Professional Services Terms and Conditions

Terms and Conditions. The following Terms and Conditions shall form an integral part of this Agreement.  

1. Definitions.  All capitalized terms not otherwise set out in this section shall have the meaning as set out in the section of this Agreement in which they are defined.  

1. “Affiliate” means, with respect to any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.
2. “Business Day” means any day except Saturdays, Sundays or statutory holidays during business hours.
3. “Change Order” has the meaning given to the term in section 4.
4. “Fees” means the fees payable by the Client to Company, including technology fees (as agreed to between the parties in a SOW) and all applicable duties, levies, taxes, or similar governmental assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction, if any.
5. “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), original works of authorship, algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable),  know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.  
6. “Intellectual Property Rights” means all: copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights,  trade secret rights,  patent and industrial property rights (whether registered or not), and  other proprietary rights, in Intellectual Property.
7. “Services” means the consulting services to be provided by Company to the Client as described in this Agreement, including the use of Company’s tools that analyze Client’s Salesforce org metadata, and any related SOW(s) and includes any resulting deliverables.
8. “Statement(s) of Work” or “SOW(s)” means any statements of work including any changes and modifications to them, that describe the Services to be provided by the Company to the Client.

1. SOWs and Provision of Services

1. Provision of Services.  Company shall provide the Services to the Client in accordance with the terms of this Agreement and the applicable SOWs.
2. SOWs.  If there is a conflict between the terms of a SOW and this Agreement, this Agreement shall prevail unless explicitly overridden with a cross-reference to this provision. For conflicts related to indemnification, Intellectual Property, limitation of liability, confidentiality, or data privacy, the terms of this Agreement will always prevail for the purpose of that conflict.
3. Location and Travel.  If Company’s employees or subcontractors are required to travel in order to perform the Services contemplated in a SOW, the Client shall reimburse Company for reasonable air travel and other business-related expenses incurred by Company in performing the Services but only to the extent that the Client has expressly approved such expenses in writing in advance. In the event Company’s employees or subcontractors are required to travel for the provision of the Services, the Client shall provide a meal allowance per day of travel.  Reimbursement of such reimbursable expenses shall be made by the Client upon submission by Company of a statement itemizing the expenses incurred and such other satisfactory evidence requested by the Client acting reasonably.  
4. Affiliates and Subcontractors. Company may use its Affiliates and subcontractors to perform the Services. Company shall be liable for the actions and omissions of its Affiliates and subcontractors to the same extent as if such actions and omissions were performed directly by Company, and for purposes of this Agreement, all work performed by Company's Affiliates and/or subcontractors shall be deemed work performed by Company. Company shall be Client's sole point of contact regarding the Services, including with respect to payment of the Fees.

1. Client’s Obligations for the Services. Successful completion of the Services depends on the full commitment and participation of the Client.  Company’s successful performance of the Services is dependent on the following responsibilities being managed and fulfilled by the Client, at no charge to Company.  The Client will: (a) ensure that sufficient and appropriate Salesforce or Traction Rec licenses are purchased if the SOW requires that Company work on the Salesforce platform or Traction Rec Applications; (b) take reasonable steps to ensure that all Client personnel participating in the Services are knowledgeable about the Services; (c) appoint a representative to supervise and coordinate the Client’s performance of its obligations under this Agreement and on each SOW.  The representative will interact with the Company in a professional and prompt manner. Client’s representative will have the necessary expertise and authority to act on behalf of the Client; (d) not require Company to work with its competitors that Company believes, acting reasonably, may be exposed to Company’s Confidential Information; (e) provide Company with prompt access to the Client’s systems, data, and documentation, as may reasonably be required by Company to facilitate the provision of the Services; (f) be responsible for the content of any database, the selection and implementation of controls on access and use, backup and recovery of its data, and security of stored data, including implementing any procedures necessary to safeguard the integrity and security of software and data accessed by Company in the provision of the Services; (g)provide Company with prompt access to necessary personnel, as may reasonably be required by Company; (h) use the Services only for their intended purpose; (i) comply with all applicable law; (j) provide appropriate direction, as requested by Company; and (k) perform appropriate and timely testing as agreed in a SOW or Change Order.
   
2. Company’s Obligations for the Services.  In addition to the warranties provided by Company at Section 8 (Warranties) of this Agreement, Company will provide the Services to the Client:

1. in accordance with industry standards;
2. in accordance with any timelines described in a SOW or Change Order, subject to Client meeting its obligations in that SOW or Change Order and herein;
3. so as to materially meet the specifications in a SOW or Change Order or otherwise as mutually agreed by the parties in writing, subject to the Client meeting its obligations in such a SOW or Change Order or as mutually agreed by the parties in writing;
4. with personnel knowledgeable about the Services who are under appropriate supervision; and
5. in accordance with applicable law.  
6. Company will determine the methods, details, and means of performing the Services, except as may be specifically identified in a particular SOW.  

