Master Purchase & Services Agreement
This agreement ("Agreement") is entered into, to be effective as of ("Contract Date") by and between ("Customer Name") located at ("Address") and Hutch Systems Inc. located at 2200 W Railway Street, Abbotsford, BC. V2S-2E2 Canada , in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this Master Purchase and Services Agreement.
"Alert" means the service whereby alerts are directly sent to a Customer"s designated mobile phone or email.
“Approved Order Form” (or “AOF”) means an ordering document specifying Services to be provided or the Product to be purchased hereunder that is entered into between the Customer and HUTCH, including any addenda and supplements thereto.
"Authorized User" means an individual who is authorized by the Customer to use a Service, for whom Customer has ordered the Service, and to whom Customer (or HUTCH at Customer"s request) has supplied a user identification and password.
"Coverage Area" means the United States of America and Canada (and additional countries if detailed in the Approved Order Form).
"Confidential Information" means information disclosed to or otherwise obtained by a Party or its Representatives during the term of the Agreement (whether or not marked "confidential" or "proprietary") relating in any way directly or indirectly to the business of the other party and its affiliates, but excludes information that: (i) was publicly available before disclosure to the receiving party; (ii) enters the public domain except as the result of breach by the receiving party;(iii) was already in the receiving party"s possession without an obligation of confidence; or (iv) is disclosed to the receiving party by a third party having a lawful right to do so.
"Covenantor" means any individual or other entity which has signed this Agreement as a covenantor.
"Customer" means an individual or company that enters into an Agreement for access to and use of Software and Services provided by HUTCH
"Customer Data" means electronic data and information submitted by the Customer or collected and processed for the Customer using the Services.
"Documentation" means HUTCH’s documentation, user guides, and help and training materials, as updated from time to time by HUTCH in its sole discretion, and accessible via hutchsystems.com or login to applicable Services.
"Enhancements or Updates" means changes or improvements to the software such as bug fixes, patches, enhanced functions, missing plug-ins or newer versions
"Intellectual Property" means any design rights (whether registerable or otherwise), trademarks, patents, applications for any of the foregoing, copyright, and other similar rights or obligations whether registerable or not in any country, including without limitation any such rights relating to the Technology.
"Overage Charges" means any and all extra data charges incurred by HUTCH resulting from the Customer"s data usage above the levels allowed for a subscribed product or service.
“Product” / “Products” (or “HUTCH Telematics Device”) means the mobile tracking and communications device with installed software provided by HUTCH to the Customer for installation on Vehicles or trailers to enable the provision of Services.
"Provisioning" means activation of a HUTCH Telematics Device to receive and transmit data through a Wireless Service Provider.
"RMA" means Returned Materials Authorization
"Services" means the provision to the Customer of the Product, hosted software, wireless data, and services ordered by the Customer under an AOF and made available by HUTCH including associated offline components described in the Documentation.
“Subscription Fee” means the monthly fee set out in the applicable Approved Order Form.
"SIM card" means the Subscriber Identity Module card inserted into a HUTCH Telematics Device to enable communications
“Technology” means (i) trade secrets and technology necessary for the operation of the Product and Services developed by HUTCH (ii) proprietary electronic architecture and other nonliteral elements of the Product and Services developed by HUTCH, and (iii) any training, reference or service manuals and updates thereto.
"Vehicle" means a vehicle, asset or trailer owned or controlled by the Customer and designated in the Equipment Installation Schedule (EIS) for installation with a HUTCH Telematics Device.
2. Intellectual Property Rights
All rights, interest in and title to the Product and Services, including any content therein and all Intellectual Property rights belong exclusively to HUTCH, its affiliates or licensors. No rights are granted to the Customer hereunder other than as expressly set forth in this Agreement.
The Customer has a revocable, nonexclusive license to use the Technology solely in connection with the use of the Product and Services on the terms and conditions contained herein.
