Master Services Agreement

This online MASTER SERVICES AGREEMENT (MSA, “Agreement”) is made and entered into by and between Agathos Services (a division of Omeganet Inc., “Contractor”), a corporation having its principal place of business located at 2305 - 52nd Avenue SE, Unit 10, Calgary, Alberta, T2C4X7, Canada and its' Clients, who have signed a SOW without completing a Client specific MSA.

1. Purpose. 

Agathos Services provides a variety of technology-related consulting services to their Clients. This Agreement describes the terms and conditions under which Agathos Services ("Contractor") may engage to perform consulting services for you the Client and customer.

2. Definitions.  

The following definitions apply to this Agreement and any related Statement of Work.

a. "Customer" means any Client for whom subcontracted Services or Deliverables are to be provided under this Agreement.

b. "Deliverable"means any Code, Documentation or other materials prepared by Contractor under a SOW for delivery to the Customer.

c. "Documentation"means user manuals and other written information prepared under a SOW; including any maintenance modifications or enhancements to prior Documentation that are prepared during the time in which Contractor is contracted to provide Services related to the Deliverable.

d. "Effective Date" means the later of the dates on which this Agreement is executed by an authorized representative of Agathos Services or [Client].

e. "Contractor"means the party that engages the other party under contract to perform Services and/or provide Deliverables under this Agreement.

f. "Services"means the services to be provided by Contractor to or for the benefit of Customers, as described in a SOW.

g. “SOW”means a Statement of Work for Services and the related Deliverables that is executed by the parties.

h. "Subcontractor"means individuals or agencies working with the Contractor providing the Services and/or Deliverables for the benefit of the Customer under this Agreement and the applicable SOW.

3. Statements of Work.

a. Relationship.  The parties shall enter into one or more SOW of which the Contractor will be responsible to the Customer for the SOW performance and obligations. The parties acknowledge that all of the details of their operating relationship will evolve over time. Nothing provided herein shall be construed as requiring the Customer to engage the Contractor to perform any Services or to accept any Statement of Work. The Contractor shall be free to either provide the Services to the Customer itself or leverage partnerships to select a third party to provide the Services.

b. SOW Information. Each SOW will include the following information and any additional provisions the parties agree to: (i) a description of the Services and Deliverables; (ii) the parties' responsibilities; (iii) the service fees, currency, method of calculation, and matters relating to currency exchange rates.

c. Effect of SOW. A SOW will become effective upon execution by authorized representatives of both parties. Each SOW will be made a part of this Agreement, and the Agreement terms and conditions will apply to each SOW. If a SOW contains provisions inconsistent with this Agreement, the SOW provisions shall prevail with respect to that SOW, except for sections 7, 8, 9,10, 11 12 and 13 of this Agreement, which shall prevail and be binding on the parties regardless any inconsistent provision in a SOW unless the SOW is signed by a vice president (or equivalent) of each party, specifically refers to the affected section by number, and specifically states the parties’ intention to vary it for purposes of that SOW. This Agreement by itself does not obligate a party to provide any services or enter into any SOW.

d. Project Managers. Each party shall appoint a primary contact or project manager ("Project Manager") for each SOW. The Project Manager shall be responsible for managing the parties' rights and obligations under this Agreement and the applicable SOW. Each party may change the designation of such party's Project Manager upon written notice to the other party.

4. Responsibilities

a. Services.  Upon the parties' execution of a SOW, the Contractor will provide the Services and Deliverables described therein.

b. Acceptance.  Except as otherwise provided in a SOW, Services and Deliverables will be deemed satisfactory to and accepted by the Customer unless the Customer gives Contractor prompt written notice of aspects in which the Services or Deliverables do not meet the SOW requirements. Upon receipt of such written notice, Contractor will use commercially reasonable efforts to make such changes as will be required to correct any deficiencies.

c. Change Order.  Any changes or additions to the obligations of either party or to any other material aspect of a SOW will require a written change order in accordance with the procedures set out in Appendix A to this Agreement which is here incorporated by reference.

d. Site Regulations.  Contractor employees performing Services on Customer premises shall observe reasonable safety and security protocols of which Contractor is notified in writing and are included in a SOW.

