1. Definitions.

For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:

“Administrator User” means an employee or contractor of Customer that has been designated by Customer to act as a Customer account manager and who has been supplied an administrative account and password by Customer (or by CommandWear at Customer’s request) for the Service which administrator account will be entitled to set-up or remove End Users and to monitor and communicate with End Users via the Service;

“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 Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

“Annual ServicesFee” means the annual fees (as specified in Schedule A or a Service Subscription Order Form executed by the parties) payable by Customer to CommandWear for the right to receive access to the Service;

“CommandWear App” means an object code application program developed by CommandWear and meant to operate on iOS, Android, BlackBerry or Windows Mobile devices for the purpose of enabling End Users to communicate location and other information to the Service;

“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service;

 

“Deliverable” means any software, studies, documentation and/or other materials prepared by CommandWear for Customer as described in a SOW;

 

“Documentation” means the online user guide for the Service, accessible via www.commandwear.com/help, as updated by CommandWear from time to time.

 

“End User” means anindividual employee, contractor or agent who is authorized by Customer to use the Service, and who has been supplied an end user account and password by Customer (or by CommandWear at Customer’s request) for the Service;

 

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

 

“Monthly Services Fee” means the monthly fees (as specified in Schedule A or a Service Subscription Order Form executed by the parties) payable by Customer to CommandWear for the right to receive access to the Service;

 

“Professional Services” means the services to be provided by CommandWear to Customer for the development of Deliverables, all as described in a SOW;

 

“Service” means the CommandWear cloud-based solution for location tracking and messaging with remote workers, as further described in the Documentation;

 

“Service Subscription Order Form” means a written document executed by the parties that specifies the Service, Service subscription period, Monthly Services Fees, Annual Service Fees and any other additional commercial terms agreed by the parties;

 

“Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the parties;

 

“Subscription Period” means an initial subscription period for the Service as specified in Schedule A or a Service Subscription Order Form executed by the parties;

 

“Term” has the meaning ascribed to that term in Section 10.1; and

 

“User” means an End User or an Administrator User.

 

  1. Grant of License.

2.1        Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, CommandWear shall make the Service available to Customer for Customer’s internal business use during the Subscription Period. Customer’s right to use the Service during the Subscription Period shall be in accordance with any additional conditions, restrictions or parameters specified in Schedule A or the Service Subscription Order Form(s) executed by CommandWear and Customer.

 

2.2        User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.

 

2.3        CommandWear App Access and Licensing. While Customer is receiving the Service, Customer shall be entitled to download the CommandWear App from the appropriate app stores or directly from a download location provided by CommandWear and to make the CommandWear App available to Customer’s End User’s for use in conjunction with the Service. All utilization of the CommandWear App is governed by the CommandWear end user license agreement (“EULA”), which is embedded in the CommandWear App and which may also be found at www.commandwear.com/eulacommunicator.  The terms of the EULA are hereby incorporated by reference into this Agreement.

 

2.4        Customer Affiliates. Customer Affiliates may use the Service subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.

 

  1. Use of the Service.

3.1        CommandWear Responsibilities. CommandWear shall: (i) in addition to its confidentiality obligations hereunder, CommandWear shall not disclose the Customer Data to anyone other than Customer and the applicable Users(s) (except for the purposes of CommandWear performing its obligations or exercising its rights under this Agreement); (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which CommandWear shall give at least eight (8) hours notice via the Service and which CommandWear shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Pacific Time Friday to 3:00 a.m. Pacific Time Monday); or (b) any unavailability caused by circumstances beyond CommandWear’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CommandWear employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within CommandWear’s possession or reasonable control, and denial of service attacks.

 

3.2        Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement and the Documentation. Customer shall: (i) be responsible for the security of passwords provided to Customer’s Users; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify CommandWear promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.

 

3.3        Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.