Certain names, graphics, logos, icons, designs, words, titles and phrases on the Product constitute trade-marks (whether registered or unregistered), trade names or other Intellectual Property of HUTCH (the “IP Rights”) or third parties (the “Third Party IP”). HUTCH at all times remains the sole owner of the IP Rights.
The display of the IP Rights and the Third Party IP on the Product does not convey or create any licence or other rights in any of the IP Rights or the Third Party IP, including:
- Any ownership rights in any of the IP rights or the Third Party IP:
- Any right to use any of the IP Rights or the Third Party IP for commercial purposes including sale, resale, licence or sublicence; or
- Any right to reproduce, distribute, post, disseminate, publish, broadcast or transfer any of the IP Rights or the Third Party IP.
Use of any of the IP Rights or the Third Party IP without the express prior written consent of HUTCH or the applicable third parties, as the case may be, is strictly prohibited. Without limiting the foregoing, the Customer agrees:
- Not to add or apply any attachments or accessories to the Product or to modify or alter the Product in any way except in strict compliance with specifications given in writing by HUTCH from time to time or otherwise with the prior written consent of HUTCH (which consent may be arbitrarily withheld);
- To follow all policies developed from time to time by HUTCH relating to the Product and the Intellectual Property, including complying with all instructions issued by HUTCH relating to the form and manner in which the Intellectual Property may be used and to discontinue immediately upon notice from HUTCH any practice relating to the use of the Intellectual Property which in HUTCH’s sole opinion would or might adversely affect the rights or interests of HUTCH or any associated entity;
- To refrain from any conduct harmful or potentially harmful to HUTCH’s name (including without limitation the “Hutch Systems” name), reputation or Intellectual Property;
- Not to permit any other entity to use in any manner any of the Intellectual Property without the prior written consent of HUTCH (which may be arbitrarily withheld);
- Not to contest the title of HUTCH or any associated entity to any Intellectual Property used in connection with the Products or Services, not to affect any registrations thereof, and not to take any action to the detriment of HUTCH’s interests therein; and
- Not to effect or permit the removal, renewal or alteration of any trade names or marks, patents, notices, name plates or serial numbers affixed to any of the Products.
The Customer expressly acknowledges and agrees that HUTCH is the sole, exclusive legal and beneficial owner, and will remain at all times (including without limitation after termination or expiration of this Agreement for any reason) the sole and exclusive legal and beneficial owner, of all Intellectual Property in and to the Product and Services and the designs and specifications for the Product and all improvements, alterations, modifications and other changes whatsoever thereto, whether made by or on behalf of HUTCH, the Customer or third parties, and the Customer acknowledges and agrees that the Customer will not have any right or interest in or to any of such Intellectual Property.
3. Use And Restrictions
The Customer agrees to only use the Products and the IP Rights in strict accordance with this Agreement, follow all reasonable policies developed from time to time by HUTCH relating thereto, and otherwise refrain from conduct harmful or potentially harmful to the Product, any of the IP Rights, or HUTCH’s name, reputation or business.
The Customer will not assist, permit or encourage any other person or entity to:
- Decompile, disassemble, create derivative works, or otherwise reverse engineer the Product;
- Modify, rent, lease, loan, sell, distribute, sub-licence or create derivative works or businesses based on the Product, in whole or in part;
- Do anything or omit to do anything that might impair, jeopardize, violate or infringe any of the IP Rights or HUTCH’s rights relating to the Product or any of the IP Rights;
- Oppose, contest or otherwise challenge the validity of any of the IP Rights or HUTCH’s rights relating to the Product or any of the IP Rights; or
- Claim, use, or apply to register, record or file any trade-mark, trade name, copyright or design that is identical or confusingly similar to any of the IP Rights including, without limitation, any trade-marks or patents included in the IP Rights, or that is derived from or based on any of the IP Rights;
- Engage in any systematic extraction of data or data fields, including without limitation e mail addresses;
- Permit a third party or other non-registered user to use the Customer’s password and/or user name to access the Customer’s Account or otherwise obtain access to the Product;
- use the Product in any way that contravenes applicable federal or provincial laws, including without limitation privacy laws; or
- use the Product, including its hardware and software, in any way inconsistent with the Services or for any purpose other than accessing the Services;
The Customer agrees to only use the Product platform for a single company or other entity (being the company or entity which is the party to the Agreement), and expressly acknowledge that the use of a single Product platform for more than one company/entity will result in cross-contamination of the Product information for which HUTCH will not be responsible.
