Service Agreement

THIS AGREEMENT (the “Agreement”) is between Mintent Software Corporation., a company incorporated pursuant to the laws of British Columbia, (“Mintent”) and you (as further described below, the “Client”). For the avoidance of doubt, the parties agree that the attached Schedules form an integral part of this Agreement.

WHEREAS, Mintent provides digital marketing services and digital marketing software to its clients and Client wishes to engage Mintent to perform such services on the terms and conditions set forth herein.

1. Project 1.1 Engagement. Mintent agrees to use commercially reasonable efforts to provide the Services to Client in a manner consistent with industry practice. The manner and means that Mintent chooses to perform the Services are in Mintent’s sole discretion and control. Client shall instruct Mintent fully as to Client’s total requirements in connection with the Services including any budget and/or time constraints. 1.2 Estimates. The parties expressly acknowledge and agree that the total cost of the Services and any time estimates provided by Mintent to Client under this Agreement are subject to change and are contingent upon factors over which Mintent may not have control. Mintent will communicate any changes to the estimated hours to the Client. 1.3 Change Requests. In the event that Client requests, whether verbally or in writing, any changes to the Services, (each, a “Change Request”), Client will be responsible for the payment of all additional Fees in connection with such Change Request. Notwithstanding the foregoing, Mintent shall have the right to refuse, in its sole discretion, any Change Request which it deems to be unreasonable. A Change Request document will be issued, agreed upon and signed by both Mintent and Client.
2. Payment 2.1 Fees. Client shall pay Mintent all fees, expenses and other costs incurred by Mintent in connection with the Services (the “Fees”). All fees, expenses and other costs will be agreed to by Client before being incurred by Mintent.Services may be suspended for non-payment. Suspension does not constitute termination of this Agreement. In the event Client fails to pay Mintent all amounts which become due under this Agreement and Mintent refers such matter to a third party or its lawyers for enforcement of this Agreement, Client shall pay, in addition to the amount due, any and all costs incurred by Mintent as a result of such action, including reasonable legal fees and disbursements. 2.2 Expenses. Client agrees to reimburse Mintent for expenses (e.g. stock photography, video, fonts, licenses, disbursements, etc.) incurred by Mintent in connection with providing the Services. All third-party expenses such as this will be agreed to by Client prior to any purchases being made on Client’s behalf. 2.3 Transfer of Intellectual Property. Upon payment in full of the Fees, Mintent agrees to assign and transfer all Intellectual Property in the Project (or any work product resulting from the Services) to Client. Notwithstanding the foregoing (or anything else to the contrary), title and ownership of all Intellectual Property in the Project (and all work product resulting from the Services) shall remain with Mintent until full payment of the Fees has been received by Mintent from Client, provided that: (a) Client hereby grants Mintent a limited, worldwide, nonexclusive, perpetual, irrevocable license to use such Intellectual Property for its internal business purposes; and (b)Mintent shall have the right to retain a copy of the relevant work product.“Intellectual Property” shall mean all intellectual property rights of any type whatsoever, including all rights which subsist in copyright, patent rights, trademark rights and designs, whether or not such rights are registered or able to be registered, but specifically excludes any pre-existing Intellectual. Property, business methods, know how, processes and ideas of Mintent.
3. Confidentiality Each party agrees to use reasonable efforts, during the Term, not to disclose any confidential information of the other party to any third parties. Notwithstanding the foregoing, Client agrees that Mintent shall be permitted to disclose confidential information: (a) to the extent that such disclosure is reasonably necessary in connection with its performance of the Services; (b) that was known to Mintent prior to Client’s disclosure hereunder or that becomes publicly available through no fault of Mintent; and (c) not gained as a result of a breach of this Agreement. For the purposes of this section, “confidential information” means all information designated in writing as confidential by a party and disclosed during the Term.
4. Term and Termination This Agreement shall continue from the Effective Date until terminated in accordance with its terms (the “Term”). Either party may terminate this Agreement upon 60 days written notice being delivered to the other party. In such event: (a) Client will immediately pay Mintent all Fees owed to it (including any Fees that may be subsequently invoiced by Mintent in connection with the Services) up to the date of termination; and (b) Mintent shall: (i) return the unused portion of any Deposit to Client; and (ii) be relieved of any further obligations relating to the Services (including to any subcontractors, suppliers or consultants). Sections 2 through 8 shall survive any expiration or termination of this Agreement.
