Master Services Agreement

Table of contents

  1. Definitions
  2. Provision Of Services
  3. Fees And Payment
  4. Representations
  5. Intellectual Property
  6. Limitation Of Liability
  7. Confidentiality
  8. Term And Termination
  9. General

THIS MASTER SERVICES AGREEMENT (this “Agreement”) sets out the standard terms and conditions under which PROLEX MEDIA INC. a body corporate incorporated under the laws of the Province of Manitoba (“Prolex”) agrees to provide, and Client agrees to receive, the Services. For the purposes of this Agreement, “Client” means the party entering into the applicable SoW with Prolex. This Services Agreement was last updated on 2022.07.18 and is effective between Client and Prolex as of the commencement date of the applicable SoW (the “Effective Date”).In consideration of the mutual agreements and covenants contained in this Agreement and the SoW, the sufficiency and adequacy of which are hereby acknowledged and confirmed, Prolex and Client, intending to be legally bound, agree as follows:

1. Definitions

  1. “Background IPR” means any Intellectual Property Rights of a party conceived, created, developed, or reduced to practice prior to, or independently of, any Deliverables or Services provided under this Agreement.

  2. “Client Data” means the data, information or material provided, inputted or submitted by Client to Prolex in connection with the Services and may include Foreground IPR. 

  3. “Background IPR” means any Intellectual Property Rights of a party conceived, created, developed, or reduced to practice prior to, or independently of, any Deliverables or Services provided under this Agreement.

  4. “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.

  5. “Deliverables” means the goods or work product, if any, specified in an SoW to be provided by Prolex to Client under this Agreement during the course of providing the Services.

  6. “Foreground IPR” means any Intellectual Property Rights conceived, created, developed or reduced to practice by Prolex that is included in a Deliverable under this Agreement.

  7. “Intellectual Property Rights” or “IPR” means all rights in any invention, discovery, improvement, utility model, copyright, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how, all patent rights, patent applications and disclosures, copyrights, trademarks, service marks, trade names, logos, and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world and whether or not registered, and shall include all rights in any applications and granted registrations for any of the foregoing.

  8. “Services” means the services to be provided by Prolex to Client pursuant to this Agreement, as such services are detailed in an SoW, and includes any Deliverables to be provided in connection with such Services.

  9. “Statement of Work” or “SoW” means the applicable SoW, duly signed by each party, describing specific information related to the provision of the Services and, if applicable, delivery of the Deliverables, by Prolex to Client.

  10. “Subcontractor” shall mean a third party that has entered into an agreement with Prolex to assist in providing the Services to Client. 

2. Provision Of Services

  1. Prolex agrees to perform and Client agrees to accept the Services described in the SoW in accordance with the terms and conditions of this Agreement. The parties agree that Prolex will perform the Services as an independent contractor and not as an employee, joint venturer or partner of Client. Prolex may, in its discretion, engage such employees, personnel, and/or Subcontractors as it deems necessary to provide the Services to Client. A Statement of Work may be modified from time to time by an instrument in writing signed by each party’s duly authorized representatives.

  2. Client shall make available to Prolex any equipment, material, information, data and facilities as Prolex may reasonably require to carry out its obligations and shall provide Prolex with timely access to appropriate members of Client’s staff, representatives and employees as may be reasonably required by Prolex for the provision of the Services. Client shall be responsible for the timely performance of its obligations under this Agreement with respect to the requirements of Prolex in accordance with a Statement of Work. Client acknowledges that any delay on its part in the performance of its obligations may affect Prolex’s provision of the Services, including without limitation, timelines set forth under the applicable SoW, and Prolex shall not be responsible or liable for any resulting delays, damages or loss of any kind whatsoever resulting from such delays.

  3. If Prolex is required to access Client’s facilities, Client shall provide Prolex with such access during its normal business hours or at such other times as may be reasonably requested by Prolex to facilitate the timely performance of the Services. If reasonably necessary to assist with the provision of Services hereunder, Client shall also provide Prolex’s personnel with working space and office support (such as telephone access and photocopying) while such personnel are at Client’s facilities.

  4. Client acknowledges and agrees that Prolex may retain the services of Subcontractors from time to time to perform, or to assist Prolex in providing the Services. Prolex personnel and Subcontractors shall remain under the direction and control of Prolex.