1. Client Delays for the Services.  In the event of any delays in the provision of the Services or any part thereof that are attributable to the Client (“Client Delays”), Company may:  

1. invoice the Client the rates contained in the SOW, or if no rates are contained in the SOW, then Company’s list rates, for the hours Company uses to accommodate the Client Delay and the hours Company is not able to reallocate as a result of the Client Delays;
2. change its resource team allocated to the Services;
3. stop providing the Services as contemplated in the SOW; and
4. require further changes to the timeline for the provision of the Services, and the Client agrees that such further delays shall not constitute a default by the Company.  

1. Change Orders.  In the event either Company or the Client requires a material change to the SOW, the party requesting such change shall communicate such change to the other party, in writing.  If the parties agree to such changes, such acceptance will be evidenced in writing by way of a mutually executed change order (“Change Order”) or by secured electronic means from Client to Company, including but not limited to email or other secured messaging platform, which will be incorporated into this Agreement.  Neither party will be required to agree to any changes that materially change the Services or have a material impact on the business of the party.
2. Warranties.

1. Company hereby represents and warrants that: (i) it is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite power and authority to execute and deliver the Agreement and to perform its obligations under the Agreement; (iii) it will provide all services in a professional and workmanlike manner consistent with then-current applicable industry standards and practices, (iv) it owns all rights, title, and interest in and to, and sole and exclusive ownership of the  documentation and any material claimed by it to be its Intellectual Property which do not and will not infringe any third party’s rights, and (v) it will comply with all laws, regulations and ordinances applicable to its performance under this Agreement.
2. The warranties provided in this Agreement comprise all the warranties made with respect to the Services and the App. Any other representations, warranties, conditions, or other terms, whether express or implied and including, without limitation, implied warranties, conditions and other terms of merchantability, satisfactory quality or fitness for a particular purpose, are expressly excluded to the extent permitted by law.
3. Company’s business is implementing and customizing third party cloud software (including Salesforce’s software), developed by third parties, including third party AppExchange software providers, other than the App (“Third Party Developers”).  The Client acknowledges and agrees that Company is not such Third Party Developers and is not an Affiliate of such Third Party Developers and that Company makes no representations or warranties regarding Third Party Developers or their software, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose).  No representation or warranty by such Third Party Developers is binding on Company nor shall breach of such warranty relieve the Client of its obligations to Company. Third Party Developers may require the Client to enter into license agreements or pay license fees for the use of their software which, unless expressly set out herein or in a SOW, are not included in the Fees.  There may be circumstances whereby Third Party Developers make changes to the software upon which the Services are based (“Third Party Software Changes”).  Except as expressly set out in a SOW, Company will not be responsible for any fixes, patches, or replacement code that may be required as a result of such Third Party Software Changes including, but not limited to, pre-installed AppExchange Packages or pre-existing configurations and customizations within the Salesforce instance).

1. Indemnities.

1. Each party (the “Indemnitor”) agrees to defend, hold harmless and indemnify the other party (“Indemnitee”), its officers, directors, employees, agents, and subcontractors from and against any and all expenses, loss or liability incurred by the Indemnitee, its officers, directors, employees, agents, or subcontractors as a result of any third-party claims arising from gross negligence, willful misconduct or fraud of the Indemnitor.
2. Company agrees to defend, hold harmless and indemnify the Client, its officers, directors, employees, agents, and subcontractors from and against any and all expenses, loss or liability incurred by them arising as a result of: (a) any fines, penalties and levies assessed against Client by a regulatory authority or governmental entity having authority over Client as a result of Company’s failure to comply with applicable law in the performance of Services under the Agreement; and (b) any claim that Company Intellectual Property infringes upon or violates any intellectual property right of any third party. The foregoing obligations do not apply with respect to portions or components of the App or Services : (i) not created by Company; (ii) resulting in whole or in part in accordance from the Client’s specifications or data/content; (iii) that are modified or combined with other products, processes or materials where the alleged infringement relates to such combination; (iv) where the Client continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; and (v) where the Client’s use is not strictly in accordance with the Agreement and all related documentation made available by Company; or (vi) any breach of the Agreement by or fault of the Client.
3. Client Indemnification. The Client will indemnify Company from all damages, costs, settlements, attorneys’ fees and expenses related to any and all Claims: (a) of infringement or misappropriation excluded from Company’s foregoing indemnity obligations; (ii) arising out of the Client’s breach of the License granted under section 6 to the Client by Company; and (iii) a breach of applicable law.
4. The foregoing indemnification obligations of the Indemnitor are conditional upon the Indemnitee providing the Indemnitor with prompt written notice of any such claim or action. Any failure to provide such notice shall only relieve the Indemnitor of its indemnification obligations under this Agreement to the extent the Indemnitor can demonstrate actual, material prejudice to its ability to mount a defense as a result of such failure. The Indemnitor shall have sole control over the defence of any such claim or action and the Indemnitee shall cooperate in such defence. The Indemnitor shall obtain the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed, for any settlement or compromise of any claim that does not include the unconditional release of the Indemnitee from the indemnified liability hereunder or requires any specific performance, non-pecuniary remedy or for the payment of any amount by the Indemnitee.