5. Compensation and Payment Terms

a. Purchase Order.  Prior to the start date of a SOW, Customer shall issue a Purchase Order ("PO") equal to the amount specified in the SOW. If Customer does not issue POs, Customer shall submit with the SOW the following: (i) Customer's internal tracking number for the SOW; (ii) amount of the relevant SOW; (iii) billing address; (iv) purchasing contact; (v) signature of authorized agent of Customer.

b. Invoicing.  When invoicing Customer, Contractor shall include the following; (i) the name of the applicable Customer to whom the Services or Deliverables were provided, (ii) the SOW name and number for the Services or Deliverables, and (iii) the fees due.

c. Payment. Fees and expenses as agreed to in a SOW shall be calculated by Contractor on a monthly basis and invoiced to Customer within fifteen (15) days after the end of each period. Payment shall be due thirty (30) days from date of invoice. However, for a deliverables-based SOW, if Customer has not accepted any portion of the Services or Deliverables, Contractor shall not invoice for the unaccepted portion until it meets the requirements set forth in the applicable SOW. For Time and Materials SOW’s, invoices will be made per the terms set forth in this agreement.

d. Taxes. Charges on SOW for Services and Deliverables are exclusive of applicable taxes.

6. Intellectual Property

a. Ownership.  THIS AGREEMENT IS NOT A “WORK-FOR- HIRE” AGREEMENT. Except as expressly provided otherwise in this Section 5 or any SOW, each party and/or its licensors retain on an exclusive basis all right, title and interest in and to any intellectual property developed, delivered and/or used by such party in the performance of this Agreement. Neither this Agreement nor any SOW changes ownership of any pre-existing materials unless otherwise amended by a SOW.

b. License.  Contractor grants the following worldwide, perpetual, fully paid-up, royalty-free, and irrevocable (upon payment of all applicable fees) rights in the Deliverables provided by Contractor: the right to use, reproduce, distribute, display, and perform the Deliverables solely for the Customer identified in the SOW under which the Deliverables are provided, and to sublicense the foregoing rights for the Customer's internal use, so long as the Customer does not have an affiliate that competes with Contractor and commits not to transfer any such rights to an affiliate or other third party that competes with Contractor.

c. Restrictions.  Except as otherwise provided in this Section 5, Customer may not rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify or time share any Deliverable or any related Documentation. All proprietary rights notices must be faithfully reproduced and included on all copies, modifications and adaptations.

7. Warranty

a. Warranty. Contractor warrants that the Services and Deliverables it provides will be performed or created in a good and workmanlike manner and in accordance with the description set forth in the applicable SOW. Unless otherwise stated in the applicable SOW, this warranty shall be effective for a period of thirty (30) days following Customer acceptance of the Services or Deliverables in accordance with Section 3 (the "Warranty Period"). Contractor must notify Contractor in writing during the Warranty Period if Customer believes the Services or Deliverables do not meet the above standards. If after such notice the Services or Deliverables are determined not to meet the above standards, Contractor shall use reasonable commercial efforts to correct any defects in the Services or Deliverables at no additional charge. If Contractor is unable to correct any such defects after a reasonable period of time, Customer may terminate the relevant SOW in accordance with Section 10 in exchange for a refund of the amount paid by Customer to Contractor for the portion of the Services or Deliverables which Contractor is unable to correct.

b. Exclusions. This warranty excludes non-performance issues that result from third party hardware or firmware malfunction or defect, software not developed or recommended by Contractor, or by incorrect data or incorrect procedures used or provided by Customer or a third party, or defects which are outside the reasonable control of Contractor. This warranty shall immediately cease if Customer or any third party modifies any portion of a Deliverable and/or modifies Customer's system so that a Deliverable is no longer functional or appropriate.

c. Disclaimer. Except as expressly described in this warranty section, neither party makes any warranties of any kind. Each party disclaims and excludes all other express, implied, and statutory warranties, representations, and condition with respect to services and deliverables, including the implied warranties of merchantability, fitness for a particular purpose, title, or against patent infringement or the like.