3. Fees And Payment

  1. The fees for the Services are set forth in each SoW. Unless otherwise stated, all fees exclude applicable federal, provincial, use, value-added and local taxes (excluding taxes based upon Prolex’s net income). Client shall pay to Prolex the amount of any such tax.

  2. A deposit totaling fifty percent (50%) of the total fees for the Services set forth in each SoW is due with acceptance of such SoW. The deposit will be placed in a non-interest bearing account, and will be applied against future billings for Services provided by Prolex in accordance with the terms of this Agreement.

  3. Client shall reimburse Prolex for all reasonable expenses incurred and paid by Prolex and its Subcontractors up to the travel expense estimate, if any, specified in any SoW. Client shall reimburse Prolex for all reasonable expenses incurred and paid by Prolex and its Subcontractors in excess of such expense estimate; provided Client has authorized such expenses in writing and in advance. 

  4. All amounts payable under this Agreement (other than the deposit due on acceptance of the applicable SoW) shall be paid by Client to Prolex within fifteen (15) days of the date of invoice issued pursuant to a Statement of Work. Subject to Section 3(d) below, unpaid invoices issued pursuant to a Statement of Work which are more than thirty (30) days overdue may be subject to an interest charge of four percent (4%) per month or the maximum rate legally permitted, whichever is less. 

  5. Prolex reserves the right, exercisable in Prolex’s sole discretion, to require, concurrently with the execution and delivery of the applicable SoW, or at any time during which this Agreement remains in effect, Client to execute and deliver a Credit Card Pre-Authorization in the form provided by Prolex. By its execution and delivery of the Credit Card Pre-Authorization, Client acknowledges and agrees that in the event that any payment owing to Prolex by Client in accordance with the terms of this Agreement is not paid by Client within the prescribed period, Prolex is authorized and directed to charge and debit to the payment information set forth in the Credit Card Pre-Authorization the full amount of any such unpaid balance in satisfaction thereof. Client may at any time revoke such authorization and direction, provided that such revocation shall confer upon Prolex the right to terminate this agreement in accordance with Section 8(c) hereof. 

4. Representations

  1. Prolex represents to Client that the services performed pursuant to this Agreement shall be performed in a professional manner in keeping with reasonable industry practice.

  2. Client shall not utilize any Deliverables or Services other than in compliance with all applicable laws.  

  3. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, BOTH PARTIES DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.

5. Intellectual Property

  1. The Background IPR of a party shall at all times remain the exclusive property of such party and shall be deemed to be the Confidential Information of such party.

  2. All right, title and interest in, to and under the Foreground IPR embodied in the Deliverables shall vest in and be held in trust by Prolex for the benefit of Client until such time that all outstanding amounts owing under the SoW for which such Deliverables were to be provided have been paid in full and, until such payments are made, such Foreground IPR is deemed to be the Confidential Information of Prolex.

  3. In respect to any Background IPR of Prolex incorporated in a Deliverable, Client is hereby granted a non-exclusive, non-transferable, non-sublicensable, non-assignable, royalty-free, worldwide license to make, have made, use, copy and disclose such Background IPR, but solely to the extent necessary to use and exploit the Deliverable as contemplated in the applicable Statement of Work and only so long as such Background IPR is embedded in the Deliverable and not separated therefrom.

  4. In respect of any Background IPR of Client disclosed to Prolex, Prolex is hereby granted a non-exclusive, non-transferable, non-sublicensable, non-assignable, royalty-free, worldwide license for the term of this Agreement to make, use and copy such Background IPR, but solely to the extent necessary to provide the Services to Client pursuant to this Agreement.

  5. Except as explicitly provided herein, no other license is granted under any Intellectual Property Right.

  6. Nothing in this Agreement shall prevent Prolex from providing to a third party the same or similar Services as those provided to Client pursuant to this Agreement, subject to any provisions to the contrary which may be set out in an applicable Statement of Work. Nothing contained in the foregoing shall confer upon Prolex the right to breach any proprietary intellectual property rights of Client.