 

3.4        Professional Services. If Customer wishes to order Professional Services, Customer shall notify CommandWear and the parties will negotiate in good faith an applicable SOW. Upon execution of an SOW by the parties and subject to the terms and conditions set forth in Schedule B, CommandWear will provide Professional Services (including the development of Deliverables) for Customer all as described in such SOW.

 

3.5        Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.

 

  1. Fees and Payment.

4.1           Fees.In consideration for the receipt of the Service, Customer shall pay CommandWear the Monthly Services Fees annually in advance, all as further specified in Schedule A or an applicable Service Subscription Order Form executed by the parties and any Professional Services fees specified in any SOWs. All amounts are payable in Canadian dollars. Customer acknowledges and agrees that CommandWear may, upon written notice to Customer, use a billing agent to bill and collect amounts owing to CommandWear under this Agreement. In this regard, CommandWear hereby notifies Customer that until otherwise notified by CommandWear, CommandWear will be using Telus as a billing agent for billing and collection of amounts owing to CommandWear under this Agreement. Notwithstanding, the use of Telus for billing and collection of fees under this Agreement, the Service is not a Telus service and therefore any other agreements or terms and conditions that Customer may have entered into with Telus for other services do not form a part of this Agreement or the Service.

4.2           Invoicing and Payment. Fees for the Service will be invoiced annually in advance unless otherwise specified in Schedule A or an applicable Service Subscription Order Form executed by the parties. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Fees for Professional Services fees will be invoiced as specified in the applicable SOW, but unless specified otherwise in the SOW will be due net thirty (30) days from the date of completion of the applicable Professional Service.Customer is responsible for maintaining complete and accurate billing and contact information with CommandWear.

 

4.3           Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at CommandWear’s discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4           Taxes. Unless otherwise stated, CommandWear’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on CommandWear’s net income or property. If CommandWear has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides CommandWear with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.5           Audit Rights. CommandWear shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with this Agreement.

4.6        Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, CommandWear reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

 

  1. Proprietary Rights.

5.1           Reservation of Rights.   Subject to the limited rights expressly granted hereunder, CommandWear reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.

5.2           Restrictions.Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or Documentation; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.

5.3           Customer Data. As between CommandWear and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Customer hereby grants CommandWear a non-exclusive license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Service. The forgoing license shall include the right for CommandWear to use, copy and otherwise exploit the Customer Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). Notwithstanding any other provisions in this Agreement, all Aggregated Statistics shall be the sole and exclusive property of CommandWear and CommandWear shall own all right, title and interest in any Aggregated Statistics, including all intellectual property rights in respect thereto.

5.4           Suggestions. CommandWear shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.

  1. Confidentiality.

6.1           Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all SOWs hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2           Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

6.3           Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

6.4           Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.5           Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

  1. Warranties and Disclaimers.

7.1           Warranties. Each party warrants that it has the legal power to enter into this Agreement. CommandWear warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the Documentation; and (iii)the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User).

7.2           Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, COMMANDWEAR MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. Mutual Indemnification.

8.1           Indemnification by CommandWear.Subject to the terms and conditions of this Agreement, CommandWear shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by CommandWear and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by CommandWear, (i) Customer shall notify CommandWear promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give CommandWear sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with CommandWear in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without CommandWear’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.

8.2           Mitigation.If (a) CommandWear becomes aware of an actual or potential IP Claim, or (b) Customer provides CommandWear with notice of an actual or potential IP Claim, CommandWear may (or in the case of an injunction against Customer, shall), at CommandWear’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to CommandWear.

8.3           Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by CommandWear with other products, software or services not provided by CommandWear; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.

8.4           Indemnification by Customer.Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend CommandWear, its Affiliates and its and their directors, officers, employees and agents (the “CommandWear Indemnitees”) in any action, suit or proceeding brought by a third party against any of the CommandWear Indemnitees alleging that Customer’s use of the Service violates any applicable law orthe Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Customer Claims”)and shall indemnify and hold the CommandWear Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the CommandWear Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim.As conditions for such defense and indemnification by Customer, (i) CommandWear shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) CommandWear shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) CommandWear shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) CommandWear shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.

