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Wired Builder Master Services Agreement
Additional Terms
1552996 B.C. LTD. (doing business as Wired Builder) 10322 168 Street, Surrey, BC V4N 1Z4, Canada hello@wiredbuilder.com
PLEASE READ CAREFULLY: BY SIGNING AND ACCEPTING A PROPOSAL OR QUOTE (OR ACCEPTING DELIVERY OF THIRD PARTY PRODUCTS OR SERVICES FROM WIRED BUILDER) CLIENT ACCEPTS THAT THESE ADDITIONAL TERMS AND CONDITIONS WILL GOVERN THE DELIVERY OF SERVICES BY WIRED BUILDER TO THE CLIENT. IF CLIENT DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL TERMS OF THIS AGREEMENT, THEN DO NOT INDICATE YOUR ACCEPTANCE.
IN CONSIDERATION OF THE SERVICES DELIVERED, THE FEES, MUTUAL COVENANTS AND ALL OTHER VALUABLE CONSIDERATION DESCRIBED HEREIN, THE PARTIES AGREE THAT ALL PROPOSAL(S) WILL BE SUPPLEMENTED BY THESE TERMS AND TOGETHER, WILL BE DEEMED A BINDING CONTRACT BETWEEN CLIENT AND WIRED BUILDER. Terms regarding Third Party Products (including Schedule A) apply only to the extent Client has purchased, accessed or used such products or services.
1. Term
The term of this Agreement shall commence and THESE TERMS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CLIENT AGREES TO A PROPOSAL, THE FIRST DATE SERVICES ARE SUPPLIED BY WIRED BUILDER OR THE DATE ON WHICH CLIENT DOWNLOADS, INSTALLS, ACTIVATES OR USES A THIRD PARTY PRODUCT. Subject to early termination as provided herein, the Term shall end on the latest date specified for the delivery of Services under any Proposal in place with Client.
2. Definitions
All capitalized terms shall have the following meanings in this Agreement and all documents governed by it, unless otherwise specifically set out in such other documents:
“Affiliate” means any entity that controls, is controlled by, or is under common control with a party hereto. “Control” shall mean: (i) ownership (either directly or indirectly) of greater than fifty percent (50%) of the voting equity or other controlling equity of another entity; or (ii) power of one entity to direct the management or policies of another entity, by contract or otherwise.
“Agreement” means this Agreement which includes all Proposal(s) and Schedules hereto as such may be modified by the parties from time to time.
“Applicable Laws” means all applicable (i) federal, provincial and municipal laws, regulations, ordinances, permits, licences, notices and other similar requirements, including but not limited to stock exchange policies, (ii) subpoenas or other final decisions of a court or any similar judicial or legal process, and (iii) administrative actions, final rulings, regulations, orders or other request of any government agency, legislative or regulatory authority of competent jurisdiction, all as amended from time to time.
“Client” means the entity identified as “Client” in a Proposal and all references to “Client” shall include, as applicable, all of the Client’s employees, contractors, directors, officers, agents and permitted successors and assigns.
“Confidential Information” has the meaning defined in S. 6.
“Deliverables” means all “Services and Deliverables” described in the Proposal(s) and provided by Wired Builder hereunder, EXCEPT Third Party Products which are expressly excluded from the Deliverables. Without limiting the foregoing and subject to S. 5, Deliverables shall include all work product from the Services including all writings, designs, copy, code, configurations or works of authorship produced by Wired Builder and any intellectual property that Wired Builder conceives, creates, develops, or reduces to practice in connection with performing the Services.
“Incorporated Material” has the meaning defined in S. 5.2.
“Fees” means all fees and charges for the Services at the rates and prices described in the Proposal(s), including but not limited to all licence fees for any Third Party Products, as applicable. For clarity, Fees do not include applicable taxes or withholdings which will apply as invoiced or otherwise provided in a Proposal.
“Force Majeure Event” has the meaning described in S. 13.
“Losses” includes all claims, actions, causes of action, expenses of investigation, costs (including without limitation legal fees and disbursements), liabilities, losses, damages, settlement amounts, judgements, taxes, interest and penalties of any kind.
“Material Breach” means a failure to observe or perform any material obligation under this Agreement, if such breach is not rectified to the reasonable satisfaction of the complaining party within 30 calendar days after receipt of notice from the complaining party detailing such failure.
“Wired Builder” means 1552996 B.C. LTD., doing business as Wired Builder, including, as applicable, all of its employees, contractors, directors, officers, agents, permitted successors and assigns and any of its Affiliates that perform Services hereunder.
