Software as a Service Agreement

This Software as a Service Agreement (the "SaaS Agreement"), between the Customer and Tritek Business Solutions Inc. (the “Tritek”), will govern the Customer’s purchase and use of Tritek Services. 

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

INTERPRETATION

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1.    Definitions: 

a.    “Agreement” means collectively the terms and conditions in this SaaS Agreement, the terms and conditions set out in the Sales Order(s) executed by the Customer and accepted by Tritek, and the terms and conditions set out in any other agreement or documents incorporated by reference. 

b.    “Authorized Users” means all employees of the Customer who are authorized by the Customer  to access and use the Tritek Services, Tritek Materials, and Software through the Customer's account under the Agreement, each of which shall be identified by the Customer's written notice to Tritek and approved by Tritek, which total number of Authorized Users will not exceed the number set forth in the applicable Sales Order(s), except as expressly agreed to in writing by the parties, and all acts and omissions of the Authorized Users are deemed to be the acts and omissions of the Customer.

c.    “Customer Data” means any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of the Customer or any Authorized User for processing by or through the Tritek Services, or (b) collected, downloaded, or otherwise received by Tritek or the Tritek Services pursuant to the Agreement or any Sales Order.

d.    “Personal Information” means information that: (i) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers), including where there is a serious possibility that the information may identify a person, either alone or in combination with other information; or (ii) can be used to authenticate an individual (including employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, or medical data, answers to security questions, and other personal identifiers). 

e.    “Term” means the Initial Subscription Term, and any Renewal Subscription Terms (all as defined in sections 2 and 3). 

f.    “Tritek Materials” means the Tritek Services, the specifications for the Tritek Services, Tritek Systems and Software, all available documentation or information relating to the Tritek Services (including user manuals, operating manuals, and instructions, in any form or media, that describe any component, feature, requirement, or other aspect of the Tritek Services, Tritek Systems, and Software, and any and all other information, data, documents, all devices, documents, data, know-how, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Tritek or any subcontractor of Tritek in connection with the Tritek Services, Tritek Materials, and Software. 

g.    “Tritek Services” means the software-as-a-service offering(s), subscription services, service maintenance, support services, and other products and/or services, described in one or more of the Sales Order(s).

h.    “Tritek Systems” means the technology infrastructure, including all computers, software, databases, electronic systems (including database management systems), and networks used by or for Tritek in connection with the Tritek Services. 

i.    “Sales Order(s)” means the product information dashboard or order form(s) implemented or updated from time to time by Tritek for Customers to use for the purpose of purchasing products and/or services from Tritek, which have been signed by the Customer and accepted by Tritek; 

j.    “Software” means the object code versions of the software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that Tritek provides remote access to and use of as part of the Tritek Services, along with any software delivered to the Customer by Tritek as part of any Tritek Services; 

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TERM 

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2.    Initial Subscription Term: The Agreement commences on the Service Effective Date for an initial term of one year, unless a longer period is agreed upon by the Customer and Tritek (“Initial Subscription Term”). The Service Effective Date will be the date the Customer signs the Customer’s first Sales Order with Tritek and said first Sales Order is accepted by Tritek (and will not change, notwithstanding any subsequence Sales Order(s) that may be signed by the Customer). 

 

3.    Renewal Subscription Terms: Following the expiry of the Initial Subscription Term, the Agreement will automatically renew for all Tritek Services then purchased by the Customer for a period of one (1) year on the same terms and conditions of the Agreement (the “Renewal Subscription Term(s)”), and this automatic yearly renewal will continue indefinitely until terminated by the Customer or Tritek in accordance with the terms of the Agreement. 

 

4.    Termination of Renewals: Each of the Customer and Tritek is entitled to terminate the automatic renewal of the Agreement by providing notice to the other party, at least forty-five (45) days in advance of the last day of the then current Term, of the party’s election to terminate the next renewal, and under such circumstances, the Agreement will terminate at the end of the then current Term. For clarity, regardless of the start date of any subsequent Sales Order following the first Sales Order, for the purposes of determining notice requirements to terminate automatic renewals, the parties shall use the Service Effective Date as the reference date to determine the last date of the then current Term (notwithstanding that some Tritek Services may have been purchased on a different date).