5. Representations and Warranties Client represents and warrants that: (a) it has due and sufficient right, power and authority to enter into the Agreement; and (b) no materials which it provides to Mintent in connection with the Services (the “Client Materials”) will infringe upon or violate any intellectual property right of any third party. Client shall promptly indemnify and keep Mintent fully indemnified against all losses, liabilities, damages, costs and expenses suffered by Mintent for any claim asserted or brought against Mintent for any breach of this Agreement or on the ground that any Client Materials, or any part thereof, or anything done by Client, infringes any intellectual property rights of any third party.
6. Limitation of Liability IN NO EVENT SHALL MINTENT BE LIABLE TO CLIENT, OR ANY THIRD PARTIES, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL MINTENT BELIABLE TO CLIENT FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES OR THE PROJECT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, IN AN AMOUNT IN EXCESS OF THE AMOUNT OF FEES PAID BY CLIENT FOR THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING ANY ACTION OR CLAIM BY CLIENT.
7. Dispute Resolution 7.1 Notice of Dispute. To dispute a matter arising under this Agreement, a party must send a notice in writing of the dispute to the other party containing the particulars of the mater in dispute. The responding party shall send a notice in writing of the reply to the dispute within ten (10) working days after receipt of the notice of dispute setting out particulars of the response. The parties shall make all reasonable efforts to resolve their dispute by amicable negotiations and agree to provide, without prejudice, candid and timely disclosure of relevant facts, information and documents to facilitate these negotiations. 7.2 Mediation. In the event of a dispute between the parties with respect to this Agreement, the parties shall seek the assistance of a mediator to resolve such dispute, the mediator to be chosen with the consent of both parties. 7.3 Arbitration. If the parties cannot agree on a mediator if the dispute remains unresolved after mediation, the matter shall be referred to a single arbitrator pursuant to the Commercial Arbitration Act of British Columbia (as amended or replaced from time to time), and determination of such arbitrator shall be final and binding on the parties hereto. 7.4 Non-Payment of Fees. Notwithstanding anything to the contrary in this Section 7, in the event of non-payment of Fees by Client, Mintent shall have the right to take legal action against Client in a court of competent jurisdiction in British Columbia.
8. General 8.1 Relationship. The relationship between Client and Mintent is solely for the purposes and to the extent set forth in this Agreement and the relationship of Mintent to Client shall be that of an independent contractor. Mintent does not, in any way or for any purpose, become a partner of Client in the conduct of its business, or otherwise, nor a joint venture, nor member of a joint enterprise with Client. 8.2 Use of Client Material. Notwithstanding Section 3, Mintent may use Client’s name, image, photographs, trade-marks or any other promotional material of Client (a) to perform the Services, and (b) on client lists, its website or in any other communication by Mintent to prospective customers or business associates with the prior written consent of the Client. 8.3 Force Majeure. Mintent will not be in breach of this Agreement or otherwise liable to Client for any delay in performance or any non-performance of any obligations under this Agreement (and the time for performance will be extended accordingly) if and to the extent that the delay or non-performance is owing to an act of God, war, natural disaster, death or illness of Mintent personnel, governmental regulations, communication or utility failures or casualties. 8.4 Notices. Any notices required to be given under this Agreement shall be made in writing and mailed or delivered to the other party at the address provided above for the respective party. 8.5 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, proposals, representations or agreements, either written or oral, relating in any manner to the Services or the Project. 8.6 Governing Law. This Agreement shall be governed by and interpreted in accordance with the law of the province of British Columbia. 8.7 Assignment. Client shall not assign any or all of its rights or obligations under this Agreement without the written consent of Mintent. Mintent may assign this Agreement. 8.8 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the Agreement. 8.9 Successors and Assigns. Notwithstanding any term outlined herein, the Agreement shall inure to the benefit of and be binding upon the parties hereto and their lawful heirs, executors, administrators, successors and assigns. 8.10 Counterparts. This Agreement may be executed in one or more counterparts (including by way of facsimile or scanned signature pages), each of which shall be deemed to be an original, but all of which together shall be considered one and the same instrument.