Purchase of Products: the Customer agrees to purchase, and HUTCH agrees to sell, any Product hardware listed in the Approved Order Form at the prices and currency stated therein.
Product Payment Terms. All hardware listed in the AOF must be paid in full at the time of order. Invoices are due on receipt and in the event of a delay in payment a late payment fee of the lesser of interest at the rate of 1.5% per month (18 % per annum) on the outstanding balance shall be assessed against such amounts due and not paid within 30 days of invoicing until all such amounts have been paid in full. If any 2 such payments during the term of this Agreement are not made as and when due, HUTCH retains the right to cancel the Services immediately without notice to the Customer.
Shipping. Products shall be shipped to the Customer’s shipping address stated on this Agreement. Title shall pass to the Customer upon shipment of the Products to the Customer and full payment has been received by HUTCH. Risk shall pass to the Customer upon delivery of the Products to the Customer. The Customer shall be responsible for all shipping and delivery costs.
Additional Orders. Additional orders for equipment, devices and hardware will be governed by this Master Purchase & Services Agreement.
Limited Product Warranty. All hardware is warranted by HUTCH to the Customer as the original purchaser for one year from the date of shipment and to conform substantially to the manufacturer’s published specifications. HUTCH will replace any defective Product with the same or substantially similar product in all material respects to the original by shipping a replacement to the Customer. The Customer is responsible for coordinating for hardware installation including working with a HUTCH representative, a HUTCH certified installer or by self-installing the hardware. To exchange any product, the Customer must obtain an RMA (Returned Materials Authorization) number from HUTCH’s Customer Service. HUTCH will not accept returns that do not have an RMA number written clearly on the return packaging. The Customer will be invoiced for the replacement Product if the original product is not returned within 60 days. The Customer should be sure to have original Product securely packaged and insured.
The foregoing warranties will not apply if any part or all of Product (i) has been damaged through misuse, abuse, or use by the Customer in any manner for which they are not designed, (ii) is not installed by a HUTCH representative, a certified installer representing HUTCH, or a HUTCH trained installer employed by the Customer, or (iii) is used by any other party other than the Customer. In any of these cases, HUTCH will keep the non-warranted part 60 days after receipt and such part will be available for Customer inspection.
Hutch hereby expressly disclaims all other warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose. Hutch will not be responsible for any damages to persons or property, including without limitation damages caused by vehicular accident or fire, and shall not be liable whatsoever for incidental, consequential, special or punitive damages. In the event that the warranty limitations are held to be invalid or ineffective, hutch's liability shall not exceed the purchase price paid for the allegedly defective product.
The warranty contained in this clause 4(e) will be void if the customer does not follow the procedure set out herein and hutch will not reimburse the customer for any third-party repair costs incurred by the customer in respect of the product.
Installation Options. The Products identified in this Agreement can be installed at the Customer"s premises either by a HUTCH representative, by a HUTCH Authorized Installer, or by Customer representative who has been trained and certified by HUTCH.
- Installation Services by Authorized Installer. Upon request by the Customer, HUTCH will supply the Customer with a list of Certified Installation Facilities that are authorized to install the products.
- Installation Training by HUTCH. Upon request by the Customer, HUTCH will provide installation training to the Customer’s representatives on the Customer’s premises for the products on the terms and conditions contained herein. HUTCH shall provide training, including an installation jumpstart kit, and the Customer shall supply one classroom equipped with a projector or large screen TV, and a sufficient number of vehicle types for which the Products are to be used. The Customer shall schedule personnel to be trained for a minimum of four consecutive hours of uninterrupted time. The Customer shall pay HUTCH’s travel expenses and a per diem rate for each day HUTCH’s installer stays to train or install the Products for the Customer’s failure to comply with this obligation. HUTCH does not warranty any installation by a Customer Certified Installer.