  1. Limitation of Liability.

9.1           Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

9.2           Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3           Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

9.4           Beneficiaries. Every right, exemption from liability, release, defence, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.

  1. Term and Termination.

10.1        Term of Agreement.This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of three (3) years (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”. If this Agreement expires and there are any outstanding Service Subscription Order Forms that have Subscription Periods that extend beyond the effective date of expiration of this Agreement, then this Agreement shall remain in effect in respect to such Service Subscription Order Forms until such Subscription Periods have completed, whereupon this Agreement shall expire (subject to Section 10.4 ( Surviving Provisions)). If this Agreement is terminated for cause by either of the parties then all Service Subscription Order Forms shall terminate at the same time as this Agreement terminates.

10.2        Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, CommandWear shall refund Customer any prepaid fees for any periods after the termination of the Agreement.

10.3        Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to CommandWear prior to the effective date of termination or expiration of this Agreement.

10.4        Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.

  1. General Provisions.

11.1        Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.2        No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

11.3        Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to CommandWear shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.

11.4        Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5        Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.6        Assignment. Neither party may assign any of its rights or obligations pursuant to this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all SOWs and Service Subscription Order Forms), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.7        Governing Law. This Agreement shall be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.

11.8        Venue; Waiver of Jury Trial. The provincial and federal courts located in Vancouver, British Columbia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.9        Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

11.10     Export.Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.

11.11     Entire Agreement. This Agreement, including all schedules, exhibits and addenda hereto and all SOWs and Service Subscription Order Forms constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto or any SOW or Service Subscription Order Form, the terms of such schedule, exhibit, addendum, SOW or Service Subscription Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

11.12     Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
IN WITNESS WHEREOF, the parties’ authorized signatories have duly executed this Agreement as of the Effective Date:

COMMANDWEAR SYSTEMS INC.                               CUSTOMER

 

By:                                                                               By:

 

Print Name:                                                                   Print Name:

 

Title:                                                                            Title:

 

Date:                                                                             Date:

 

 

 

Name and/or title of person authorized to receive notices for Customer under this Agreement (if different from above):

 

 

 

SCHEDULE A

PRICE SCHEDULE

 

 

The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.

 

SERVICE FEES

 

[Insert fees]

 

 

 

SCHEDULE B

Professional Services Terms

 

The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.

 

CommandWear is willing to provide Professional Services (including the development of Deliverables) on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule B. Such Professional Services may include: instruction and training on the use of CommandWear products and services; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.

 

1.     General. All Professional Services to be performed and Deliverables to be developed by CommandWear at Customer’s request shall be described in a Statement of Work, in such form as may be mutually agreed by the parties. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule B. In the event of a conflict between a Statement of Work and this Schedule B or the Agreement, this Schedule B or the Agreement, as the case may be, shall prevail unless the applicable Statement of Work states that the specifically identified conflicting terms in the Statement of Work are intended to prevail over the specifically identified conflicting terms in this Agreement or this Schedule B.

 

2.     CommandWear’s Obligations. CommandWear shall perform Professional Services and develop Deliverables for Customer as described in any Statements of Work agreed to in writing by the parties. CommandWear shall perform such Professional Services and develop Deliverables in a reasonable and workmanlike manner in keeping with industry standards and practices. CommandWear shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing Deliverables. Customer acknowledges and agrees that CommandWear may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist CommandWear in performing Professional Services and developing Deliverables under this Schedule B or a Statement of Work. CommandWear personnel and/or Subcontractors shall remain under the direction and control of CommandWear. If CommandWear is performing any Professional Services or developing any Deliverables at a Customer facility, then CommandWear shall comply with all Customer facility policies, procedures and rules that have been communicated to CommandWear in writing.