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ACCESS TO AND SCOPE OF TRITEK SERVICES 

 

5.    Access and Use: During the Term, Tritek grants to the Customer, exercisable by and through the Customer’s Authorized Users, a non-exclusive and non-transferable and revocable right to: (a) access and use the Tritek Services, including in operation with other software, hardware, systems, networks, and services, for the Customer's business purposes disclosed to Tritek, in accordance with the terms and conditions of the Agreement.

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6.    Service Preparation: During the Term, Tritek will take reasonable steps necessary to make the Tritek Services ready and available for the Customer's use in accordance with the Agreement, including dates set forth in such Sales Order, if any. 

 

7.    Changes to Software: The Customer acknowledges and agrees that: (a) the Tritek Services, Tritek Materials, and Software are provided on a shared service basis to the Customer and other customers from a common code base; (b) Tritek may from time to time, without the prior consent of the Customer, correct, change, add or delete the functions, features, performance or other characteristics of the Tritek Services, Tritek Materials, and Software to enhance or modify its features and functionality, and if such correction, change, addition or deletion is made, the specifications of the Tritek Services, Tritek Materials, and Software shall be amended accordingly; and (c) Tritek may require the Customer to update (either automatically or through other means) the Tritek Services, Tritek Materials or Software, in order to have continued access and use of the Tritek Services, Tritek Materials or Software. 

 

8.    Notice of Changes to Software: During the Term, Tritek will provide prior notice within a reasonable time before major changes or new versions of the Software to the Customer. Notwithstanding any term of the Agreement, Tritek does not guarantee that any change, addition, deletion, error correction or patch made by Tritek will be compatible with any application, other software or interface that is used by the Customer to connects to or interfaces with the Tritek Services, Tritek Materials, and Software. 

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9.    Scheduled Downtime: During the Term, Tritek will notify Customer at least 24 hours in advance of all scheduled outages of the Tritek Services in whole or in part.

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CUSTOMER COVENANTS REGARDING TRITEK SERVICES

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10.    Equipment to Access Tritek Services: The Customer, at the cost of the Customer, is solely responsible for obtaining and maintaining any and all tools and equipment (including computers, cellular phones and any other electronic devices or system) and ancillary services needed to connect to, access or otherwise use the Tritek Services, Tritek Materials or Software.  The Customer warrants that the Customer is authorized under applicable law to use the aforementioned tools and equipment (including computers, cellular phones and any other electronic devices or system) and ancillary services used to access the Tritek Services, Tritek Materials or Software. The Customer agrees not to use the Tritek Services, Tritek Materials or Software, in any manner that is prohibited by applicable law, or in violation of any contractual provision by which the Customer is bound. 

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11.    Customer Account: The Customer will be responsible for maintaining the security of the Customer’s account opened to access the Tritek Services, Tritek Materials or Software, including maintain security over the applicable user passwords. 

 

12.    Customer Use Restrictions: The Customer shall not: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make any Tritek Services, Tritek Materials or Software available to any person, except as expressly permitted by the Agreement; (b) use or authorize the use of the Tritek Services, Tritek Materials or Software in any manner or for any purpose that is unlawful under applicable law; (c) modify, pledge, sub-license, lease, rent, loan, assign or create derivative works based on the Tritek Services, Tritek Materials or Software, including its user interfaces; (d) copy, adapt, translate, distribute, publish, communicate to the public, or create any adaptation, translation or derivative based on the Tritek Services, Tritek Materials or Software; (e) reverse engineer, de-compile, disassemble or extract any element of and/or otherwise access, examine, share or discover any source code, object code, algorithms, methods or techniques embodied in the Tritek Services, Tritek Materials or Software; and (f) remove, alter or obscure any disclaimer or notice, or any restricted right, legend, trademark, copyright or other ownership right or legend appearing in the Tritek Services, Tritek Materials or Software, on a screen or any printout; and (f) use, or encourage others to use, any robot, spider, other automatic or non-automatic manual device or process intended to interfere or attempt to interfere with the proper working of any Tritek Services, Tritek Materials or Software.  This obligation shall survive termination of the Agreement, regardless of the manner in which it is terminated.