1. Limitation of Liability

1. Neither party shall be liable to the other for any incidental, special, indirect, consequential or punitive damages of any character, including without limitation, damages for loss of business or goodwill, work stoppage, loss of information or data, or loss of revenue or profit, resulting from the provision of or reliance upon the Services, or other financial loss arising out of or in connection with the Services, regardless of the legal theory asserted, whether based on breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise.
2. Subject to applicable law, even if Company has been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose, Company’s aggregate and total liability under this Agreement for any and all claims arising out of this Agreement shall be limited to direct damages and shall not exceed amounts paid or due by the Client to Company under this Agreement in the year in which the claim arose. Except as set forth under applicable law, damages set forth in this Section are the parties’ sole exclusive monetary remedy and the sole and exclusive alternative remedy in the event any other remedy fails of its essential purpose. For the avoidance of doubt, the Parties may not limit their liability where prevented from doing so by applicable law.

1. Intellectual Property

1. All Intellectual Property made available or disclosed to the Client as part of the Services or App, under any SOW, Order Form or otherwise, or that is contained in past services provided by Company (collectively, “Company Intellectual Property”), and all Intellectual Property Rights in Company Intellectual Property are and shall remain the sole and exclusive property of Company. Except for the license to Company Intellectual Property pursuant to Section 5 (b) of this Agreement, the Client is granted no right, title, or interest in the Company Intellectual Property.  
2. Company grants to the Client a worldwide, perpetual, non-exclusive royalty free license (the “License”) to use the Company Intellectual Property integrated into the Client’s Salesforce platform or the App, solely for the Client’s internal purposes as part of the Services, App, or as part of any systems implemented by Company in the provision of the Services. The License does not apply to Company proprietary tools Company uses to perform the Services. Licenses for Company tools are not included in the SOW unless explicitly provided therein.  Other than the License, no ownership or license in any Company Intellectual Property is granted to the Client and, for greater certainty, but without limitation, the Client shall not be granted any rights to license, sub-license, sell, assign, transfer, or grant the Company Intellectual Property to any third parties without the prior express written consent of Company.
3. All Intellectual Property that was owned by or developed by or acquired by the Client or its Affiliates separate from this Agreement and without any use of the Services or the Company Intellectual Property (collectively, “Client Intellectual Property”) shall remain the exclusive property of the Client.  No rights of any kind shall be granted to Company in the Client Intellectual Property or any Confidential Information belonging to the Client, save and except that Company shall have a limited license to use the Client’s Intellectual Property to the extent necessary to provide the Services.    

1. Confidential Information

1. For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of Company providing the Services to the Client and that a reasonable person would consider to be confidential in the circumstances.  Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (c) is or becomes publicly available without the Receiving Party’s breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
2. Each of Company and the Client agree with the other that it shall:

1. take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information;  
2. not copy the Confidential Information except as may reasonably be required by Company in the provision of the Services or App;  not use the Confidential Information for its own purposes;  
3. safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons;  
4. use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and.  
5. except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, only disclose such Confidential Information to those directors, officers, employees or agents (“Receiving Party’s Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Party’s Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.

1. Upon termination of the Services and App, each party will immediately, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data

1. Term and Termination Either party may terminate this Agreement and any SOW or Order Form by providing written notice if the other party:

1. is in material breach of this Agreement (including, without limitation, failure to pay the Fees) and such breach has not been cured within thirty (30) days, or such time period as is mutually agreed upon by the parties, of the provision of notice of such breach to the breaching party; or
2. is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law or statute in force for the winding up or liquidation of corporations.

