This Agreement is made between Intactix Systems Inc. (“Intactix”) and Client and is made effective as of the Effective Date. Intactix and Client, in consideration of the mutual promises made in this Agreement, agree as follows.
1. AGREEMENT STRUCTURE
This Agreement is comprised of: (a) the Subscription Form, which sets out the specific terms; (b) this main body, which sets out the general terms and conditions; and (c) Schedule A, which sets out the Service Level Standards. In the event of a conflict between a general term or condition in the main body and a specific term or condition in Schedule A or in the Subscription Form, the general term or condition in the main body will prevail.
“Agreement” means this Master Services Agreement, being the main body together with its Schedule A and Subscription Form.
“Annual Notice of Fees” means the written notice provided by Intactix to Client at least sixty (60) days before the end of the Term or any Successive Term setting out the fees for the Services that will apply for the next Successive Term.
“Claims Management Consultation” means that portion of the Services pertaining to the management of worker’s compensation claims submitted by Client to the Worker’s Compensation Board of Alberta to which Variable Fees apply.
“Client” means the client identified in the Subscription Form.
“Client’s Data” means the electronic data and information submitted by Client (or its duly authorized agent or representative) for management through the Services.
“Documentation” means the Intactix documentation relating to the Services, including brochures and manuals and training materials, all as amended from time to time and available at www.intactix.ca or in print.
“Effective Date” means the date first written above.
“Force Majeure” means an event which is beyond a party’s reasonable control which cannot be overcome or remedied with reasonable effort and diligence, including but not limited to acts of God, governmental actions, war, riot, fire, explosion, sabotage, terrorism, flood, accident, pandemic, labour disputes, or failure of the internet.
“Initial Term” means the initial term of the Agreement as identified in the Subscription Form.
“Intactix Platform” means the infrastructure, data storage facilities and systems which support the Services.
“Performance Standard” means the provision of Services in accordance with the standard of a prudent and diligent contractor, which at all times: (a) proceeds in a manner consistent with a professionally managed and experienced organization engaged in a similar undertaking in the same industry; and (b) safeguards those elements of the Client’s business and property which are affected by or involved in the Services with the same reasonable care and attention as it would if those elements were part of Intactix’s own business.
“Services” means the services provided by Intactix under this Agreement, as set out in the Subscription Form, and as described in the Documentation, and includes access to the Intactix Platform.
“Service Level Standards or SLS” means agreement by Intactix to meet the service levels specified in Schedule A.
“Service Interruption Credits” means the remedy set out in Schedule A which is associated with failure to meet a specific SLA.
“Services Commencement Date” means the Services commencement date identified on the Subscription Form.
“Subscription Fee” means the subscription fee set out in the Subscription Form.
“Subscription Form” means the subscription form which is the first page of this Agreement setting out the specific terms of this Agreement and which is executed prior to the commencement of the Initial Term and again prior to each Successive Term.
“Successive Term” has the meaning ascribed to it in Section 4.2.
“Variable Fees” means the variable fees applicable to Claims Management Consultation, as set out in the Subscription Form and which are billed on a time and materials basis.
“Term” means either the Initial Term or any Successive Term.
3. THE SERVICES
Intactix will provide Client with the Services for the Initial Term or any Successive Term, as the case may be.
4.1 INITIAL TERM. The term of this Agreement will commence on the Effective Date and will remain in effect for the Initial Term.
4.2 SUCCESSIVE TERM. At the conclusion of the Initial Term, the term of this Agreement will automatically renew for successive one (1) year terms (each, a “Successive Term”), subject to Section 4.3.
4.3 ELECTION TO NOT RENEW. Either Intactix or Client may elect not to renew the Initial Term or any Successive Term by providing sixty (60) days’ written notice in advance of the end of the Initial Term or any Successive Term, as the case may be.