- The Customer will be offered implementation and training dates once the purchased product has been shipped. Implementation services cancelled or rescheduled by the Customer less than twenty-one (21) calendar days of the scheduled engagement will be billed at 50% of original estimate price plus additional travel expense if incurred.
Training. The Customer and all its employees, contractors and agents who use the Products are responsible for attending all training sessions offered by HUTCH to the Customer. The Customer, including without limitation all its employees and contractors who use the Products, must read and follow the instructions given in the user manual provided by HUTCH (as may be amended from time to time), abide by the training provided during such training sessions, or such other training and/or direction as is otherwise provided from time to time by HUTCH, including training provided by HUTCH via its website or through other means of HUTCH’s choosing. The Customer is responsible for ensuring that all its users are trained according to HUTCH’s guidelines, and acknowledges that all such training is provided “as is” without representation or warranty.
Installation Warranty. HUTCH warrants to the Customer for a period of one year from completion of any installation services provided by HUTCH or an Authorized Installer of HUTCH that such work has been performed according to HUTCH Standards of Practice (the “Installation Warranty”). This warranty will not apply if a Product has been damaged, misapplied or misused by the Customer. HUTCH will within the warranty period upon proof of authorized installation, reinstall any Product which has not been installed according to HUTCH Standards of Practice or replace any Product if faulty installation is a cause of the Product’s failure at no charge. These are the Customer’s sole remedies for breach of the installation warranty. To obtain warranty service, the Customer must notify HUTCH within the warranty period and provide proof of authorized installation services. This warranty does not extend to Products installed or repaired in any way by anyone other than HUTCH or its Authorized Installer and shall not apply to Products installed or repaired by a HUTCH trained Customer representative.
Hutch hereby expressly disclaims all other warranties, express or implied, including any implied warranty of merchantability and fitness for a particular purpose. Hutch will not be liable for any direct, indirect, special, incidental, consequential or other damages arising out of the installation services. In no event shall hutch’s liability exceed the price paid for installation services. Request by the customer for installation services will be deemed to be consent to make certain minor modifications to customer vehicles necessary for product installation.
Safety Stock. The Customer may purchase additional equipment as Safety Stock. This enables the Customer to add or maintain service with minimal downtime. While Product is recognized as Safety Stock, no monthly service fees apply. When the Safety Stock is ready to be installed, the Customer must contact HUTCH to activate Product for use and it will be billed as an active unit. If Safety Stock is used as a warranty replacement, replaced product must be returned to HUTCH.
Delivery Schedule. The Customer agrees pricing for contracted units is based on the delivery schedule, which may be changed with thirty days notice. If there is no delivery schedule noted, then the Customer agrees to take delivery of all Products subsequent to Purchase Agreement execution. Service fees apply after 7 days of shipping or activation date whichever is earlier.
Customer temporary removal of devices. SIM card deactivation / activation may be subject to service charge if device SIM card is still active but services have been temporarily suspended.In the event the Customer requests that the services for a device be temporarily suspended then the Customer may choose one of the following 2 options:
Option 1 - Keep the SIM card active, which case the following will apply:
- Subscription Fees will be waived for the period of temporary suspension;
- Minimum monthly fee of $ 7 would apply
- No reactivation fee would apply
- Maximum suspension cannot exceed a total of 90 days during the term of this Agreement;
- Contract term will be extended by number of days of requested suspension.
Option 2 - Disable SIM card, in which case the following will apply:
- Subscription Fees will be waived for the period of temporary suspension;
- Minimum monthly fee of $ 7 would not be applied
- Reactivation fee of $ 50 will apply
- Maximum suspension cannot exceed 90 days during the term of this Agreement.; and
- Contract term will be extended by number of days of requested suspension.