 

13.    Tritek Owernship: At all times, as between the Customer and Tritek, Tritek is and will remain the sole and exclusive owner of all right, title, and interest in and to the Tritek Services, Tritek Materials, and the Software, including all  registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world relating thereto.

 

 

CUSTOMER DATA 

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14.    Provision of Customer Data: The Customer will provide to Tritek all Customer Data that are reasonably required for Tritek to provide the Tritek Services in accordance with the terms of the Agreement. The Customer acknowledges that the Customer and the Authorized Users are solely responsible for entering Customer Data into the Tritek Services and Software and maintaining the Customer Data. The Customer will not provide to Tritek any Customer Data unless it is accurate, complete, and not false, misleading or deceptive, and owned by the Customer. 

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15.    Customer Data Warranties: The Customer warrants that the Customer Data provided to Tritek: (a) does not breach any applicable law; (b) does not infringe upon any registered and unregistered intellectual property rights of any other person; (c) to the extent that the Customer Data contains Personal Information, the Customer has obtained the necessary consents in order to transfer or permit access to the Customer Data in accordance with applicable law, including without limitation the Personal Information Protection Act, S.B.C. 2003, c. 63, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, and any other applicable legislation. As between the Customer and Tritek, the Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data. 

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16.    Use of Customer Data: The Customer grants to Tritek a royalty-free, fully paid-up, non-exclusive, transferable licence to process and use the Customer Data: (a) as necessary to provide the Tritek Services to the Customer in accordance with the terms and conditions of the Agreement; (b) as necessary to comply with Tritek’s obligations under applicable law; and (c) for any purpose or use authorized under applicable law.  

 

 

FEES AND INVOICES 

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17.    Sales Orders: Sales Orders will be effective only when signed by Customer and accepted by Tritek. Any modifications or changes to the Tritek Services under any executed Sales Order will be effective only if and when recorded in a mutually agreed written change order ("Change Order") signed by both parties, provided, however, that for any Tritek Services provided on a limited basis (for example, on a per-user, server, CPU, or named-user basis), the Customer may increase the number of its licences hereunder, subject to a corresponding immediate, forward-going adjustment of the fees to reflect these changes in accordance with the pricing set forth in the applicable Sales Order and/or Change Order.

 

18.    Order Final Once Accepted: All Sales Orders are final upon acceptance by Tritek. The Customer acknowledges that the prices in this Sales Order represent the minimum fee that will be charged to the Customer on a monthly, recurring basis for the duration of the Term. Unless otherwise expressly stated otherwise in the Sales Order, the fees for services utilized shall be at Tritek's then-standard rates at the time of invoice issuance, and additional charges of the Customer’s product usage will be calculated on a monthly basis, based on actual measured usage at the price/rate that is negotiated by the Customer, as set out in the applicable Sales Order(s).

 

19.    Invoicing: During the Term, Tritek will send monthly invoices (the “Invoice(s)”) to the Customer at the address or email set out in the Agreement for the Customer, which invoice will set out the fees payable by the Customer. The Customer agrees to pay the Invoices in full within thirty (30) days after the latter of the date of the Invoice(s) or the Customer’s receipt of the Invoices. Notwithstanding the above, the Customer agrees to pay any Invoice(s) that contain hardware or software purchases within ten (10) days of the date of the Invoice(s) or the Customer’s receipt of the Invoices. The Customer will attend to payment of the Invoices without any deductions or set-offs. 

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20.    Adjustments to Invoices: The Customer will notify Tritek in writing of any suspect errors to the Invoices issued to the Customer within thirty (30) days of the Customer’s receipt of the Invoice. If the Customer does not notify Tritek in accordance with this section, the Customer is irrevocably deemed to have accepted the accuracy of the Invoice(s), and further waived any right to contest the Invoice(s). If Tritek determines that the Customer was improperly billed, the improper amount will be credited to the Customer and will be applied to the next Invoice. 

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21.    Fees Non-Refundable: The Customer is responsible for all fees listed in all Sales Order(s) and all payment obligations under the Agreement following any and all renewal(s) of the Agreement.  The Customer agrees that all payments made pursuant to any Sales Order(s) and the Agreement are non-refundable (regardless of the circumstances arising in the future).