8. Confidential Information

a. "Confidential Information". Means (i) the terms of this Agreement, (ii) Customer documents, files and data to which Contractor has access in performing the Services, and (iii) any other information that the Disclosing Party desires to protect against unrestricted disclosure by the Receiving Party and that (a) if disclosed in tangible or electronic form, is marked in writing as "confidential" or (b) if disclosed orally or visually, is designated at the time of disclosure as "confidential."

b. Obligations. The Receiving Party of Confidential Information agrees to exercise reasonable care to protect Confidential Information from unauthorized disclosure, which care shall not be less than the Receiving Party gives to protect its own confidential information. The Receiving Party may disclose Confidential Information only to its employees or agents who need to know such information and shall contractually require such employees or agents to comply with the obligations of confidentiality. Confidential Information may be disclosed to the extent that it is required to be disclosed pursuant to court or government agency order or rule, provided that before disclosing any otherwise Confidential Information, the Receiving Party provides reasonable notice of such order or rule giving the Disclosing Party opportunity to object to or limit such disclosure.

c. Exclusions.  Confidential Information will not include any information that (i) is already in possession of Receiving Party without obligation of confidence; or (ii) is developed by Receiving Party independent of providing any Services or Deliverables under this Agreement; or (iii) becomes publicly available without breach of this Agreement; or (iv) is rightfully received by the Receiving Party from a third party without obligation of confidence.

d. Residuals. Either party shall be free to use Residuals resulting from access to or work with Confidential Information. The term "Residuals" means general information in non-tangible form that is retained in memory by individuals with access to the Confidential Information. The Recipient shall have no obligation to limit or restrict the assignment of such persons. The foregoing does not grant either party a license under the other party's patents or copyrights; and, does not give the Recipient the right to disclose business plans or financial, statistical, or personnel data of the disclosing party, and does not allow the literal copying of a document.

9. Indemnification and Insurance

a. Infringement Indemnity.  Customer agrees to indemnify, defend and hold Contractor harmless from and against any loss, expense or claim alleging that the Services, Deliverables, or any portion thereof, infringes or misappropriates any patent, copyright, trademark, trade secret or other proprietary right of a third party.

If the Contractor’s Services or Deliverables, or Customer's use of Services or Deliverables, or any portion thereof, is enjoined, or in the opinion of Customer's counsel is likely to be enjoined, Contractor shall either: (i) substitute a fully functionally equivalent non-infringing version of the affected portion(s) of the Services or Deliverables; (ii) modify the infringing aspect of the Services or Deliverables so that it no longer infringes but remains a fully functionally equivalent item.

The rights provided in this section shall be the exclusive remedy of the Contractor for claims of the kind described herein.

b. General Indemnity.  Each party shall indemnify and save harmless the other party from and against any loss, expense or claim asserted by third parties for damage to third party tangible property, or for bodily injury, or both, related to this Agreement or a SOW, to the extent such damage or injury is attributable to the negligence or willful misconduct of the indemnitor.

The Infringement Indemnity and General Indemnity mentioned above are given provided, indemnitee gives the indemnitor prompt notice of any such claim and all necessary information and assistance so that indemnitor, at its option, may defend or settle such claim, and indemnitee does not take any adverse position in connection with such claim. In the event that any such damage or injury is caused by the joint or concurrent negligence of both parties, the loss, expense or claim shall be borne by each party in proportion to its negligence.

c. Insurance.  Each party will maintain, at its own expense, reasonable amounts of insurance (which shall at least meet any limits required by law or the applicable SOW) for public liability, property damage, employer's liability and workers compensation, as well as for risks comparable to these subjects that arise.