1. Terms of Payment

1. The Client will pay all Fees in accordance with the payment terms as set out in this Agreement and the applicable SOW.  Company will invoice the Client and the Client will pay the Fees in respect of such invoice within thirty days of the date of such invoice. The Client may, acting reasonably and in good faith, within 5 Business Days of receiving an invoice, dispute Fees or a portion thereof. The Client shall, provide written notice of the disputed Fees and sufficient information for the reasons thereof. If the disputed Fees are resolved within the time required to pay the invoice, then payment of the disputed Fees shall be included in payment of invoice, if the disputed Fees are resolved after the invoice payment date, then Client shall pay Company immediately after the disputed Fees are resolved. All amounts owing on account of past due invoices will incur interest at a rate of 1.5% per month (18% per annum equivalency), calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full. Client shall be responsible for legal fees incurred by Company for the collection of any unpaid invoices.
2. Fees for the Services shall be specified, or calculable in the applicable SOW.  Any changes to Fees or rates shall be specified in writing and must be agreed to by both parties, in advance, and, once approved, shall constitute a Change Order

1. General

1. Survival. The covenants contained in this Agreement under Sections 1 (Definitions), 7 (Warranties), 8 (Indemnities),  9 (Limitation of Liability), 10 (Intellectual Property), 11 (Confidential Information),  13 (Terms of Payment) and 14 (General)  shall survive the termination of the provision of the Services and the Client hereby acknowledges and agrees that the provisions of and all restrictions contained in this Agreement are reasonable and are necessary for the protection of the parties’ legitimate interests and proprietary rights and are an essential condition of this Agreement.
2. Name. Unless otherwise expressly prohibited, Company may use the name, logo, and identifying description of the Client in its list of customers and Company may generally make known the relationship between Company and the Client.  In the event the Client has brand guidelines and notifies Company of those brand guidelines, Company will only use the Client’s name and logo in accordance with the Client’s brand guidelines.  
3. Force Majeure. Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, acts of God, war, terrorism, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labour disputes, civil insurrection, civil or military authority, inability to obtain necessary labour, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement having regard to the applicable circumstances. An event of Force Majeure shall not relieve the Client of its payment obligations pursuant to this Agreement.
4. Dispute resolution.

1. Negotiation.  If there is a dispute or difference (“Dispute”) between the parties arising out of or in connection with this Agreement, then within five (5) business days of a party notifying the other party in writing of the Dispute, a senior representative from each party shall meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
2. Court proceedings and other relief. A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this Section, unless the party seeks injunctive or other interlocutory relief.
3. Continued Performance.  Both parties must continue performing their respective obligations and responsibilities under this Agreement while any Dispute is being resolved in accordance with this Section, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
4. Equitable Remedies. The Parties agree that monetary damages may be an inadequate remedy for any breach or threatened breach of any provision of this Agreement concerning Confidential Information, Intellectual Property Rights or other matters for which equitable rights may be granted. Accordingly, such provision may be enforced by injunction or other order of a court of competent jurisdiction.

1. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.
2. Currency.  Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. currency.
3. Relationship of the Parties.  The parties are independent contractors.  This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement. A party may make known the relationship between Company and the Client, provided that such party does not disclose any Confidential Information of the other party or proprietary details of the Services.  
4. Gender, Plural and Singular. In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of this Agreement may be made accordingly as the context requires.
5. Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing duly executed by each of the parties.
6. Proper Law of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, and the parties agree to attorn to the exclusive jurisdiction of British Columbia.
7. Invalidity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.
8. Notices. Any notice, payment or other communication required or permitted to be given or served pursuant to this Agreement shall be in writing and shall be delivered personally or forwarded by registered mail to the party concerned at the address specified in this Agreement, or to any other address as may from time to time be notified in writing by any of the parties. In the case of the Company, any such notices must also be carbon copied to legal@tractionrec.com. Any notice, payment or other communication shall be deemed to have been given on the day delivered, if delivered by hand, and within four Business Days following the date of posting, if mailed; provided that if there shall be at the time or within four Business Days of mailing a mail strike, slow-down or other labour dispute that might affect delivery by mail, then the notice, payment or other communication shall be effective only when actually delivered.
9. Entire Agreement. The provisions of the Agreement, SOWs and Order Forms constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of the Agreement and such Order Forms
10. No Strict Construction.  The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to this Agreement.
11. Assignment.  Except with written consent of the other party, neither party may assign any of their respective benefits, obligations or liabilities under or in respect of this Agreement, provided, however that: (a) Company may assign this Agreement to an Affiliate of Company, at its sole discretion; and (b) either party may assign this Agreement, in its entirety, in the event of sale of all or substantially all of its assets or a merger or acquisition.  No assignment shall relieve the assigning party of any of its obligations hereunder.
12. U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to the Agreement and shall not apply to any Order Form issued in connection herewith
13. Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.
14. Counterparts.  This Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument.  This Agreement may be executed and delivered electronically.  An executed copy of this Agreement delivered electronically will constitute valid execution and delivery.

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