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22.    Late Payments: If the Customer fails to pay the Invoice(s) within the applicable deadlines, the Customer will be pay a late payment fee of fifteen dollaras ($15.00) and/or an interest charge at the rate specified in the Invoice (which interest will not to exceed two percent (2%) per month compounded monthly/26.82% per annum), calculated from the Invoice date.  

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23.    Returned Cheques: If the Customer’s cheque for payment of the Invoices is returned for any reason, the Customer agrees to immediately pay an administrative fee of $50. If a second cheque by the Customer is returned for insufficient funds within a period of six (6) months, Tritek will require that future payments by cheque be certified. 

 

 

BREACH REMEDIES AND EARLY TERMINATION 

 

24.    Equipment Removal for Non-Payment: If the Customer breaches the Customer’s payment obligations, Tritek will be entitled to remove equipment delivered by Tritek to the Customer’s premises and dispose of such equipment in any manner deemed reasonable by Tritek, without prior notice, and apply the funds from the disposal of such equipment to pay down the amounts owed by the Customer, all without any liability on the part of Tritek. The Customer irrevocably authorizes Tritek to enter upon the Customer’s premises, for the purposes of exercising Tritek’s rights under this section. For greater clarity, such removal and disposal will not affect the obligation of the Customer to pay the full amount due and owing by the Customer (in respect of the equipment or Invoices issued).

 

25.    Support Hold: If the Customer is in breach of the Customer’s obligations under the Agreement, Tritek is entitled to place the Customer’s account under “Support Hold” without prior notice to the Customer, wherein all Tritek Services will be suspended indefinitely (including the Customer’s access to its account information) until all breaches are remedied by the Customer.

 

26.    Entitlement to Damages: If the Customer is in breach of the Customer’s obligations under the Agreement: (a) any and all payments payable by the Customer shall accelerate and become due and payable immediately; and (b) the Customer will be liable for all loss, costs and expenses incurred by Tritek as a result of the Customer’s breach of the Agreement, including loss of profit, and legal fees incurred by Tritek in the enforcement of the Agreement (on a full indemnity basis), which liability will survive termination of the Agreement regardless of the manner of termination. 

 

27.    Early Termination on Payment of Liquidated Damages: The Customer may terminate all or a portion of the Tritek Services (“Terminated Services”) at any time prior to the end of the then current Term by: (i) giving notice to Tritek at least forty-five (45) days prior to the proposed early termination date for the Terminated Services, and (ii) paying to Tritek as liquidated damages, an amount equal to the fees payable by the Customer for the Terminated Services for the balance of the then current Term had it not been terminated early. 

 

28.    Termination on Breach: Tritek is entitled to terminate all or a portion of the Tritek Services (“Terminated Services”) at any time, if Tritek has delivered to the Customer notice of a breach under the Agreement, and such breach has not been remedied within five (5) business days after the delivery of such notice, and if the Agreement in respect of the Terminated Services is so terminated, the Customer will pay to Tritek as liquidated damages, an amount equal to the fees payable by the Customer for the Terminated Services for the balance of the then current Term had it not been terminated early.

 

29.    Termination on Insolvency: Either party may terminate the Agreement immediately, by notice to the other party, in the event of the other party’s insolvency, receivership, voluntary bankruptcy, and if the Agreement is terminated by Tritek under this provision, the Customer will pay to Tritek as liquidated damages, an amount equal to the fees payable by the Customer for the balance of the then current Term of the Agreement had it not been terminated early. 

 

30.    Termination on Cessation of Tritek Services: Tritek is entitled to terminate all or a portion of the Tritek Services (“Terminated Services”) at any time, on notice to the Customer, if Tritek has ceased offering the Terminated Services to the general public, and if the Terminated Services are so terminated, all obligations and liabilities under the Agreement with respect to those Terminated Services will cease, unless expressly stated otherwise.