10. Limitation of Liability

a. Each party’s entire liability for any claim arising from this agreement or services or deliverables under a SOW, regardless of legal theory, shall not exceed the lesser of: (i) The total value of the SOW with respect to which the claim arose; or (ii) twelve times the average monthly fees paid by prime contractor to subcontractor under the applicable statement of work in question. However, the foregoing limitation of liability shall not apply to claims for: 

  A. personal injury, physical damage to real or tangible personal property caused by the negligence or willful misconduct of the party against whom liability is sought,

  B. intellectual property infringement, and/or

  C. a party's breach of its confidentiality obligations hereunder.

b. In no event shall either party be responsible to the other for incidental, indirect, punitive, exemplary, consequential damages or any damages resulting from loss of data, use or profits arising under or in any way connected with this agreement, even if advised of the possibility of such damages.  The limitations of liability set forth herein are a material element of the bargain of the parties and the remedy set forth herein shall apply even if it fails its essential purpose. 

11. Term and Termination

a. Term. The Term of a Statement of Work shall commence on the “Effective Date” set forth at the top of such Statement of Work and shall continue for a period as set forth in such Statement of Work. The Term of this Agreement shall begin on the date indicated above and shall continue in effect for the later of the twenty-four (24) months or the termination date of a SOW.

b. Termination for Cause.  Either party may terminate the Agreement or any SOW upon written notice for the substantial breach by the other party of any material term, if such breach is not cured within thirty (30) days following receipt of written notice of breach from the non-breaching party. Termination shall be in addition to any other remedies, which may be available to the non-breaching party.  The Contractor will provide 10 days written notice of termination to the Customer in order to facility an effective transition for the Customer.

c. Effect of Termination.  Unless otherwise agreed to in writing, upon Agreement termination, a SOW then in effect will immediately terminate, except to the extent necessary for Contractor to complete the transition of Services described below, and Contractor (under any then-pending SOW) shall reimburse Customer for any pre-paid fees for Services not performed by Contractor as of the termination date. Agreement termination will not discharge any payment obligation existing at the date of termination. Neither party will by reason of Agreement termination be liable for loss of business, or for any commitments in connection with the other party's business.

d. Transition of Services. Upon Agreement termination, for any then-pending SOW, or upon termination of a SOW, Customer will work in good faith with Contractor, to ensure an orderly transfer of the Services to Customer or to an alternative third-party service provider designated by Customer. Such transition may include Contractor facilitating the relocation of equipment provided by Customer, if applicable, from Contractor's facility to an alternative Customer location at Customer’s cost, and shall include the return of any Customer data and any Confidential Information applicable to the terminated SOW, or in general if this Agreement is terminated.

12. Non-Solicitation

a. Personnel. The Contractor enters into this Customer’s Agreement as independent contractors and neither has the authority to bind the other to any third party or otherwise to act in any way as the representative of the other. In particular, it is understood and agreed that neither party nor any employee or agent of such party is eligible to participate in or to exercise rights under any of the other party’s profit sharing, group insurance, major medical or any other compensation or benefit plans. Agathos Services shall be solely responsible for the payment of its employees' compensation, including employment taxes, workers' compensation and any similar taxes associated with employment of Agathos Services personnel. Each party will not, during the term of any SOW and for 6 months thereafter, directly or indirectly solicit for employment or employ any person who is an employee of the other party or its subcontractors and assignees who has been involved in activities related to the Services under the applicable SOW, unless and until the party soliciting employment pays to the employer, as liquidated damages and not as a penalty, an amount equal to the aggregate salary and wages (including bonuses) paid by the employer or any of its affiliates to such employee during the 6 months prior to the date such employee is employed by the soliciting party.

b. Records and Audit. The parties agree that, with respect to each SOW, Contractor shall maintain accurate and complete financial records of its activities and operations relating to the SOW in accordance with generally accepted accounting principles consistently applied. Contractor shall also maintain accurate and complete employment and other records relating to its performance of the SOW in order to verify performance and billings under a SOW. Any Customer-specific record or audit requirements shall be stated in the SOW; such records shall be kept and made available for a period of three (3) years or such other period as may be required by the Customer. Material provided under this provision shall be deemed “Confidential Information” under this Agreement except that it may be disclosed to the Customer to the extent required by the Contractor and need not be returned or destroyed upon termination of this Agreement.

