Canada Terms and Conditions

Catalyst Canada Inc. Terms and Conditions of Service (the “Agreement”)

1. Applicability and Services. These Terms and Conditions of Service (the “Agreement”) are the only terms that govern the provision of services by Catalyst Canada Inc. (“Catalyst”) to the client named (the “Client”) in the related purchase order, invoice and/or statement of work (each referred to herein as “SOW”). Catalyst will provide the goods or services (collectively the “Services”) as described in the SOW and in accordance with this Agreement.

2. Fee and Taxes. Client will pay the fee stated in the SOW (the “Fee”). Client is responsible for all sales, use and excise taxes and any other similar taxes imposed on any amounts payable by Client hereunder.

3. Expense. Client agrees to reimburse Catalyst for all reasonable travel and out-of-pocket expenses incurred by Catalyst in connection with the performance of the Services. Catalyst will comply with any written travel reimbursement policy provided by Client to Catalyst.

4. Invoices. Client shall pay all invoices, except in the case of a good faith dispute, within thirty (30) days of delivery of the Services.

5. Intellectual Property. Each party and its licensors are and shall remain the sole and exclusive owner of all right, title and interest in and to any documents, data, materials, information, methodologies, or know-how, including any intellectual property rights contained therein, provided by such party to the other during the course of the Services (“Pre-Existing Materials). Neither party shall have any right or license to use the other party’s Pre-Existing Materials, except: (i) by Catalyst solely during the Term of this Agreement to the extent necessary to provide the Services to Client and (ii) by Client solely in accordance with any license granted by Catalyst in the SOW related to the Services. Any work product and all intellectual property contained therein that is delivered to Client by Catalyst pursuant to the SOW (the “Deliverables”) is also the exclusive property of Catalyst, except for any Client Pre-Existing Materials or Confidential Information, each of shall at all times by treated by Catalyst in accordance with Paragraphs 5 and 6 of this Agreement, respectively.  Client will maintain and not remove the Catalyst copyright notices on the Deliverables and any copies thereof.

6. Confidential Information. Any non-public information provided by Client to Catalyst in connection with the Services that is confidential or proprietary is “Confidential Information”. Catalyst will not use or disclose the Confidential Information, except to provide the Services or as otherwise permitted by this Agreement. To the extent legally permissible, Catalyst will destroy all Confidential Information within ten (10) business days of a written request from Client. Client acknowledges that in order to preserve the anonymity of Client employees, any records containing Client employee interview or survey responses shall not be provided to Client. If legal demands are made on Catalyst to disclose any Confidential Information, Catalyst will provide Client with prompt notice and Client may seek a protective order or other appropriate remedy; provided however, the Catalyst will not be liable for damages because of any failure to provide timely notice. Catalyst will disclose only such information it reasonably believes it is legally required to furnish. Client agrees to reimburse Catalyst for reasonable costs and expenses (including attorneys’ fees) incurred by Catalyst in responding to or defending against any demand that Catalyst disclose any Confidential Information. Confidential Information shall not include information that: (i) is already known to Catalyst without restriction on use or disclosure prior to receipt of such information from the Client; (ii) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of Catalyst; or (iii) is received by Catalyst from a third party who is not under any obligation to the Client to maintain the confidentiality of such information.

7. Representations and Warranties.

7.1 Catalyst represents and warrants to Client that: (i) it has the right and authority to enter into this Agreement and (ii) that it will perform the Services: (a) in a timely, professional and workmanlike manner and (b) in accordance with the SOW specifications, and (c) all applicable laws (“Catalyst General Warranty”).  Catalyst further represents and warrants to the Client that Client’s use of the Deliverables in accordance with the license granted in the related SOW will not infringe or misappropriate the intellectual property rights of any third parties (“IP Warranty”). All other warranties, express or implied are expressly disclaimed by Catalyst, including any warranty or merchantability or fitness for a particular purpose.

7.2 Client represents and warrants to Catalyst that (i) it has the right and authority to enter into this Agreement; and (ii) has obtained and will maintain all necessary licenses and consents to comply with all applicable laws in relation to the Services before the date on which the Services are to start.

8. Remedies. The Catalyst General Warranty period expires 30 days from delivery of the Services.  The IP Warranty expires 12 months from the delivery of the Services. In the event of a breach of the representations and warranties by Catalyst during the applicable warranty period, Client’s exclusive and sole remedy at its option is either: (i) for Catalyst to repair or replace the non-conforming Services at no additional charge, or (ii) refund the Fees paid for the non-conforming portion of the Services.

9. Notice. Each party shall provide notice to the other party at the addresses set forth on the SOW. All notices sent to Catalyst shall be sent to the attention of the Stacey Bain, CFAO.

10. Effective Date. This Agreement shall be effective and binding on both parties upon the sooner to occur of: (1) Catalyst’s delivery of services to the Client, (2) Client’s payment of a fee to Catalyst, or (3) execution of a statement of work signed by both parties referencing this Agreement.

11. Change Orders. Changes to any Services will incur corresponding changes to the Fee and/or delivery schedule and require a written change order.

12. Termination. This Agreement will expire upon delivery of the Services and payment of the Fee and all expenses.  This Agreement and any SOW may not be sooner terminated, except: (i) for convenience pursuant to the cancellation clause in the related SOW; or (ii) for cause, in the event of any deficiency in the delivery of the Services or unpaid Fee. In the event of a termination for cause, Client will only be liable to pay the Fee in proportion to the Services accepted and work-in-progress as of the date of such notice of termination.

13. Limitation of Liability.

13.1  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2  IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE SERVICES RELATED TO THE CLAIM OR $100,000, WHICHEVER IS LESS (THE “LIABILITY CAP”). THE LIABILITY CAP SHALL NOT APPLY TO ANY CLAIM FOR UNPAID FEES OR DAMAGES OR LIABILITY ARISING FROM GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILL WILLFUL MISCONDUCT OF EITHER PARTY IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.

14. Independent Contractor. Catalyst is performing the Services as an independent contractor, and not as an employee, partner or joint venturer of Client.

15. Insurance. Catalyst maintains insurance with reputable insurance providers in the following amounts, at least: CAN$2,000,000 in the aggregate and CAN$2,000,000 per occurrence in commercial general liability..

16. Miscellaneous. This Agreement and the rights, interests or obligations set forth herein may not be assigned by either party without the prior written consent of the other party. No person(s) are intended as third-party beneficiaries. Headings are for convenience only. This Agreement shall be governed by the laws of the State of New York. Any disputes arising under this Agreement shall be brought exclusively in the federal or state courts located within the County of New York, State of New York and the parties waive any objection to the jurisdiction or venue of such courts. This Agreement and the invoice constitute the complete, exclusive and final expression of the agreement between the parties, and supersedes all prior discussions, understandings and agreements between them, with respect to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless it is in writing, signed by both parties and specifically references this Agreement and the provisions to be altered. This Agreement shall prevail over any Client general terms and conditions regardless of when Client has submitted its request for proposal, order or such terms.  The provisions of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these terms. Terms contained in any Client document for which acceptance is required as a condition of payment after the delivery of Services are hereby deemed null and void. A waiver of any provision herein is not a waiver with respect to any other provision and is effective only in the specific instance and for the specific purpose for which it was given. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, it shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible. Sections 5, 6, 7, 8, 12, 13, and 16 shall survive termination or expiration of this Agreement, subject to any limitations contained herein.

Version: 25 October 2019