 

 

CONFIDENTIALITY OBLIGATIONS 

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31.    Confidentiality: Each party agrees to maintain confidentiality concerning the other’s Confidential Information, and agrees not to use, disclose, distribute or allow access to such Confidential Information by any other person or organization, other than those who have a need to know of the information in order to perform their obligations under the Agreement, which obligations will indefinitely survive the termination of the Agreement, regardless of the manner of termination. “Confidential Information” means information in whatever form furnished by or on behalf of either party that is not generally known to the public or recognized as standard industry practice or information that is designated as confidential by the furnishing party, including but not limited to business, strategic planning, financial, technical, trade secrets or other proprietary information, written or oral, acquired, shared, developed or provided under the Agreement, but does not include: (a) information which is not designated confidential by the furnishing party or which the party receiving such information can demonstrate is generally available to or known to the public, other than as a result of disclosure by such a person who breached his or her confidentiality obligations; or (b) was obtained by the party receiving such information from a source other than the party furnishing such information, provided that such source is not bound by a duty of confidentiality. This obligation shall survive termination of the Agreement, regardless of the manner in which it is terminated.

 

32.    Nothing contained herein will prevent either party from disclosing any Confidential Information of the other party to: (a) regulatory agencies, provided, however, that all reasonable steps are taken to maintain the confidentiality of such Confidential Information; (b) accountants, banks, or other financing sources (or their advisors) or in connection with a merger, acquisition or securities offering; or (c) third parties as required by law or regulation to be disclosed; provided, however, that the party subject to such disclosure requirement will provide written notice to the other party promptly upon receiving notice of such requirement (if permitted by applicable law) in order to enable the other party to seek a protective order or otherwise prevent disclosure of the other party’s Confidential Information.

 

 

MIGRATION TO COMPARABLE TRITEK SERVICES 

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33.    Migration to Comparable Tritek Service: At the sole discretion of Tritek, if the Customer terminates the Terminated Services for the purposes of migrating to a Comparable Service, Tritek may (but is not obligated to) waive the requirement for the Customer to pay the liquidated damages that would ordinarily be applicable.  A “Comparable Service” is a service offered by Tritek and purchased by the Customer, for a term that is at least as long as the term of the Agreement for the Terminated Services, and to which the applicable monthly fees are not lower than those fees payable for the Terminated Services. 

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LIMITATION OF LIABILITY AND INDEMNITY OBLIGATIONS

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34.    Disclaimer: Except as expressly stated in the Agreement, there are no warranties, expressed or implied, by operation of law, legislation, or otherwise. No verbal advice, written information or any other communication provided by Tritek’s staff or representatives will create any warranty or representation unless it is expressly set out in the Agreement. In particular, Tritek makes no warranties or representations of merchantability or fitness for a particular purpose, nor any warranties that the Tritek Services will not be interrupted or error free; however, Tritek will make good faith efforts to provide the Services in a professional and workmanlike manner.

 

35.    Additional Disclaimer. IN ADDITION TO THE OTHER TERMS AND CONDITIONS HEREIN, THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE CUSTOMER DATA MAY NOT BE AVAILABLE OR RESTORABLE IF (1) THE CUSTOMER UTILIZES THE TRITEK SERVICES IN EXCESS OF THE AMOUNT ORDERED; (2) COPIES OF CUSTOMER DATA WERE NOT COMPLETED FOR ANY REASON; (3) THE CUSTOMER ATTEMPTS TO BACK UP DEVICES, FILES, FOLDERS, OR DRIVES NOT SUPPORTED BY THE TRITEK SERVICES AS SET FORTH IN THE TRITEK MATERIALS; (4) THE CUSTOMER DESELECTS OR DELETES A DEVICE, FILE, FOLDER, OR DRIVE FROM THE CUSTOMER’S ACCOUNT, FROM THE CUSTOMER’S DEVICE, OR FROM BEING BACKED UP BY THE TRITEK SERVICES; (5) THE CUSTOMER MODIFIES THE CUSTOMER’S OPERATING SYSTEM IN A MANNER THAT BREAKS COMPATIBILITY OR INHIBITS THE FUNCTIONALITY OF THE TRITEK SERVICES OR SOFTWARE; (6) THE CUSTOMER’S COMPUTER IS UNABLE TO ACCESS THE INTERNET OR TRITEK INFRASTRUCTURE OR TRITEK’S SYSTEM; (7) THE CUSTOMER FAILS TO COMPLY WITH THE AGREEMENT OR THE TRITEK MATERIALS; OR (8) THE CUSTOMER TERMINATES OR FAILS TO RENEW SUBSCRIPTION TO THE TRITEK SERVICES.