13. General Provisions

a. Notice.  Unless otherwise agreed to by the parties, all notices shall be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, or (iv) signed electronic confirmation, addressed and sent to the receiving party’s address specified in the introductory paragraph to this Agreement, with the original of the notice being addressed to the Project Manager (with respect to any SOW(s)) and a copy addressed to the receiving party’s General Counsel or legal department.

b. Force Majeure. Neither Party will be liable to the other party because of any delay or failure of performance, if such delay or failure arises out of causes beyond the reasonable control and without the fault or negligence of such party.

c. No Partnership or Agency. Contractor is an independent contractor. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between the two parties or between a party and the other party's employee, agent, or representative. Neither Party has the authority to bind the other, to incur any liability or otherwise act on behalf of the other, or to control the means or methods by which the other carries out its obligations under this Agreement or any SOW. Each party shall be solely responsible for its payment of employee compensation (including required governmental withholding of income taxes, social security and other required withholding obligations within or outside Canada), workers compensation and similar payments, and all other employment benefits or mandated employer obligations related to employment compensation.

d. Third Party Rights. This Agreement shall not be construed to create any legal, equitable or beneficial interest in any third party or to vest in any such third party any interest with respect to the enforcement of this Agreement.

e. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Alberta and the laws of Canada applicable therein, excluding all conflict of laws provisions. The Parties hereby attorn to the jurisdiction of the courts in the City of Calgary, in the Province of Alberta.

f. Dispute Resolution. All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, shall first be mediated pursuant to the National Mediation Rules of the ADR Institute of Canada, Inc. Despite this Agreement to mediate, a Party may apply to a court of competent jurisdiction or other competent authority for interim measures of protection at any time. All disputes remaining unsettled after mediation shall be arbitrated and finally resolved pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of mediation and arbitration shall be the City of Calgary, Alberta and the language of the mediation and arbitration shall be English. The prevailing party in any arbitration or other action shall be entitled to reimbursement of its costs and reasonable attorneys’ fees on a substantial indemnity basis.

g. Entire Agreement. This Agreement, including any SOWs, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the parties relative thereto, whether written or oral.

h. Severability I Waiver. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect. No waiver of any Agreement right shall be effective unless in writing, signed by an authorized representative of the waiving party. No waiver of a right arising from any breach or failure to perform shall be deemed a waiver of any future right.

i. Binding Effect/Assignment.  This Agreement is binding upon the parties' respective representatives, successors, and permitted assigns, but neither party shall transfer, assign or subcontract this Agreement without the prior written consent of the other party.

j. Modifications/Amendments. This Agreement and/or any SOW may be modified only by a written addendum or change order (in the case of a SOW) signed by authorized signatories of both parties. The terms of any invoice, purchase order or similar document will not modify this Agreement and will otherwise be of no effect.

k. Co-Marketing. The parties may choose to cooperate to identify and implement means and methods to create visibility in the marketplace for this Agreement. This may include lists of referrals for customers or potential customers, and other promotional information such as press releases, success stories, brochures, reports, letters, white papers, and electronic media such as e-mail or websites. Any such co-marketing activities must be mutually approved by both parties prior to release. Nothing in this Agreement shall be construed to give either party any right to use any trademarks or service marks of the other party without prior approval.

l. Survival of Terms.  The provisions of this Agreement which by their nature extend beyond the termination of the Agreement, including without limitation all obligations of indemnity, will survive termination or expiration of the Agreement.