5. PERFORMANCE STANDARD AND WARRANTY
5.1 PERFORMANCE STANDARD. Intactix will provide the Services in accordance with the Performance Standard.
5.2 WARRANTY AND WARRANTY DISCLAIMER. Intactix warrants that it (a) will perform all Services in accordance with applicable law and to the Performance Standard; and (b) has sufficient right to the proprietary rights related to the Services to enter into and perform under this Agreement. THE SERVICES AND ALL RELATED TECHNOLOGY, SOFTWARE AND FUNCTIONS WILL BE PROVIDED BY INTACTIX ON AN “AS IS” BASIS. EXCEPT AS SET FORTH IN THIS SECTION 5, INTACTIX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION 5, INTACTIX EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INTACTIX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. INTACTIX WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, UNLESS THE SERVICE INTERRUPTIONS ARE CAUSED BY INTACTIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
5.3 REMEDIES. The Schedule A Service Interruption Credits constitute Client’s exclusive remedy for any interruption to the Services, except that Intactix will have no obligation to provide credits to Client under Schedule A while Client is in default or not current in its payment obligations under this Agreement. The Service Interruption Credits provided for in Schedule A will be issued to Client’s account and will be used to offset future fees, it being understood that no cash credits will be provided. Credits will expire on the termination or expiry of this Agreement.
5.4 LIMITATION OF LIABILITY. Neither party will be liable to the other for any indirect or consequential damages, and in no event will the liability of Intactix under any circumstance exceed the product of: (a) 3; and (b) the hightest monthly fee paid by Client in the preceding six (6) months.
6. FEES AND PAYMENT
6.1 FEES. Client will pay to Intactix the Subscription Fee, together with any Variable Fees associated with the Services. In addition, Client will pay to Intactix all taxes associated with the Subscription Fee or the Variable Fees.
6.2 PAYMENT. Client will pay the Subscription Fee and any Variable Fees in accordance with the payment terms set out in the Subscription Form. Variable Fees will be invoiced monthly and are due no later than thirty (30) days from the invoice date. Intactix will be entitled to claim interest on any overdue amount at a rate of 2% per month.
6.3 PAYMENT DISPUTES. If Client disputes any invoice, Client will pay the undisputed portion and promptly notify Intactix in writing of the nature of the dispute as to the remainder, and the parties will use their best efforts to resolve the dispute expeditiously. In the event the dispute is not resolved within fifteen (15) days after receipt by Intactix of the notice of such dispute, Intactix may, suspend performance of the Services, without limitation or waiver of any other right or remedy available under this Agreement or at law. All amounts payable by Client under this Agreement will be made without setoff or counterclaim and without deduction or withholding.
6.4 ANNUAL NOTICE OF FEES. Intactix will deliver to Client the Annual Notice of Fees prior to each Successive Term in accordance with the terms of this Agreement.
7. USAGE LIMITS
Client is limited to the number of user subscriptions specified in the Subscription Form, with the sole exception of “Visitors”, for this purpose meaning those employees of the Client who passively monitor the Services in order to supervise its use and verify its function and results. Additional users may be added by Client at any time during the Term and the fees payable for such additional users will be the same as those then currently in effect as to both price and term.
8. OWNERSHIP AND RIGHTS GRANTED
8.1 INTACTIX OWNERSHIP. The Services, including all intellectual property rights in the Services and in the Intactix Platform, will remain the property of Intactix during the Term and thereafter.
8.2 MODIFICATIONS. If Client communicates to Intactix suggestions for modifications to the Services or to the Intactix Platform (“Modifications”), Intactix will own the Modifications entirely. Client will make no claim to the Modifications.
8.3 RIGHT GRANTED TO CLIENT. Intactix hereby grants Client a limited, non-exclusive, non-transferable right and license to access and use the Services and the Intactix Platform during the Term.
8.4 CLIENT OWNERSHIP. Client retains ownership of and intellectual property rights to Client’s Data.
8.5 RIGHT GRANTED TO INTACTIX. Client hereby grants to Intactix the right to host, copy, transmit and display the Client’s Data through the Services and to utilize the Client’s Data for research, development and presentation purposes, provided that Intactix will ensure that personal information is protected and concealed during such use.