 

36.    No Liability: Except as expressly stated in the Agreement, Tritek does not guarantee or assume responsibility for the Tritek Services, including any losses or damages that may result from the provision of the Tritek Services. Tritek does not guarantee that use of the Tritek Services will yield any specific results. The Services are provided to the Customer on an “as is” and “as available” basis, and the Customer’s access and use of the Tritek Services is at the Customer’s own risk, and the Customer will be solely responsible for any damage to the Customer, the Customer’s property, or the Customer’s loss of data that may result. Tritek assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content in the provision of the Tritek Services; (ii) personal injury or property damage, of any nature whatsoever, resulting from our Tritek Services; (iii) the acts or omissions of Tritek’s employees, contractors, or representatives performing Tritek Services; (iv) any unauthorized access to or use of Tritek’s secure servers and/or any and all personal information stored therein; (v) any delay in the Tritek Services; (vi) the failure to provide the Tritek Services; (vii) any bugs, viruses, trojan horses, or the like that may be transmitted to or through Tritek’s online or mobile service by any third party; and/or (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Tritek Services.

 

37.    Willful Misconduct: Unless caused by Tritek’s willful misconduct and/or gross negligence, Tritek (including each of their suppliers, contractors, or licensors) will not be liable for and the Customer irrevocably releases Tritek from any direct, indirect, punitive, incidental, special, consequential or exemplary damages suffered by the Customer in connection with or arising from the use of, or inability to use the Tritek Services, or any other matters related to the Agreement (including without limitation loss of profits, goodwill, use, data or other intangible losses, failure to realize expected savings or any other commercial or economic loss), whether arising in negligence, tort, statute, equity, contract, common law, or any other cause of action, even if Tritek has been advised of the possibility of such loss or damage. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and will apply even in the event of a breach of condition, a breach of an essential or fundamental term, or a fundamental breach of the Agreement. 

 

38.    Financial Limit of Liability: Regardless of any other provision of the Agreement, in no event will Tritek, be liable to the Customer for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the collective total of fees that the Customer paid to Tritek for a period of three (3) months in respect of the Tritek Service that allegedly gave rise to the liability (net of all discounts and credits).

 

39.    Indemnification: The Customer will indemnify and hold harmless Tritek (and its suppliers, contractors, or licensors), from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses arising from: (i) the Customer’s use of and access to the Tritek Services; (ii) any alleged or actual loss or damage to property, resulting from the performance of the Tritek Services, (iii) the Customer’s breach of any term of the Agreement; and (iv) the Customer’s breach of any applicable law, which indemnity will survive termination of the Agreement regardless of the manner of termination.

 

40.    Reasonable Terms: The Customer agrees that the limitations of liability and indemnity obligations set out in the Agreement are fair and reasonable in the commercial circumstances of the Agreement and that Tritek would not have entered into the Agreement but for the Customer’s Agreement to limit Tritek’s liability in the manner, and to the extent provided for in the Agreement. The Customer agrees that the sole and exclusive remedies that it has against Tritek in respect of the Tritek Services and the Agreement is exhaustively stated in the Agreement. 

 

 

MISCELLANEOUS TERMS 

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41.    Return of Property: Upon termination of the Agreement, each party will promptly return to the other party all property, including Confidential Information, belonging to the other party. 

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42.    Independent Contractors: The parties agree that the Agreement is a contract for services and the parties agree that it is their intention for each party to organize their business affairs in accordance with the understanding that the Customer is in a business of its own and not an employee or engaged in any joint venture with Tritek. In the fulfillment of Tritek’s obligations under the Agreement, the representatives and employees, contractors, agents, or permitted assignees, as the case may be, will provide the Tritek Services and the parties agree that they will do so on behalf of Tritek, and not in their personal capacity. The parties will not contract any liability or obligation on behalf of the other or enter into any agreement for or on behalf of the other, and any such obligation or agreement made without the prior written consent of the other will be void and unenforceable. 