“Proposal(s)” means all proposals, quotes or statements of work agreed to and signed by the parties, including all amendments thereto. All future Proposals signed during the Term shall be automatically made subject to these terms.
“Services” means all professional consulting and build services and Deliverables to be provided by Wired Builder further to the Proposal(s), which may include sales systems and enablement, website design and development, search engine optimization, automation, security, and related advisory work. The Services may also include the provision of Third Party Products and related implementation and configuration, as well as on-site or virtual training for their use.
“Term” means the term of this Agreement indicated in S. 1 and includes the initial term and any renewal term(s) agreed to in writing.
“Third Party Product(s)” means all hardware and software products and related services from third party vendors or licensors that are resold to and licensed by the Client or utilized on Client’s behalf by Wired Builder in connection with the Services (including all related software patches or fixes or hardware components or parts) and as may be identified in a Proposal.
3. Service Delivery
3.1. Client Policies. Subject to S. 8.2 (Service Warranty), Wired Builder will use commercially reasonable efforts to deliver Services in accordance with Client policies, standards, and procedures that apply to delivery of the Services, such as for Client site visits, to the extent Wired Builder is made aware of same, in writing, reasonably in advance.
3.2. Client Responsibilities. Client acknowledges and agrees to perform those items, if any, detailed as “Client Expectations” in the Proposal(s). Client agrees that successful delivery of Services and Deliverables may depend on the timely delivery of such items by Client and Client will not hold Wired Builder responsible if such items do not occur, are delivered late or otherwise negatively affect performance by Wired Builder. Some Services may require Client to have specialized knowledge or meet particular software or hardware requirements (for example, appropriate computers or software, a stable Internet connection, or up-to-date web browsers or operating systems), and if technical issues arise as a result of these requirements, Wired Builder will use commercially reasonable efforts to resolve issues but will have no liability to do so. Wired Builder will not refund any Fees due to Client failure to meet “Client Expectations”.
3.3. Acceptance Procedures. Client will have 30 calendar days to evaluate any interim and final Deliverables (the “Acceptance Period”) to ensure that they materially comply with Deliverables specifications and requirements as detailed in the Proposal(s). Subject to S. 10.2 (Affected Deliverables), Client may reject any aspect of the Deliverables during the Acceptance Period for material non-compliance with this Section, further to which the Client may elect one of the following remedies. Client may either: (i) grant additional time to Wired Builder to provide (at no additional charge) corrected Deliverables, subject to evaluation and acceptance in accordance with this Section; (ii) itself correct the Deliverables (or engage a third party to do so) and deduct mutually agreed upon reasonable costs and expenses therefore from Fees due for corrected Deliverables; or (iii) elect to cancel further delivery of the rejected Deliverable or terminate a related Change Request Form, and Wired Builder will reduce applicable Fees, as it deems appropriate, in proportion with the cancelled Deliverable. Client will be deemed to have accepted all Deliverables after the applicable Acceptance Period has passed.
3.4. Supply of Third Party Products. Client accepts that any Third Party Products supplied or utilized in connection with the Services are supplied or utilized strictly on an “as is” basis and subject to the additional terms in Schedule A hereto. Third Party Products are therefore expressly excluded from the Deliverables and are supplied or utilized subject to: (i) the warranty and (ii) any applicable end user licence agreement or other terms of use agreed to with the vendor or licensor of such Third Party Products.
3.5. Project Management. Each party shall appoint a project manager to co-ordinate that party’s activities related to the Services and be the primary point of contact for notice and matters related to this Agreement. Client’s project manager shall issue assignments and general direction and guidance in connection with the Services. All performance related inquiries shall be directed first to each party’s project manager.
4. Wired Builder Personnel
Wired Builder will retain full discretion over which personnel provide the Services and may substitute personnel as reasonably required for its own business purposes. Upon reasonable request, Wired Builder shall replace any person delivering the Services with another person acceptable to Client, provided any costs associated with such replacement will be 100% borne by Client where such change is requested for reasons other than a defect in Services delivery. Wired Builder shall be solely responsible for all wages, tax and other withholdings, employment insurance premiums, worker’s compensation, health care and other benefits, and other amounts due to Wired Builder employees or subcontractors. Wired Builder shall require all subcontractors to comply with applicable terms of this Agreement such as, but not limited to, confidentiality and Applicable Laws including with respect to workers’ compensation and compensation remittances.