Transfer of SIM Card. Provided the Customer is not in default under this Agreement and provides prior written notice to HUTCH, the Customer may transfer a SIM card from one HUTCH device to another HUTCH device.
Term of Agreement. This Agreement commences on the date set forth on the 1st page hereof and continues until all subscriptions to Services hereunder pursuant to Approved Order Forms have expired or have been terminated in accordance with the terms of this Agreement and the applicable Approved Order Form(s) (the “Term”).
Term of Purchased Subscriptions. The term of each subscription for the Services shall be as specified in the applicable Approved Order Form. Except as otherwise specified in an Approved Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or three years (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
Price increase. The per-unit pricing during any automatic renewal term will be the same as that during the immediate prior term unless HUTCH has given the Customer a written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter
Termination. In the event this Agreement is terminated before the end of the applicable subscription period set out in the Approved Order Form(s), the Customer will forthwith pay HUTCH Subscription Fees, together with any and all applicable data charges owing to the applicable wireless provider, for the remaining balance of such subscription period.
Customer’s Data Portability and Deletion. Upon request by the Customer made within 30 days after the effective date of termination or expiration of this Agreement, HUTCH will make the Customer’s Data available to the Customer for export or download. After that 30-day period, HUTCH will have no obligation to maintain or provide the Customer’s Data, and will thereafter delete or destroy all copies of the Customer’s Data in HUTCH's systems or otherwise in HUTCH's possession or control, unless legally prohibited. In the event that government data storage requirement requires that data is stored beyond the 30 day period, then HUTCH will store the data if the Customer agrees to pay the applicable Subscription Fee for the period of such storage.
Refund or Payment upon Termination. If this Agreement is terminated by the Customer in accordance with Section 4(d) (Termination), HUTCH will refund the Customer any prepaid fees covering the remainder of the term of all Approved Order Forms after the effective date of termination. If this Agreement is terminated by HUTCH in accordance with Section 4(d), the Customer will pay any unpaid fees covering the remainder of the term of all Approved Order Forms. In no event will termination relieve the Customer of its obligation to pay any fees payable to HUTCH for the period prior to the effective date of termination.
Credit History. . The Customer hereby authorizes HUTCH to obtain information about the Customer’s credit history and agrees that HUTCH may provide information to others about the Customer’s credit history, and without limiting the foregoing the Customer hereby consents to HUTCH obtaining from any credit reporting agency or from any person such information as HUTCH may require regarding the Customer’s credit history and hereby consents to the disclosure by HUTCH of information concerning the Customer to any credit grantor with whom the Customer may have financial relations or to any credit reporting agency.
Services, Service Areas . The Customer shall be provided Services listed in HUTCH’s Approved Order Form. Services shall be available to the Customer when all related systems are properly configured and operated within HUTCH’s coverage areas. HUTCH does not guarantee availability of Services in areas outside or within its coverage areas.
Operation based data service charges. The Customer shall provide the area of their operations to HUTCH before signing this Agreement. HUTCH may incur additional charges when the Customer goes outside their provided operational area or uses the Product for any purpose other than the Services. Any additional charges in terms of data usage will be the sole responsibility of the Customer and will be billed to the Customer at the time of invoicing.
Service Payment Terms. HUTCH shall charge the Customer monthly Subscription Fees in accordance with the attached HUTCH’s Approved Order Form. Without limiting anything contained in this Agreement or the Approved Order Form, the Customer agrees as follows:
- Subscription Fees and other recurring fees shall be invoiced quarterly in advance of Services.
- Pro-rated Subscription Fees and usage based charges will be billed in arrears.
- Invoices are due and payable upon receipt.
- Subscription Fees commence upon the earlier of installation or 7 days from Product shipment.
- All invoices are billed electronically, by either electronic mail or facsimile.
- No credit or carryover shall be given for data paid for but not used in a billing cycle.
- A late payment fee of the lesser of 1.5% per month (18 % per annum) or a fraction thereof or the highest amount permitted by law shall be assessed against amounts due and not paid within 30 days of the applicable invoice.