6. Limitation Of Liability

  1. Prolex shall have no liability for any loss suffered by Client and shall be indemnified and held harmless by Client against any third party loss or claim in respect of any Deliverable or Service if:

    1. such Deliverable or Service is used by Client outside the scope or the license granted in this Agreement or in a manner or for a purpose other than that for which it was supplied or in a manner or for a purpose other than as instructed by Prolex;

    2. such Deliverable or Service is modified by Client without the written consent of Prolex; or

    3. such Deliverable or Service is used by Client in combination with other items not provided by Prolex and a claim arises from such combination or the use thereof.

  2. Any property owned by Client and used in production of the Deliverables or in the course of providing the Services shall be used at the sole risk of the Client and Prolex shall have no liability for any damages resulting to such property howsoever caused, except if, and only to the extent that, damage to such property is directly attributable its use by Prolex for purposes other than to provide the Services in accordance with the terms of this Agreement, including the applicable SoW.

  3. IN NO EVENT SHALL PROLEX (INCLUDING PROLEX’S AFFILIATES, DIRECTORS, OFFICERS, SUBCONTRACTORS, AGENTS, SUPPLIERS, OR EMPLOYEES) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. 

  4. IN NO EVENT SHALL PROLEX’S TOTAL CUMULATIVE LIABILITY PURSUANT TO THIS AGREEMENT EXCEED THE FEES PAID BY CLIENT TO PROLEX PURSUANT TO THIS AGREEMENT.

7. Confidentiality

  1. Each party shall retain the Confidential Information of the other party in confidence and shall use and disclose it solely for the purpose of, and in accordance with, this Agreement. Each party shall only disclose Confidential Information of the other party to those of its employees and Subcontractors with a need to know such Confidential Information. Each party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use or disclosure of the other party’s Confidential Information.

    Neither party shall be bound by any obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information of the other party, or any part thereof, which:

    1. was known to the receiving party prior to disclosure;

    2. was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement;

    3. was disclosed to the receiving party by a third party, provided that such third party is not in breach of any confidentiality obligation in respect of such information; or

    4. is independently developed by the receiving party.

  2. If the receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of the disclosing party, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, and (ii) provide prior notice to the disclosing party to allow the disclosing party to seek protective or other court orders.

  3. Upon request from the disclosing party, the receiving party shall immediately return to the disclosing party all Confidential Information and any copies, proposals, reports, testing, evaluations, research, analysis, notes, studies (including case studies), forecasts, compilations or other information, in any form, that are based on, contain or reflect the disclosing party’s Confidential Information, or if directed by the disclosing party, shall immediately destroy such Confidential Information, all copies proposals, reports, testing, evaluations, research, analysis, notes, studies (including case studies), forecasts, compilations or other information, in any form, that are based on, contain or reflect the disclosing party’s Confidential Information, and shall furnish proof of their destruction to the disclosing party.

8. Term And Termination

  1. The term and any renewal terms relating to the Services provided by Prolex to the Client under this Agreement are as specified in the SoW, unless earlier:

    1. terminated in accordance with the terms of this agreement; or

    2. terminate by mutual agreement of the parties.

  2. Either party may terminate an SoW and this Agreement for any reason by giving the other party not less than sixty (60) days’ prior notice, provided that Client shall be responsible for paying any amounts owing, including any amounts accrued in connection with any work in progress, up to the date of termination and Prolex shall have the right to retain any and all materials in its possession pending full and final payment of balances owing from Client to Prolex. The obligations of the parties shall continue during the notice period.

  3. In the event either party (the “defaulting party”) is in a material breach of, or fails to perform a material obligation under, this Agreement or a Statement of Work, the other party may, by notice, require the breach to be cured or the obligation to be performed. If, within fourteen (14) days of the receipt of such notice, the defaulting party fails to undertake a reasonable course of action to cure such breach, or fails to perform such obligation, the non-defaulting party may upon notice, in addition to any other rights or remedies it may have at law or in equity, terminate this Agreement.

  4. If Prolex terminates an SoW due to Client’s material breach or if Client terminates a Statement of Work in accordance with Section 8(b) hereof, Prolex shall not be obligated to do further work under such SoW. Client shall pay to Prolex the full fee for any completed Deliverables and a pro-rata fee for any uncompleted Deliverables in addition to any other direct or indirect costs, expenses, fees or otherwise incurred by Prolex up to such date pursuant to a Statement of Work and all additional costs for which Prolex has the right to reimbursement. Prolex shall provide any completed and/or uncompleted Deliverables to Client subject to the licenses granted in Article 5 of this Agreement.