5. Property Rights
5.1. Ownership of Deliverables. Except for Incorporated Material (defined below) and subject to these terms, all Deliverables will be the exclusive property of Client. Wired Builder irrevocably assigns to Client all right, title and interest, worldwide, in and to all intellectual property rights contained in or related to the Deliverables. And Client grants Wired Builder a perpetual, irrevocable, fully-paid-up, royalty-free, worldwide licence to use the Deliverables for purposes of meeting its obligations hereunder and to otherwise retain a copy of all Deliverables for business continuity and administrative purposes. Upon reasonable request, Wired Builder shall make reasonable efforts to provide copies of additional waivers and releases as Client may request to register or protect intellectual property rights, including waivers of moral rights from employees and contractors who are authors or inventors of any Deliverables, provided that Client will reimburse Wired Builder for any reasonable out-of-pocket expenses actually incurred by Wired Builder in complying with such requests.
5.2. Incorporated Material. Client acknowledges that if any material, creations, technology, inventions, discoveries, or works of authorship, including any methodologies, tooling, templates, frameworks or know-how, conceived, created or reduced to practice by or for Wired Builder (alone or with others) either prior to delivery of Services or developed independently during the Term (“Incorporated Material”) are incorporated or embedded in the Deliverables, such Incorporated Material will remain the exclusive property of Wired Builder or its suppliers, as applicable. Wired Builder grants Client a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty-free, worldwide licence to use the Incorporated Material for its internal business purposes only and not for distribution to third parties without consent.
5.3. Limited Licence. Except for the limited licences granted herein, nothing in this Agreement shall transfer any other right, title or interest in or to the Incorporated Material, Marks, Confidential Information, Third Party Products or any intellectual property rights whatsoever therein, whether by implication, estoppel or otherwise. Nothing herein shall limit either party’s independent development or marketing of products, services or ideas similar to the Services or any Confidential Information supplied hereunder.
5.4. Trademarks and Trade Names. No party will have or claim any interest in any trademark, service mark, or trade name claimed or owned by the other during the Term (collectively the “Marks”) whether or not used in delivery of the Services. Each party will remain the sole and exclusive owner of all right, title, and interest in and to their own Marks. Any and all use of Wired Builder Marks by Client will be deemed made by Wired Builder for the purposes of trademark registration and will enure solely to the benefit of Wired Builder. No party will contest, oppose, or challenge the other’s ownership of any Marks, or do anything to impair the other party’s ownership or rights in their own Marks. No party will create, adopt, use, or try to register a corporate name, trade name, trademark, or any other designation that includes any of the Marks or a term confusingly similar to any of the Marks.
6. Confidentiality
6.1. Signed NDA. If the parties sign a separate Non-Disclosure Agreement or other confidentiality terms (an “NDA”), all Deliverables shall constitute “Confidential Information” governed by such NDA and the terms of such NDA shall supersede these terms with respect to the subject matter of the NDA. In the absence of any NDA, these S. 6 terms shall apply.
6.2. Definitions. The following additional definitions apply to these terms:
“Confidential Information” means, subject to these terms, any and all non-public information, disclosed by either party to the other, whether disclosed prior to or after the date of this Agreement, about the business or operations of the Discloser including, but not limited to: (i) the Services, pricing and other terms of this Agreement and all other information identified as confidential, a trade secret or proprietary information, or that the Recipient knows or should know by the context or otherwise is confidential, a trade secret or proprietary; (ii) all technical and non-technical information and materials, including proprietary techniques and know how, business methods, strategies and plans, models, inventions, financial, marketing and sales, product, or personnel information, customer, supplier and partner data, processes, apparatus, equipment, algorithms and formulae, software programs, software source code, screen displays, research and experimental work, sketches, drawings, development, engineering and design details and specifications; and (iii) third party information that is confidential or for which the Discloser is under an obligation of confidentiality, including with respect to suppliers and clients of the Discloser.
Confidential Information does not include information: (i) legally in the possession of a Recipient before receipt from the Discloser as demonstrated by written records predating the date of this Agreement; (ii) that was, is or becomes generally available to the public by means other than as a result of breach of this Agreement; (iii) independently developed by or on behalf of the Recipient without use of Confidential Information, provided such independent development can be verified by documentary evidence; or (iv) disclosed by a third party free of any duty of confidentiality or fiduciary duty when the disclosure was made.
“Aggregated Services Data” means all data derived by Wired Builder from performing the Services.
“Discloser” means either party, including as the context requires, its Affiliates and Representatives who disclose or deliver Confidential Information.
“Recipient” means either party, including as the context requires, its Affiliates and Representatives who directly or indirectly receive Confidential Information.
“Representative” means, with respect to any party or its Affiliates, all of their directors, officers, employees, contractors, agents, advisors, counsel and auditors.