- HUTCH retains the right to cancel the Services immediately without notice to the Customer if 2 or more payments of Subscription Fees are not paid as and when due.
Suspension of Services for Non-Payment. Without limiting anything else contained herein, HUTCH shall have the right to suspend Services for failure to pay any invoice when due. The Customer shall continue to be charged Subscription Fees during such suspension, together with a fee of $10.00 for each HUTCH Telematics Device provided to the Customer per month (the “Default Fee”) until all arrears are paid in full. If Services are resumed following payment of arrears, the Customer will be billed and must pay on the next monthly billing cycle (i) a re-activation fee of $50.00 for each device re-activated; and (ii) the aggregate amount Default Fees payable hereunder. HUTCH will not be responsible for damages, including loss of income or profit, or fines levied due to the suspension of Services.
Grant of Security Interest. As general continuing security for the due payment of all amounts payable by the Customer under this Agreement, the Customer hereby mortgages and charges to and in favour of HUTCH, and grants to HUTCH a security interest in all Products and hardware and other goods associated with the Services provided, together with any and all proceeds arising therefrom (collectively, the “Collateral”). The Customer further agrees to, from time to time immediately upon the request of HUTCH, take such action (including without limitation the signing of further documents) as HUTCH may require in connection with the Collateral and/or as HUTCH may consider necessary to give effect to the security interest granted hereby. The Customer acknowledges receipt of a copy of this Agreement containing this security agreement and waives all rights to receive from HUTCH a copy of any financing statement, financing change statement, or verification statement filed at any time at the B.C. Personal Property Registry in respect of this Agreement. In the event of a default in the payment of any sums due to HUTCH, the Customer acknowledges that HUTCH may exercise any and all remedies afforded to secured parties under Part 5 of the Personal Property Security Act (British Columbia).
Additional Orders For greater certainty, the parties acknowledge and agree that additional orders for Products and/or Services pursuant to each Approved Order Form submitted by the Customer will be governed by this Master Purchase & Services Agreement.
Service Outages. HUTCH shall not be liable for service outages caused by (i) any atmospheric or natural causes; (ii) system capacity limitations, equipment repairs and similar activities not within the complete control of HUTCH,(iii) a third party service provider’s inability to retain and maintain suitable facilities, license or rights for HUTCH’s coverage areas; (iv) failures of, changes, modifications, or alterations to the Customer’s network facilities, equipment or software, (v) any accident involving a vehicle of the Customer, or (vi) any other act or omission not caused by HUTCH or force majeure beyond the reasonable control of HUTCH. Liability for Service outages over 24 hours caused solely by HUTCH may be in the form of a credit allowance for Services billed during such outage. No credit allowances will be given for accumulating periods of non-continuous Service outages. The liability for Service outages for whatever cause shall be limited to an amount to be paid by the Customer under this Agreement for Services during the period such claim arose.
“As is” and “As Available”. The Product and Services are provided on an “as is”, “as available” basis, with all faults, and without representation or warranty of any kind. Without limiting the foregoing, HUTCH will not be liable for any inaccuracy or failure of the Product or Services with respect to speed monitoring or driving time monitoring functions which may be part of the Services, and the Customer will remain solely responsible for complying with all applicable laws relating to the operation of its vehicles and the performance of its drivers.
Tax Indemnity. Without limiting anything else contained herein, the Customer acknowledges that all Subscription Fees and other amounts payable by the Customer hereunder are exclusive of applicable taxes, and that the Customer will be solely responsible for the payment of any applicable PST, GST or other taxes or levies. In the event HUTCH is audited or reassessed for failure to collect any applicable tax from the Customer, the Customer shall forthwith pay the amount of such tax to HUTCH upon demand and will indemnify and save harmless HUTCH for the amount of such tax together with any penalties or other amounts payable by HUTCH in connection with any audit or reassessment by an applicable taxation authority.
Monitoring and Access. The Customer acknowledges and agrees that HUTCH will have the right to record, monitor and log all phone calls and activities associated with the Customer’s use of the Product and Services. The Customer shall provide HUTCH with unfettered access to the Products forthwith upon request.