 

43.    Non-Exclusitivity: The parties agree that Tritek is entitled to provide services that are the same or substantially the same as the Tritek Services to any other customer at the sole discretion of Tritek, both during and after the Term of the Agreement. The parties agree that nothing in the Agreement will restrict or limit in any way whatsoever Tritek’s right to provide any services to any other person or entity. 

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44.    Unavailable Delay: If Tritek fails to meet or is delayed or hindered in meeting its obligations within the time prescribed, and such failure is caused or materially contributed to by any cause beyond the reasonable control of Tritek, including acts of God, strikes, lockouts, labour troubles, drastic loss of operation funds, inability to procure labour and/or materials, failure of power, restrictive governmental laws or regulations, outbreak of communicable disease, illness or virus, pandemic or epidemic, civil unrest, riots, insurrection, war, acts of terrorism, or other reason of a like nature (collectively, an “Force Majeure Event”), the time for fulfilment of such obligation will be extended until the end of the Force Majeure Event, and Tritek will not be liable for any delay or failure to perform caused by the Force Majeure Event.  

 

45.    No Contra Preferentum: The language in all of parts of the Agreement will in all cases be construed as a whole and neither strictly for nor strictly against any of the parties to the Agreement. 

 

46.    Legal Compliance: The Customer warrants that there are no legal impediments which would prevent the Customer from entering into the Agreement and complying with the obligations in the Agreement. 

 

47.    No Implied Rights: Except for the licence and/or rights expressly set out in the Agreement, nothing contained in the Agreement shall be construed as granting the Customer or any other person any right, title, or interest in or to any Tritek Services, Tritek Materials, or the Software, whether by implication (either pursuant to common law or statute), estoppel, or otherwise. For clarity, Tritek reserves all rights not expressly granted in the Agreement. 

 

48.    Third Party Rights. Other than as expressly provided herein, the Agreement does not create any rights for any person who is not a party to it, and no person not a party to the Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.

 

49.    Waiver & Amendments: Except as expressly provided in the Agreement, no amendment or waiver of a provision will be binding unless made in writing by the party to be bound by such amendment or waiver. No waiver of any provision, or any portion of any provision, of the Agreement will constitute a waiver of any other part of the provision or any other provision of the Agreement nor a continuing waiver unless otherwise expressly provided.  

 

50.    Notice: Any notice required or permitted in the Agreement may be sent via email for the parties set out in the Sales Order, and will be deemed to have been received on the same day if delivered before 4:00pm.  

 

51.    Severability: All provisions of the Agreement are to be construed as separate and distinct covenants and agreements, separable from all other such separate and distinct covenants and agreements. Should any provision or provisions of the Agreement be determined to be illegal, void or unenforceable, it and they will be considered separate and severable from the Agreement and its remaining provision will remain enforced and be binding upon the parties. 

 

52.    Dispute Resolution: The Agreement and the rights and obligations of the parties will be governed, construed and enforced in accordance with the laws of British Columbia, without reference to conflicts of law principles. All disputes arising out of or in connection with the Agreement will be referred to and finally resolved by a single, independent arbitrator to be mutually selected by the parties, or by application to the Supreme Court of British Columbia by either party, administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The arbitration will take place in Surrey, British Columbia, and the costs of the arbitration will be shared equally between the parties, unless otherwise ordered by the arbitrator. The parties agree that they will not appeal any arbitration decision to any court.

 

53.    Enurement: The Agreement will be binding upon and enure to the benefit of each of the parties and their respective successors and permitted assigns. The Customer may assign its rights or obligations hereunder to any other person or entity without the prior written consent of Tritek (which consent may be arbitrarily withheld).

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54.    Entire Agreement: The Agreement (and all documents it incorporates by reference) constitute the entire agreement of the parties regarding the subject matter hereof, and supersede all prior agreements and understandings, both written and oral, among the parties, with respect to the subject matter hereof. If there are any terms in the Sales Order(s) that directly conflict with the terms in the SaaS Agreement, the terms of the Sales Order(s) shall prevail.

 

55.    Legal Advice: The Customer acknowledges that the Customer has received or has had a reasonable opportunity to receive independent legal advice and has read the Agreement and understands each of the party’s rights and obligations under the Agreement.