6.3. Use and Disclosure of Confidential Information. The parties agree that all Confidential Information shall be held in strict confidence by the Recipient and shall be used only in connection with the performance of this Agreement, and no party shall disclose or permit disclosure of any Confidential Information except:
(a) with written permission of the Discloser;
(b) pursuant to Applicable Laws, provided that, to the extent permitted, Recipient provides the Discloser prior notice of the intended disclosure and a reasonable opportunity to oppose such disclosure or, if prior notice is not permitted, at least prompt notice of such disclosure; or
(c) to Affiliates and Representatives who have a need to know and are bound by legal, professional or written confidentiality obligations no less protective than this Agreement.
6.4. Protection. Each Recipient will protect the confidentiality of all Confidential Information with the same precautions taken by them to protect their own confidential information and in no event with less than a reasonable degree of care.
6.5. Restrictions on Use. A Recipient shall not, directly or indirectly, reverse engineer, decompile, disassemble, copy, modify, alter, tamper with, repair, or otherwise create derivative works of any Confidential Information in any manner or medium except as permitted by these terms. Each party agrees to adhere to Applicable Laws relating to the export of technical data, and no export to any prohibited country under such laws is permitted without written authorization of the other party hereto.
6.6. Survival. All obligations of confidentiality are effective throughout the Term and for 2 years thereafter, PROVIDED that non-public consumer information or personal information exchanged shall never be divulged and the obligations hereunder shall survive termination indefinitely, unless the parties specifically agree in writing to a shorter period for disclosure of such consumer or personal information.
6.7. Promotion. Wired Builder shall have the right to identify Client as a client of Wired Builder and to use Client’s name, logo and a general, non-confidential description of the Services for Wired Builder’s promotional purposes, including on its website, portfolio, case studies and marketing materials, unless a Proposal or other written agreement signed by the parties states otherwise. Except as set out in this Section, neither party shall refer to the other or refer to having entered into this Agreement, for promotional or other reasons, without the prior written consent of the other.
6.8. Ownership and Aggregated Services Data Permission. All Confidential Information shall remain the sole property of the Discloser. Except as expressly stated herein, this Agreement does not grant or confer any right, title or interest to any Confidential Information, except that Client grants to Wired Builder a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty-free, worldwide licence to use Aggregated Services Data for Wired Builder business purposes, including for the provision of services to other Wired Builder clients, provided that the Aggregated Services Data is combined with similar data from other Wired Builder clients, is not identifiable with the Client or any of its customers or service providers, and does not contain Client Confidential Information or any personal information.
6.9. Remedies for Breach. Recipient acknowledges that a breach or threatened breach by either party under S. 5 (Property Rights) or this S. 6 may cause irreparable harm for which damages at law may not provide adequate relief. Without waiving any other right or remedy available in law or equity or under this Agreement, the non-breaching party will be entitled to seek injunctive or other equitable relief enjoining a breach or threatened breach of these Sections at the earliest possible date as may be deemed appropriate by a court of competent jurisdiction, and such remedies may be exercised without the necessity on the part of the injured party to: (i) prove that such damages would not be adequately compensated by monetary award; or (ii) post any bond or security, nor may the offending party resist an application for such relief for any reason, including on the ground that the injured party has an adequate remedy at law.
7. Audit Rights
Wired Builder or a Third Party Product supplier may, by itself or through a designate, audit Client’s usage of the Third Party Product to confirm compliance with this Agreement or the applicable licence. Wired Builder will cooperate with any reasonable advance request by Client to monitor the delivery of the Services during normal business hours to verify compliance with these terms, including by providing reasonable access to Wired Builder equipment and facilities, subject to Client compliance with Wired Builder company policies and procedures.
8. Representations and Warranties; Disclaimer
8.1. Mutual Warranty. Client and Wired Builder each represent and warrant that they:
(a) have full power and authority to enter into this Agreement; and
(b) will perform their respective obligations and otherwise conduct themselves in accordance with all Applicable Laws.
8.2. Wired Builder Service Warranty. Wired Builder represents and warrants that the Services shall be performed in a competent, diligent, professional and workmanlike manner, consistent with industry standards for such Services, and reasonably conform to any specifications, drawings, samples, descriptions and requirements specified in the Proposal(s).
8.3. Warranty Disclaimer. Wired Builder does NOT represent or warrant that the Services will guarantee any particular results, revenue, search rankings, business outcomes, or the prevention of security risks.
EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAWS, WIRED BUILDER OFFERS ITS SERVICES, DELIVERABLES, THIRD PARTY PRODUCTS AND ALL OF ITS CONFIDENTIAL INFORMATION “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT ANY WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SECURITY, INTEGRATION, PERFORMANCE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE FOR CLIENT’S BENEFIT ONLY. CLIENT’S USE OF AND RELIANCE UPON THE SERVICES OR CONFIDENTIAL INFORMATION IS AT CLIENT’S OWN RISK. WHERE THE SERVICES INCLUDE SECURITY ASSESSMENT OR TESTING, CLIENT UNDERSTANDS THAT ASSESSING SECURITY IS A COMPLEX PROCEDURE, AND WIRED BUILDER DOES NOT GUARANTEE THAT DELIVERABLES OR OTHER SERVICES WILL BE ERROR FREE OR PROVIDE A COMPLETE AND ACCURATE PICTURE OF CLIENT’S SECURITY FLAWS. CLIENT AGREES NOT TO RELY SOLELY ON THE SERVICES IN DEVELOPING ITS SECURITY STRATEGY.
8.4. Deliverables Non-Infringing. Wired Builder represents and warrants that it will take commercially reasonable steps to ensure that no Deliverables infringe or misappropriate any copyright, patent, trademark, service mark, trade name, trade secret or other proprietary right of any person.
9. Indemnities
9.1. Wired Builder Indemnity. Wired Builder shall, at its expense, indemnify and hold harmless the Client from and against any and all actions, claims, demands or Losses arising from or relating to:
(a) a Material Breach by Wired Builder, including with respect to any obligations of confidentiality; and
(b) material damage or injury (including death) to persons or property directly resulting from an intentional or negligent act or omission of Wired Builder.
9.2. Client Indemnity. Client shall, at its expense, indemnify and hold harmless Wired Builder from and against any and all actions, claims, demands or Losses arising from or relating to:
(a) a Material Breach by Client, including with respect to any obligations of confidentiality;
(b) material damage or injury (including death) to persons or property directly resulting from an intentional or negligent act or omission of Client; and
(c) any Fees and applicable taxes related to Third Party Products and accelerated payment for Fees due in connection with any termination hereunder.
9.3. Indemnity Requirements. The indemnitor shall only be responsible for the indemnification obligations set forth in this S. 9 IF the indemnitee: (i) provides the indemnitor prompt written notice of any action or claim of which it becomes aware; (ii) gives the indemnitor the right to control and direct the investigation, defense, and/or settlement of such action or claim; (iii) reasonably cooperates with the indemnitor in the defense of such a claim (at the indemnitor’s expense); and (iv) is not in Material Breach hereunder. Nothing herein shall prevent an indemnitee from engaging in the defense of any claim with its own legal representation, provided that this does not materially prejudice the indemnitor’s defense. The indemnitor may not settle any claim on behalf of the indemnitee without obtaining the indemnitee’s prior written consent; provided, however, the indemnitor shall not be required to obtain consent to settle a claim which settlement consists solely of: (i) discontinued use of infringing Deliverables and/or (ii) the payment of money for which the indemnitor has a duty to indemnify.
10. Limitation of Liability
10.1. Third Party IP Claims. Notwithstanding anything else herein, Wired Builder shall have no liability with respect to a third-party intellectual property infringement claim arising out of: (i) Client’s use of the Deliverables in combination with other products or Services not provided by Wired Builder; or (ii) Client’s failure to comply with this Agreement or licence or user terms related to any Third Party Products, including unauthorized modifications of any Third Party Product.
10.2. Affected Deliverables. Subject to the limits in S. 10.1 and notwithstanding S. 3.3 (Acceptance Procedures), if any Deliverable cannot be used or is interrupted due to a third-party intellectual property infringement claim, Wired Builder shall at its sole option and expense either:
(a) modify or replace the affected Deliverable as necessary to avoid infringement, provided that the replacement Deliverable is substantially similar in functionality;
(b) procure for the Client the right to continue using the affected Deliverable; or
(c) terminate such Deliverable or this Agreement and, upon Client’s return or certified destruction of the infringing Deliverable, Wired Builder will determine a pro-rata refund related thereto.
This S. 10.2 sets forth Wired Builder’s sole and exclusive liability and Client’s sole and exclusive remedy with respect to third-party intellectual property infringement claims.
10.3. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, REVENUES, CLIENTS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOST OR DAMAGED DATA, COST OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCURRED BY THE OTHER PARTY HOWSOEVER CAUSED OR ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE ABOVE OR IF SAME WERE REASONABLY FORESEEABLE.