 

3.     Customer Obligations. Customer shall provide timely performance of its obligations under this Schedule B or any Statement of Work as required for CommandWear to perform its obligations under this Schedule B or any Statement of Work. In support of such obligations, Customer shall provide sufficiently qualified personnel who are capable of completing Customer’s duties and tasks pursuant to this Schedule B or any Statement of Work. Customer acknowledges and agrees that any delay on its part in the performance of its obligations will have an effect on CommandWear’s performance of the Professional Services and development of the Deliverables.

 

CommandWear may provide Professional Services or may develop Deliverables at Customer’s facilities or at CommandWear’s facilities as set forth in the relevant Statement of Work. If Professional Services are to be provided or Deliverables are to be developed at Customer’s facilities, Customer shall provide CommandWear with access to Customer’s facilities during normal business hours and at such other times as may be reasonably requested by CommandWear to facilitate the timely performance of the Professional Services and development of the Deliverables. Customer shall also provide CommandWear personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services or developing Deliverables at Customer’s facilities.

 

Customer shall designate a project management contact for the purposes of communication with CommandWear. The project management contact shall be the primary point of contact for Customer with CommandWear for matters relating to the provision of Professional Services and development of Deliverables.

 

4.     Price and Payment. Customer shall pay CommandWear the fees set forth in the Statement of Work either on a time and materials basis at CommandWear’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Customer shall reimburse CommandWear for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by CommandWear in the performance of any Professional Services or development of any Deliverables, provided that such expenses are approved in advance in writing by Customer. The fees for Professional Services and development of Deliverables shall exclude all applicable Taxes.

 

Unless otherwise specified in the Statement of Work, CommandWear, or its applicable billing agent, shall invoice Customer for fees for Professional Services and development of Deliverables provided pursuant to this Agreement or a Statement of Work on a monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.

 

5.     Term and Termination. This Schedule B shall remain in effect only during the Term. Customer may terminate a Statement of Work without cause upon thirty (30) days prior written notice to CommandWear. If Customer terminates a Statement of Work for convenience, Customer shall pay CommandWear the full fee for any Professional Services performed or in the case of the development of Deliverables a pro rata portion of the full fee to reflect the amount of development effort (including all other costs for which CommandWear has the right to reimbursement) up to the effective date of termination of such Statement of Work.

 

Each party shall be entitled to immediately terminate this Schedule B or a Statement of Work for cause in the event of: (i) a material breach by the other party of its obligations under this Schedule B or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Schedule B and any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.

 

6.     Intellectual Property Rights. CommandWear shall own all right, title and interest and all intellectual property rights to any Deliverables created by CommandWear pursuant to this Schedule B or any Statement of Work hereunder. CommandWear shall retain all right, title and interest and all intellectual property rights to any and all CommandWear proprietary information and CommandWear software. Subject to payment of the fees set forth in the applicable Statement of Work, CommandWear grants to Customer a non-exclusive, non-transferable (except as provided in Section 11.6 of the Agreement) license to use the Deliverables solely in connection with Customer’s permitted use of the Service as set forth in Section 2 of the Agreement.

7.     Indemnification. Each party shall defend the other party against any actions, proceedings and lawsuits in respect to such party’s negligence or intentional misconduct where actions result in death or bodily injury to any person or damage to tangible or real property (a “Claim”) and shall indemnify and hold such other party harmless from and against any settlements agreed in writing by the indemnifying party in respect to the Claim and/or any damages and costs awarded by a court of competent jurisdiction (including reasonable attorney’s fees) against such other party in respect to a Claim, subject to the conditions that: (a) the indemnified party gives the indemnifying party prompt notice in writing of each claim received by the indemnified party, (b) the indemnified party gives the indemnifying party the right to control and direct the investigation, defense and settlement of each claim, and (c) indemnified party has not compromised or settled the claim or made any admissions in respect thereto.

 

  1. Non-Solicitation.            Customer shall not enter into a contract for or of service with an employee of CommandWear who has been involved with, directly or indirectly, any of the Professional Services or development of any Deliverables hereunder within twelve (12) months of such employee’s last involvement with such Professional Services or Deliverables. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the employees of CommandWear.