Service warranty. except as expressly provided for herein, hutch makes no warranties or representations, either express or implied, concerning the services or products, and specifically disclaims all implied warranties including without limitation, warranties of merchantability or fitness for a particular purpose or use to the extent permissible by applicable law. Hutch shall not be liable for any damages to persons or property and shall not be liable whatsoever for incidental, consequential, special or punitive damages as a result of the customer’s use of the services. In the event that the warranty limitations are held to be invalid or ineffective, hutch’s liability shall not exceed the price paid for the allegedly defective services.
The customer agrees to indemnify and save harmless hutch from and against any and all losses, damages, injuries, liabilities, obligations and costs (including without limitation legal costs on a solicitor-and-client basis) that may be incurred by or claimed against hutch as a result of or arising out of any and all uses of the intellectual property, the product or the services by the customer, including uses contrary to this agreement and any and all breaches by the customer of this agreement, or as a result of or arising out of any accident in which a customer’s vehicle is involved in any manner. The customer further acknowledges that a breach by the customer of this agreement may cause hutch irreparable harm for which damages would not be an adequate remedy and, therefore, agrees that, in addition to all other rights and remedies, hutch will be entitled to injunctive relief against a continuing or further breach by the customer without the necessity of proof of actual damages. The provisions hereof will survive the termination of the customer’s access to the product and/or the services.
7. Limitation Of Liability
The customer expressly understands and agrees that in no event will hutch, any of its licensors, licensees, affiliates or subsidiaries or each of their respective directors, officers, employees and agents have any responsibility or liability in connection with the product or the services for any loss or damages whatsoever, whether based on contract, negligence or other legal basis, including without limitation, direct, indirect, special, punitive, exemplary or consequential damages or other damages arising from or in connection with the use of or access to the product, the services or failure of the product (including, without limitation, any damages suffered as a result of omissions or inaccuracies in the product). These limitations apply even if hutch had been advised of the possibility of such damage or loss or if such loss or damage was foreseeable.
The Customer expressly acknowledges that HUTCH is making the Product and Services available in reliance on the limitations and exclusions of liability and the disclaimers set forth herein and that the same form an essential basis of the contract between the Customer and HUTCH. The Customer expressly agrees that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination or suspension of the Customer’s use of, or access to, the Product and Services.
8. Covenantor Provisions
If a Covenantor has signed this Agreement, the following provisions of this Article 8 apply.
The Covenantor hereby covenants and agrees with HUTCH as follows:
- To make or cause to be made the due and punctual payment of all amounts payable by the Customer under this Agreement;
- To effect prompt and complete performance and observance of all obligations and agreements of the Customer under in this Agreement; and
- To indemnify and save harmless HUTCH from and against all losses, damages, liabilities and costs (including without limitation legal costs on a solicitor-and-client basis) suffered or incurred by HUTCH in any way arising out of any and all defaults by the Customer under this Agreement. In the event of a default by the Customer under this Agreement, the Covenantor hereby waives any and all rights to require HUTCH to do any of the following:
- To proceed against the Customer or pursue any right or remedy in respect of this Agreement;
- To proceed against or exhaust any security of the Customer held by HUTCH; or
- To pursue any other remedy whatsoever in HUTCH’s power or otherwise available to HUTCH.
HUTCH will be entitled to enforce all of the Covenantor’s obligations under this Agreement regardless of the acceptance of additional security from the Customer and regardless of the release or discharge of the Customer by HUTCH or by others or by operation of law.
The Covenantor hereby waives all notices to which the Customer may be entitled, including without limitation notice of defaults by the Customer under this Agreement.