FOR FURTHER CLARITY AND WITHOUT LIMITING THE FOREGOING, WIRED BUILDER WILL NOT BE LIABLE FOR FOLLOWING ANY INSTRUCTIONS OF THE CLIENT, OR ANY THIRD PARTY DIRECTING WIRED BUILDER ON THE CLIENT’S BEHALF, IRRESPECTIVE OF WHETHER OR NOT WIRED BUILDER HAS ADVISED THE CLIENT OF THE RISK ASSOCIATED WITH SUCH CLIENT OR THIRD PARTY INSTRUCTIONS. FURTHER TO SECTION 8.3, AND PARTICULARLY WITH RESPECT TO SECURITY OR INCIDENT RESPONSE SERVICES, CLIENT ACKNOWLEDGES THAT UNQUESTIONING RELIANCE UPON THE SERVICES COULD CAUSE LOSS OF SERVICE OR HAVE OTHER IMPACTS TO NETWORKS, ASSETS OR HARDWARE, AND CLIENT IS SOLELY RESPONSIBLE FOR ANY DAMAGES RELATING TO SUCH LOSS OR IMPACT.
10.4. Direct Damages Limit. Notwithstanding anything else herein, the cumulative liability of one party to the other for all claims arising from or relating to this Agreement (including without limitation any cause of action based in contract, tort or strict liability) shall be limited to proven direct damages in an amount not to exceed, in the aggregate, all Fees paid by Client over the 12 months immediately preceding any event giving rise to the first such claim, excluding Fees for Third Party Products.
10.5. Legal Limitations; Time Period for Claim. Each of the limitations set forth herein shall be enforced to the fullest extent of the law. Any laws preventing such limitations shall only apply to the extent required by Applicable Laws, and the remaining unaffected terms shall apply in full. Unless expressly prohibited by Applicable Laws, each party shall have a period of no greater than 12 months from the date a cause of action arises to bring a claim against the other party for such cause of action.
11. Insurance
Wired Builder shall maintain, at its own expense, such comprehensive general liability, professional errors and omissions, and all-risks property insurance as Wired Builder considers necessary to cover any risks it may assume in connection with the delivery of the Services. A copy of such coverage is available to Client upon request.
12. Termination
12.1. Single Proposal Termination. Termination of any particular Proposal (if there is more than one in place with Client) shall not, of itself, terminate the rest of this Agreement or any other Proposal or statement of work thereunder.
12.2. Early Termination. Due to up-front commitments that Wired Builder must make to ensure Services delivery, Client hereby acknowledges and agrees that early termination will not relieve the Client of the obligation to pay for all Services contracted for the entire Term as it existed prior to the date of termination, unless both parties’ project managers specifically agree otherwise in writing.
12.3. Either party may, upon written notice, terminate all or any part of this Agreement (including part of a particular Proposal) only if:
(a) the other party commits a Material Breach, EXCEPT that in the case of non-payment by Client, no cure period will apply; or
(b) the other party files or is the subject of a petition for bankruptcy, reorganization, winding-up, liquidation or dissolution, or a receiver or trustee is appointed for such party or its assets, or makes any assignment in favour of its creditors, or ceases to do business.
12.4. Post-Termination Obligations. Upon termination, whether with respect to the entire Agreement or only a particular Proposal, the Client shall, without further protest or demand, immediately pay all outstanding Wired Builder invoices and Fees, plus applicable taxes, incurred up to and including the date of termination, and:
(a) Subject to S. 12.2, all Fees committed to for the remainder of the Term will immediately become due and payable, plus applicable taxes. Wired Builder shall render a final invoice for such Fees and Client agrees to pay such invoice upon receipt; and
(b) subject to receipt of payment as described above, Wired Builder shall, upon request:
i. execute and deliver to Client such further assignments and transfers as may be required to transfer interests in Deliverables delivered up to the date of termination;
ii. promptly return to Client all Client-owned property, equipment or materials, including Confidential Information, except that Wired Builder may retain copies as may be required for regulatory and internal business purposes; and
iii. otherwise take all commercially reasonable steps to ensure an orderly transition to a new service provider, including providing reasonable training for Client personnel subject to the parties agreeing upon reasonable Fees for the provision of such training; and
(c) Client acknowledges and agrees that it shall remain obligated to pay for all Third Party Products acquired or contracted for by or on Client’s behalf prior to the date of termination, and Client agrees to execute and deliver such assurances and commitments to Third Party Product suppliers or licensors upon Wired Builder request, and Client hereby waives all right to pursue Wired Builder for same after the date of termination. This waiver shall survive termination of this Agreement.
13. Force Majeure
With the exception of payment, neither party shall be responsible for any failure or delay in performance due to any act of God or the public enemy, war, riot, embargo, fire, explosion, sabotage, flood, strike, lockout or other labour disturbance, governmental, regulatory or judicial action, enactment, regulation, order or decree, or other circumstance (other than lack of funds) beyond such party’s control, which could not have been prevented by reasonable precautions and cannot reasonably be circumvented by that party (a “Force Majeure Event”). All delivery dates shall be extended to the extent of any Force Majeure Event and mutual agreement of the parties.