8.6 RESTRICTIONS. Client will not nor will Client allow any third party to (a) copy, modify or adapt the Services or the Intactix Platform; (b) reverse engineer or in any manner attempt to identify the source code of the Services or the Intactix Platform; (c) assign or otherwise transfer rights to the Services or the Intactix Platform; (d) use any device or software which interferes with the operation of the Services or the Intactix Platform; or (h) build a product which is competitive to the Services or to the Intactix Platform.
9.1 IMMEDIATE TERMINATION BY EITHER PARTY. Either Party may terminate this Agreement immediately if the other Party: (a) makes an assignment or arrangement for the benefit of, or protection from, any of its creditors; (b) files a petition, obtains any ruling or otherwise commences, authorizes or acquiesces in the commencement of a proceeding under any applicable laws, or permits any material portion of its assets to be made subject to any seizure or realization; or (c) becomes bankrupt or insolvent, however evidenced.
9.2 EARLY TERMINATION BY CLIENT. Client may, on written notice, immediately terminate this Agreement if Intactix is in material breach of its material obligations under this Agreement (“Material Breach”) and has received a written notice of the Material Breach from Client (“Notice of Material Breach”) and: (a) Intactix has not commenced and diligently pursued a remedy for the Material Breach within two (2) business days after receipt of the Notice of Material Breach; or Intactix has not, to Client’s satisfaction acting reasonably, remedied the Material Breach within thirty (30) days of receipt of the Notice of Material Breach and such Material Breach and Intactix’s failure is having a material adverse effect on Client’s business.
9.3 EARLY TERMINATION BY INTACTIX. Intactix may: (a) on written notice immediately terminate this Agreement if Client is in breach of its obligations under Sections 7 or 8.6 above; (b) on thirty (30) days’ written notice either suspend the Services or terminate this Agreement if Client is in default of its payment obligations and Client fails to cure such default within the 30 day notice period; or (c) on thirty (30) days’ written notice either suspend the Services, or terminate this Agreement , if Client is in breach of any other material provision of this Agreement and Client fails to cure such breach within the thirty (30) day notice period.
9.4 EFFECT OF EARLY TERMINATION. Upon termination of this Agreement for any reason: (a) Client will remain liable for all obligations Client has incurred through the date of termination with respect to the Services, including the obligation to pay the Subscription Fees and Variable Fees; and (b) all of Client’s rights under this Agreement will immediately terminate, except as specifically provided herein.
9.5 SURVIVAL OF PROVISIONS. Sections 6, 8, 10, 11 and 12 of this Agreement will survive expiry or termination.
10. DATA SECURITY
10.1 SAFEGUARDS. Intactix will ensure that its security practices meet the Performance Standard relating to the collection, storage, back-up, disclosure, use of and access to all Client’s Data. Without limiting the generality of the foregoing, Intactix will use commercially reasonable efforts to (a) utilize and maintain adequate security measures to ensure the security and confidentiality of Client’s Data and utilize only those third party service providers that can ensure the same, (b) promptly notify Client of any breach of security, (d) take commercially reasonable measures to correct any breaches of Intactix’s confidential treatment and protection of Client’s Data, and (e) comply with all laws applicable to the performance of the duties set out in this Section 10.
10.2 NO LIABILITY. Notwithstanding the foregoing: (a) Intactix does not guarantee absolute data security nor does Intactix represent or warrant that all attempts to penetrate the firewall can or will be blocked in spite of commercially reasonable and industry-standard data security measures applied by Intactix or third party service providers; and (b) Client acknowledges that Intactix has no liability to Client for any unauthorized access or use, corruption, deletion, destruction or loss of any of Client’s Data except to the extent of Intactix’s gross negligence or willful misconduct.
10.3 DATA PRESERVATION. Intactix will maintain Client Data: (a) for a period of thirty (30) days following the termination or expiration of this Agreement; or (b) for the notice periods set out in Section 9 (each a “Notice Period”). If Client requires storage and/or access to the Client Data during the Notice Period, Client will pay Intactix for data storage and data retrieval according to the Intactix then current data storage and time and materials rates. Intactix will have no obligation to continue storage of the Client Data after a Notice Period and may thereafter destroy the Client Data, unless otherwise required by law.
