the warranties set forth in Section 1, Contractor makes no condition or warranty whatsoever with respect to the Goods or Services, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise, including any: (i) condition or warranty of merchantability; (ii) condition or warranty of fitness for a particular purpose; (iii) condition or warranty against infringement of intellectual property rights of a third party; (iv) condition or warranty that the Goods or Services will be secure from hacking or other unauthorized intrusion or that Client data will remain private or secure; or (v) condition or warranty that the Goods or Services will protect or maintain the security of Client’s files, network, or endpoints from all malware, viruses or third party malicious attacks.
    3. The Contractor shall not be liable for a breach of the warranties set forth in Section 1 unless: (i) Client gives written notice of the defective Services, reasonably described, to Contractor within fifteen (15) days of the time when Client discovers or ought to have discovered the defect; and (ii) Contractor reasonably verifies Client’s claim that the Services are defective.
    4. The Contractor shall not be liable for a breach of the warranty set forth in Section 1 if: (i) Client makes any further use of the applicable Goods after giving such notice; (ii) the defect arises because Client failed to follow Contractor’s oral or written instructions as to the storage, installation, use or maintenance of the Goods; or (iii) Client alters or repairs such Goods without the prior written consent of Contractor.
    5. Subject to Section 2(c) and Section 4.2(d), with respect to any Services subject to a claim under the warranty set forth in Section 4.1, Contractor shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
    6. The remedies set forth in Section 2(e) shall be the Client’s sole and exclusive remedy and Contractor’s entire liability for any breach of the limited warranties set forth in Section 4.1.

 

ARTICLE 5

LIMITATION AND LIABILITY

 

5.1 Limitation of Liability

      1. In no event shall Contractor be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this Agreement, whether or not the possibility of such damages has been disclosed in advance by Client or could have been reasonably foreseen by Client, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
      2. In no event shall Contractor’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Contractor for the Goods and Services sold under this Agreement.

 

ARTICLE 6

INSURANCE

 

6.1 Insurance

During the Term and for a period of one year thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Contractor’s request, Client shall provide Contractor with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Terms. Client shall provide Contractor with thirty (30) days’ advance written notice in the event of a cancellation or material change in Client’s insurance policy.

 

ARTICLE 7

CONFIDENTIAL INFORMATION

7.1 Obligations of Confidence

      1. For each disclosure of Confidential Information under this Agreement, Client is bound by an obligation of confidence to Contractor in regards to such Confidential Information. Therefore, except as may be specifically permitted in this Agreement in connection with performing its obligations under this Agreement, Client shall keep all Confidential Information in strict confidence and:
        1. may not disclose, either directly or indirectly, any Confidential Information to any third party, and
        2. may not use any Confidential Information in any manner whatsoever.
      2. Client will take sufficient precautions to prevent the unauthorized access, use or disclosure of any Confidential Information in its possession or control.
      3. Confidential Information may not be copied or recorded by Client in any manner whatsoever without the prior written consent of Contractor.
      4. If Client is requested or becomes legally compelled (by oral questions, interrogatories, requests for confidential information, documents, subpoena, civil investigative demand or otherwise) to disclose any Confidential Information, Client must provide Contractor with prompt written notice of such request or demand so that Contractor may, at Contractor’s option, seek a protective order, other appropriate remedy or obtain reliable assurances that the Confidential Information will be accorded confidential treatment. Client agrees to provide all reasonable assistance with same.

7.2 Disclosure to Representatives

Client may only make the Confidential Information available to those of its Representatives having a “need to know” and only as necessary for the Purpose.  Provided, however, in all cases those Representatives shall first be informed of the confidential nature of the Confidential Information and they must have agreed to keep the Confidential Information in strict confidence and to not use or disclose the Confidential Information except as required to carry out the Purpose.

7.3 Ownership

All right, title and interest, whether at law, in equity or otherwise, in the Confidential Information and anything derived from the Confidential Information is and will be in each case owned by Contractor.  Any Intellectual Property created by Client which is based upon or arises due to having access to any of the Confidential Information, whether in whole or part, will be owned by Contractor.  Client agrees to execute all necessary documents to effect the legal and beneficial transfer of all such ownership to Contractor.

7.4 Return of Confidential Information

    1. On request from Contractor, Client will promptly:
      1. return to Contractor all documents and other material that contain any Confidential Information of Contractor;
      2. deliver to Contractor or destroy, at Contractor’s direction, any notes, analyses, compilations, studies, materials or other documents which are prepared by Client and which are based on or contain any Confidential Information of Contractor; and
      3. permanently erase all Confidential Information stored electronically.
    2. On request from Contractor, Client will promptly deliver a certificate signed by a senior officer of Client confirming that Client has returned, destroyed and erased all Confidential Information as required in accordance with this Section 4.