14. Non-Solicitation
During the Term and for a period of one (1) year after its completion, neither party will, either directly or indirectly, solicit for employment any person employed by the other party or any of its Affiliates. For the avoidance of doubt, this restriction shall not prevent either party from hiring based on a response to a party’s own advertising in good faith to the general public of a position or vacancy to which an employee or worker of either party responds, provided that no such advertisement shall be intended to specifically target either party’s personnel.
15. General
15.1. Independent Contractors. Wired Builder and Client are independent contractors. Neither party has authority to assume or to create any obligation or responsibility on behalf of the other party, and nothing herein shall be construed as implying a joint venture, agency, partnership, employment or other relationship between the parties, other than independent contractors.
15.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of British Columbia and of Canada applicable therein, without regard to its conflict of laws rules. The parties irrevocably attorn to the jurisdiction of the Courts of British Columbia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any Services or Deliverables. Due to the high costs and time involved in commercial litigation before a jury, the parties waive all right to a jury trial with respect to any issues in any action or proceeding arising out of or relating to this Agreement or the Services.
15.3. Assignment. This Agreement will be binding on and enure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign any of its rights hereunder, except as permitted herein, without the prior written consent of the other, which will not be unreasonably withheld; provided, however, either party may transfer this Agreement to an Affiliate or in connection with a merger or sale of all (or substantially all) of the stock or other ownership units of such party.
15.4. Entire Agreement. Except for an NDA, this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, oral or written. There are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as set forth herein.
15.5. Conflicting Terms. Except as otherwise specifically agreed to therein, all Proposal(s) will be governed by this Agreement. In the event of inconsistency between this Agreement and a particular Proposal, this Agreement shall govern except where a change to this Agreement is specifically contemplated in such Proposal. Any conflicts between one Proposal and another shall be resolved in favour of the document signed on the latest date. Any conflict between an NDA and these terms shall be governed by the NDA to the extent of such conflict only.
15.6. Amendments. No amendment or waiver hereof shall be binding unless executed in writing by both parties. No waiver of any term hereof shall constitute a waiver of any other term (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
15.7. Unenforceable Terms. Any term hereof which is held illegal or unenforceable in any jurisdiction shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining terms. Any such illegal or unenforceable term shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. Each term hereof that provides for a limitation of liability or remedies, disclaimer of warranties, indemnification of a party, or exclusion of damages or other remedies is severable and independent of any other term and is intended to be enforced as such.
15.8. Headings. All section headings, subsections and attachments hereto are for convenient reference only and shall not affect construction or interpretation hereof. Words importing the singular include the plural and vice versa, and words importing gender include all genders.
15.9. Notices. Except as otherwise specified herein, any notice or demand required or permitted to be given to a party shall be in writing and shall be delivered by email or other similar electronic communication or sent by prepaid courier to the intended recipient at its address set out on page one above or such other address as such recipient may from time to time specify by notice in accordance with the foregoing. Any notice or demand delivered in accordance with the foregoing shall be deemed received on the first business day following the date of its transmission by electronic communication or on the day of delivery if couriered.
15.10. Further Acts. The parties shall execute and deliver such further and other documents and instruments and shall do such further and other acts and things as may be necessary to give effect to the terms hereof.
15.11. Survival. The following terms shall survive the expiry or termination for any reason (and whether or not for cause) of this Agreement: S. 3.3 (Acceptance Procedures), 5 (Property Rights), 6 (Confidentiality), 7 (Audit Rights), 9 (Indemnities), 10 (Limitation of Liability), 12.4 (Post-Termination Obligations), 14 (Non-Solicitation), 15.2 (Governing Law), 15.5 (Conflicting Terms), 15.7 (Unenforceable Terms), 15.10 (Further Acts), and 15.11 (Survival) and Schedule A (Third Party Products).
15.12. Language. The language of this Agreement is English and all invoices and other documents given under this Agreement must be in English to be effective. No translation, if any, of this Agreement or any notice will be of any effect in the interpretation of this Agreement or in determining the intent of the parties. The parties have expressly agreed that all invoices and related documents be drafted in English. The following shall apply solely for Agreements which are under French Canadian jurisdiction: C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Schedule A: Third Party Products
The parties agree that the supply, licence or use of any Third Party Products in connection with the Services is subject to the following additional terms and conditions.