The liability of the Covenantor under this Agreement will be absolute and unconditional irrespective of any circumstances that might otherwise constitute defences available to, or discharges of, the Covenantor, the Customer or any others in respect of the obligations of the Customer or the Covenantor under this Agreement, and, without limiting the generality of the foregoing, the liability of the Covenantor under this Agreement will not be released or affected by the release or discharge of the Customer in any receivership, bankruptcy, winding-up or other creditors' proceedings, or the rejection, surrender, disaffirmation or disclaimer of this Agreement by any party hereto or any third party or in any action or proceeding, and will continue in respect of the periods prior thereto and thereafter.
The Covenantor will, without limiting the generality of the other provisions hereof, be bound by this Agreement in the same manner as though the Covenantor was the Customer named in this Agreement.
If more than one Covenantor has executed this Agreement, all obligations of such Covenantors hereunder will be deemed to be joint and several.
9. Governing Law; Consent To Jurisdiction
This Agreement and the rights of the parties hereunder will be governed by, interpreted, and enforced in accordance with the laws of the Province of British Columbia, Canada, without regard to its rules relating to conflicts of laws. Each party to this Agreement hereby submits to the jurisdiction and venue of the British Columbia Courts, for the purposes of all legal proceedings arising out of or relating to this Agreement. Each party hereby irrevocably waives any objection it may now or hereafter have as to the jurisdiction or venue of any such suit, action or proceeding brought in the British Columbia Courts or that such court is an inconvenient forum.
This agreement is confidential. Neither party shall disclose this agreement to another party without the express written consent of the other party. Confidentiality is in effect for the term of the agreement, renewals, and for two (2) years after the later of the termination of this agreement or any renewal.
11. Numbers; Security; Privacy; Fraud
Assignment. This Agreement and any obligation or interest herein may not be assigned or transferred by the Customer without the express written consent of HUTCH, which consent may be arbitrarily withheld. HUTCH may assign all or part of its interest in this Agreement and any or all rights and obligations under this Agreement without notice or the consent of the Customer.
Arbitration. Any disagreement or dispute between HUTCH and the Customer arising with respect to the interpretation, application or administration of this Agreement, the performance of either party under this Agreement, or any other matters arising pursuant to this Agreement, shall be referred to a single arbitrator pursuant to the Arbitration Act (British Columbia), and the determination of such arbitrator will be final and binding upon the parties hereto. This Clause 12(b) will be deemed to be a submission to arbitration in accordance with the Arbitration Act.
Further Assurances. Each Party agrees that it shall do or cause to be done all such acts and execute or cause to be executed all such further documents as may be necessary or desirable to give full effect to the provisions and the intent of this Agreement.
General Interpretation. Headings and titles in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Words in the singular include the plural and vice-versa and words in one gender include all genders. The terms “including” and “includes” shall be deemed to be followed by the statement “without limitation” and neither of such terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
Severance. If any provision of this Agreement is invalid, illegal or incapable of being enforced by reason of any rule or law or public policy, then such provision will be severed from and will not affect any other provision of this Agreement, and this Agreement will be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. All other provisions of this Agreement will, nevertheless, remain in full force and effect and no provision will be deemed dependent upon any other provision unless so expressed herein.
Enurement. This Agreement will enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors and permitted assigns.
Time of the Essence. Time is of the essence of this Agreement. Without limiting the generality of the foregoing, any waiver by HUTCH of any default of any obligation or agreement of the Customer under this Agreement is not to be construed as or constitute a waiver of any continuing or subsequent default of the same or any other obligation or agreement, and time will remain of the essence notwithstanding any such waiver.
Entire Agreement. The Parties agree that this Agreement, the Approved Order Form(s), and the PAD constitute the complete agreement of the parties regarding its subject-matter and supersede any previous agreement regarding its subject matter.
Independent Legal Advice. The Customer has been advised to obtain independent legal advice with regard to this Agreement and has done so or has considered doing so and if the Customer has not done so, the Customer has decided, in the Customer’s sole discretion and judgment, that it is not necessary.
Execution Under Seal. It is the intention of each Party to execute this Agreement under seal and, accordingly, whether or not the individual seal or corporate seal (if any) of a Party has been affixed hereto, this Agreement once signed by or on behalf of such party will be deemed to have been executed under seal.