11.1 CONFIDENTIAL INFORMATION. “Confidential Information” means all information designated as confidential or which could reasonably be assumed to be commercially sensitive, including without limitation any and all personal information, service information, technical or financial information, business strategies, practices, procedures, customer names, fees associated with the Services, and technical information and source code that may be disclosed by one party (“Discloser”) to the other party (“Recipient”), whether such disclosure is in written, oral, electronic, website-based, or other form or contained in any form of media.
11.2 DISCLOSURE AND USE. Recipient and its representatives will maintain the confidential nature of the Confidential Information it receives and will restrict the possession, knowledge and use of Confidential Information to its employees and contractors who have a need to know Confidential Information in connection with Intactix’s provision of the Services. Recipient will, at a minimum, use the same degree of care that it uses with respect to its own Confidential Information to prevent its use or disclosure, but in no event will Recipient use less than reasonable care. Recipient may use the Confidential Information it receives only for the furtherance of the purposes of this Agreement. Neither party will acquire any right in the Confidential Information of the other or sell, assign, lease or otherwise commercially exploit the Confidential Information.
11.3 EXCEPTIONS. Confidential Information does not include: (a) information that at the time of disclosure to Recipient was in the public domain (other than as a result of any breach of this Agreement); (b) information that was lawfully known by Recipient prior to receipt from Discloser; (c) information that, after disclosure to Recipient, becomes known to the general public through no breach of this agreement by Recipient; (d) information developed independently by Recipient without use of or reference to Confidential Information; or (e) information that is disclosed to Recipient by a third party who did not acquire or disclose such information by a wrongful act.
11.4 EFFECT OF TERMINATION OR EXPIRATION. Upon an early termination of this Agreement or at the end of the Term, Recipient will: (a) cease its use of the Discloser’s Confidential Information; and (b) at the written request of the Discloser, destroy or return all Confidential Information to the Discloser.
11.5 AUTOMATIC BACK-UPS AND CORPORATE GOVERNANCE. Notwithstanding anything to the contrary in this Section 11, Recipient may retain: (a) automatically backed-up copies of the Confidential Information in its archival or back-up computer systems, subject to this Agreement until such copies are deleted or destroyed; and/or (b) for corporate governance purposes and for retention by the Recipient’s legal counsel.
Each party will indemnify, defend and hold the other party, its affiliates and each of their respective employees, officers, directors and representatives, harmless from and against any and all claims and liabilities as determined by a final order of a court of competent jurisdiction (a) arising out of or in connection with any third party claim to the extent the claim is based on such party’s gross negligence or willful misconduct; and (b) arising out of or in connection with any third party claim related to the indemnifying party’s actual or alleged infringement or misappropriation of a third party’s other proprietary rights.
13. FORCE MAJEURE
13.1 Relief for Force Majeure. Neither party will be responsible for delays or failures to perform its obligations under this Agreement due to a Force Majeure, provided that the party claiming the Force Majeure promptly notifies the other party in writing of the event and probable consequences, and resumes performance as soon as reasonably possible. In no event will a lack of funds constitute a Force Majeure.
13.2 Termination. If either party is prevented from performing by the Force Majeure for a consecutive period of more that forty-five (45) days, the other party may thereafter terminate this Agreement upon written notice.
Any notice required to be given pursuant to this Agreement will be in writing and hand delivered or sent by registered mail to the parties’ representatives at the addresses provided on the Subscription Form.
This Agreement constitutes the entire agreement between Client and Intactix regarding the subject matter hereof and supersedes any and all prior agreements or communications. Client may not assign or otherwise transfer any of Client’s rights hereunder without Intactix’s prior written consent. This Agreement will be binding upon and enure to the benefit of the respective successors and assigns of the parties hereto. The relationship between Intactix and Client is not one of a legal partnership, but is one of independent contractors. The parties may execute this Agreement in any number of counterparts. Each counterpart will be deemed an original and all counterparts will constitute one agreement. Facsimile or digitally scanned signatures will be considered binding for all purposes. This Agreement will be governed in all respects by the laws of Alberta.