A 1. Third Party Products: Specific Terms. Client agrees to abide by all terms and conditions of any applicable end-user licence agreement or terms of use for all Third Party Products supplied, licensed or utilized hereunder, and to maintain such agreements in good standing, including by way of payment of all fees due thereunder. Client agrees, without protest, to do all things reasonably necessary to execute all required licences or user terms and to make all other commitments required to secure access or use of Third Party Products recommended by Wired Builder to deliver the Services, and Client agrees to meet or exceed all specifications required by any third party for use of any Third Party Products.
A 2. Licence Restrictions, Pre-Payment and Overages. Third Party Product licences or user terms may include limitations on term, the number of users, targets, seats, licences and/or types of modules licensed. Where Third Party Product terms are either perpetual or subscription in nature, Client agrees to pay for same as invoiced, including by pre-payment where required by the third party. If Client exceeds licence or user restrictions, Client agrees to pay all overage fees and other charges or purchase an upgraded licence to allow for all actual or additional usage as recommended by Wired Builder.
A 3. Restrictions on Use. If applicable, Client shall not directly or indirectly: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Third Party Products; (ii) reproduce, modify, translate or create derivative works of all or any part of the Third Party Products; (iii) remove, alter or obscure any proprietary notice, labels, or marks on the Third Party Products; (iv) without prior written consent of the third party, use the Third Party Products in a service bureau, application service provider or similar capacity; (v) use the Third Party Products in order to create competitive analysis or a competitive product or service; (vi) copy any ideas, features, functions or graphics in the Third Party Products; or (vii) use the Third Party Products to manage or gather information not owned or hosted by Client, or for which Client does not have authorization to possess.
A 4. Intellectual Property in Third Party Products. This Agreement does not transfer to Client any title to or any ownership right or interest in any Third Party Products.
A 5. Third Party Products Changes. Third parties may reserve the right to withdraw features from future versions of Third Party Products, and Wired Builder will not be held responsible for any associated reduction in functionality or results, even if such feature changes require the Client to seek out a different Third Party Product and incur additional fees to achieve functionality or results required for effective delivery of the Services.
A 6. Information Supply to Third Parties. Client agrees to provide all information necessary for the delivery of the Services and, where necessary, to third parties in connection with the use of Third Party Products, which may include lawful audits of Wired Builder use of Third Party Products, behavioral attributes such as whether certain features in the Third Party Products are utilized, or other relevant information (“Technical Data”). Wherever possible, Wired Builder agrees to only disclose Technical Data which has been properly anonymized and cannot be attributed to an individual user or administrator of the Client. Wired Builder may use Technical Data for reasonable business purposes, including product support, licence validation and research and development.
A 7. Business Purpose Use. Client warrants that it will use Third Party Products solely for Client’s own internal business purposes.
A 8. Support Services. Wired Builder will not be responsible for the support services provided by third parties in connection with the Third Party Products.
A 9. Corrupt Practices and Trade Controls Compliance. Client acknowledges and agrees that the use of certain Third Party Products may require compliance with these additional terms and, if applicable:
(i) Anti-Bribery. Client agrees that Applicable Laws to which it must comply will also include, without limitation, the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; the U.S. Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1 et seq.; 18 U.S.C. § 201; the Travel Act, 18 U.S.C. § 1952; the Bank Secrecy Act of 1970, P.L. 91-508, 31 U.S.C. § 5311 et seq.; the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34; and the UK Bribery Act of 2010. If Client violates this S. A9, Wired Builder may terminate this Agreement immediately.
(ii) Trade Controls. Client also agrees that Applicable Laws to which it must comply will include U.S. export laws (including the International Traffic in Arms Regulation (ITAR), 22 CFR § 120.1 et seq., and the Export Administration Regulation (EAR), 15 CFR § 730 et seq.) and the anti-boycott rules implemented by the U.S. Departments of Commerce and Treasury. Client further agrees to comply with trade and economic sanctions, rules, and regulations of the United States, European Union, EU member states, United Kingdom and other applicable government authorities, and shall not engage in prohibited trade to persons or entities who are the subject of an active sanction, embargo, or executive order. Client hereby acknowledges and confirms that it: (i) is not included on, owned or controlled by an individual or entity included on, or acting on behalf of an individual or entity included on, any of the restricted party lists maintained by the U.S. Government (collectively, “Restricted Parties”); or (ii) will not permit the use of Third Party Products for nuclear end-uses, rocket systems, unmanned air vehicles, chemical or biological weapons, maritime nuclear propulsion, weapons of mass destruction or other restricted end-uses except to the extent consistent with trade control laws.
Version: Wired Builder MSA (Canada), June 2026