  5. If Client terminates a Statement of Work due to Prolex’s material breach or if Prolex terminates a Statement of Work in accordance with section 8(b) hereof, Prolex shall not be obligated to do further work under such Statement of Work. Client shall pay to Prolex the full fee for any completed Deliverables and a pro-rata fee for any uncompleted Deliverables in addition to any other direct or indirect costs, expenses, fees or otherwise incurred by Prolex up to such date pursuant to a Statement of Work and all additional costs for which Prolex has the right to reimbursement. Prolex shall provide any completed and/or uncompleted Deliverables to Client subject to the licenses granted in Article 5 of this Agreement.

  6. Termination of this Agreement or a Statement of Work shall not entitle Client to withhold payment of any amount due or accruing to Prolex prior to the date of such termination, or to reimbursement of any amount previously paid to Prolex.

  7. The provisions of Sections 4 through 9 and all payment obligations shall survive termination of this Agreement for any reason. Furthermore, all other terms and limitations, exclusions, and warranties contained in this Agreement that by their sense and context are intended to survive the performance thereof by the parties shall so survive the completion of performance and termination of this Agreement.

9. General

  1. Safety. Client shall take all steps reasonably necessary to ensure the health and safety of the employees and Subcontractors of Prolex when such personnel are performing services at Client sites and Client shall advise such personnel of the rules and regulations governing their conduct at Client sites.

  2. No Partnership. Nothing contained in this Agreement shall be deemed to constitute either party as the partner, agent or legal representative of the other party or to create any joint venture or fiduciary relationship for any purpose whatsoever. Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall confer on either party any authority to act for, bind, or create or assume any obligation or responsibility on behalf of the other party.

  3. Notice. Any notice to be given hereunder shall be given to the party’s project contact in writing by prepaid receipted mail or electronic mail and shall be effective as follows: (i) in the case of electronic mail, on the next business day; and (ii) in the case of receipted mail, two (2) business days following the date on which such mail is noted as receipted.

  4. Force Majeure. Neither party shall be deemed in default hereunder or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with the terms of this Agreement (except for payment obligations) due to any causes beyond its reasonable control, which causes include but are not limited to acts of God or the public enemy; riots and insurrections, war, accidents, fire, strikes and other labor difficulties (whether or not the party is in a position to concede to such demands), embargoes, judicial action, lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, utilities, components or machinery, acts of civil or military authorities.

  5. Marketing/Promotion. Prolex may reference Client as a customer in marketing, promotional materials and public statements, subject to trademark and logo usage guidelines provided by Client.

  6. Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.

  7. Assignment. Neither Client nor Prolex shall assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the other party, except that Prolex may, without the consent of Client, assign this Agreement to any party which acquires all or substantially all of its related business by merger, sale of assets, or otherwise.

  8. Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.

  9. Governing Law. This Agreement shall be governed by the laws of the Province of Manitoba, and the federal laws of Canada, as applicable, without regard to its conflict of law principles. The jurisdiction for any legal action shall be a court in the Province of Manitoba. 

  10. Entire Agreement. This Agreement and all of the SoWs made pursuant hereto constitute the entire agreement between the parties on the subject matter hereof and supersede all prior agreements, communications and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized representative of both parties. In the event of any conflict or inconsistency between the terms set forth in an applicable SoW and the terms hereof, the terms of this Agreement shall govern.

  11. Headings. Headings contained in this Agreement are solely for convenience of reference and are not intended to be complete or accurate descriptions of content or to be guides to interpretation of this Agreement or any part of it.

  12. Legal Advice. Client acknowledges and confirms that Client has been independently advised by legal counsel in respect to the nature and effect of the provisions of this Agreement and the obligations it imposes upon Client or has otherwise chosen, of Client’s own accord and without any discouragement whatsoever by Prolex, not to obtain independent legal advice in connection with this Agreement, in which case Client waives the absence of independent legal counsel as a defence to the enforcement of this Agreement.