7.5 No Implied Obligation or Warranty

    1. Nothing in this Agreement may be construed so as to require the disclosure of any Confidential Information to Client.
    2. Nothing in this Agreement nor the disclosure or review of the Confidential Information may operate to obligate either Party to enter into any further business relationship with the other Party.
    3. Unless otherwise provided in another written agreement signed by the Parties, Contractor makes no representation or warranty of any kind in respect of the Confidential Information, including correctness, accuracy, completeness or suitability for any particular purpose, and all Confidential Information is provided to Client strictly on an “as is” basis.

7.6 Continuing Obligations

The obligations and restrictions set out in this Agreement will continue for so long as any Confidential Information is or remains confidential or any obligation set out in this Agreement remains unfulfilled.

 

ARTICLE 8

NON-SOLICITATION

 

8.1 Non-Solicitation

Throughout Contractor’s performance of the Services and for a period of six (6) months after the completion of the Services, regardless of the reason for cessation of the relationship, Client shall not, without the advance written consent of Contractor (which Contractor may withhold in its sole discretion), directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, shareholder, proprietor, investor, financier, officer or director, or in any other individual or representative capacity:

  1. solicit, induce, encourage or facilitate employees or consultants of Contractor to leave the employment of, or consulting relationship with, Contractor including in favour of, or for the benefit of, Client; or
  2. solicit, induce, encourage or facilitate any entity that Client knows is a customer of Contractor to alter, modify, vary, diminish or cease such customer’s relationship with Contractor, including in favour of, or for the benefit of, Client.

 

ARTICLE 9

FORCE MAJEURE

9.1 Force Majeure

Contractor shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Contractor including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

ARTICLE 10

TERM AND TERMINATION

 

10.1 Term

This Agreement will be effective as of the Effective Date and, unless terminated pursuant to Section 10.2, will remain in force until Contractor has completed the performance of all Services under all SOWs (the “Term“).

10.2 Termination

In addition to any remedies that may be provided under this Agreement, Contractor may terminate this Agreement or any SOW with immediate effect upon written notice to Client, if Client:

  1. fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Client’s receipt of written notice of nonpayment;
  2. has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; or
  3. becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

 

ARTICLE 11

GENERAL

11.1 Notices

      1. Any notice, direction or other communication given regarding the matters contemplated by this Agreement (each a “Notice“) must be in writing, sent by personal delivery, courier or email (with confirmation of receipt) and addressed:

 

to Client at:

 

[Address]

[Email: ]

[Attention: ]

to Contractor at:

 

Suite 110, 6835 Railway Street SE

Calgary, Alberta, T2H 2V6

Canada

[Email: ]

[Attention: ]

  1. A Notice is deemed to be given and received: (i) if sent by personal delivery or same day courier, on the date of delivery if it is a Business Day and the delivery was made prior to 4:00 p.m. (local time in place of receipt) and otherwise on the next Business Day, (ii) if sent by overnight courier, on the fifth Business Day following delivery of the Notice to the courier, or (iii) if sent by email, on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day. A Party may change its address for service from time to time by providing a Notice in accordance with the foregoing. Any subsequent Notice must be sent to the Party at its changed address.

11.2 Amendments

This Agreement may only be amended, supplemented or otherwise modified by written agreement signed by both Parties.

11.3 Further Assurances

Upon a Party’s reasonable request, the other Party will, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

11.4 Waiver

No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.

11.5 Relationship of the Parties

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

11.6 No Third-Party Beneficiaries

This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

11.7 Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties.

11.8 Governing Law

This Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the province of Alberta, and the federal laws of Canada applicable therein without regard to the conflict of laws provisions thereof.

11.9 Choice of Forum

Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, in any forum other than the courts of the Province of Alberta and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding.

11.10 Successors and Assigns

This Agreement becomes effective only when executed by the Parties. After that time, it will be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns. Client may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Contractor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.  Contractor may assign any or all of its rights or delegate any or all of its obligations under this Agreement without requiring the consent of Contractor.

11.11 Survival

Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement.

11.12 Counterparts

This Agreement may be executed in any number of counterparts (including counterparts by facsimile or other electronic means) and all such counterparts taken together will be deemed to constitute one and the same instrument.

[Signature page follows]

 

The Parties have executed this Agreement as of the Effective Date.

 

[CLIENT NAME]
Per:
Name:

Title:

 

Ignite Alliance Corp.
Per:
Name:

Title:

 

 

[Signature page – Master Services Agreement]

 

SCHEDULE A

FORM OF STATEMENT OF WORK

[NTD: Form of SOW to be determined.]