Terms and Conditions for eSupport

Eligeo CRM Inc. Terms and Conditions for eSupport

STANDARD TERMS AND CONDITIONS 

THESE STANDARD TERMS AND CONDITIONS (these “T&Cs”) forms an integral part of and is hereby incorporated by reference into the Managed Services Agreement by and between Eligeo and the Client identified therein, to which this Schedule B is attached (collectively, the “Agreement”), and sets out the terms and conditions applicable to the provision of all Managed Services by Eligeo.  All capitalized terms not defined herein will have the meaning assigned to them in the Service Agreement or the attached Schedule, as applicable. 

  1. Definitions and Interpretation 

    1.1. Definitions.  In these T&Cs, capitalized terms will have the meaning assigned to them, including the following: 

    (a) “Affiliates” means with respect to any entity, an entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, and “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of an entity; 

    (b) “Applicable Law” means all applicable laws and regulations, including all applicable local, provincial, state, national and foreign laws, treaties and regulations as well as orders of courts or laws, regulations, by-laws or ordinances of applicable governmental agencies; 

    (c) “Business Day” means any day other than a Saturday, Sunday, or statutory holiday in Edmonton, Alberta;  

    (d) “Client Data” means any Client information, materials, details or data in respect of the Managed Services. 

      (e) “Fees” means the applicable monthly fee for the Managed Services as indicated in the Schedule, plus any Transition Services Fees; 

      (f) “Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, or any other applicable statutory provision or otherwise arising at law or in equity, including, without limitation, trade secret law, that may provide a right in works, software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims for damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing; 

            (g) “Managed Services” means the information technology management and strategic services to be performed by Eligeo pursuant to this Agreement; 

              (h) “Transition Services” means those specific transition services which Eligeo agrees to provide whereby Eligeo will reasonably cooperate and work with a Client’s new service provider to transition the Managed Services to such new service provider; and 

                (i) “Transition Services Fee” means those fees related to any Transition Services which Eligeo agrees to provide to the Client, as more particularly set out in the Schedule attached to this Agreement, or as otherwise agreed between the parties. 

                1.2. Interpretation.  Except as otherwise expressly stated, or the context otherwise requires, this Agreement will be interpreted as follows: (a) the headings of sections hereof are for convenience only and are not intended as a guide to interpretation of this Agreement or any part of it; (b) the word “including”, when following a general statement or term, does not limit the general statement or term (whether or not used in connection with phrases such as “without limitation” or “but not limited to”) and the word “or”, when connecting two or more matters, will not imply an exclusive relationship between the matters; (c) a reference to a person means an individual, corporation, body corporate, firm, limited liability company, partnership, syndicate, joint venture, society, association, trust or unincorporated organization or governmental authority or trustee, executor, administrator or other legal representative, including any successor to that person; (d) if there is any necessary conflict or inconsistency among the main body of this Agreement, the T&Cs and the Schedule, the following documents will prevail (in descending order) to the extent necessary to resolve same: these T&Cs, the Schedule and the main body of the Agreement; and (e) all references to money mean lawful currency of Canada.  

                  1.3. English Language.  The parties hereto have requested that this Agreement and any related documents be drafted in English.  Les parties aux présentes ont exigé que le présent contrat et tous les documents qui s’y rattachent soit rédigés en anglais. 

                  1.4. Governing Law and Jurisdiction.  This Agreement shall be governed by the law of the Province of Alberta, and the laws of Canada applicable therein, without reference to its conflict of law principles.  The parties agree that any and all controversies regarding this Agreement or the relationship between the parties should be with the appropriate courts in the Province of Alberta and such courts shall have exclusive jurisdiction over all such matters.  

                      2. Provision of Managed Services:  In consideration for the Fees set forth in the Schedule, during the Term of this Agreement, Eligeo shall, through its representatives or other third party providers authorized by Eligeo, provide the Managed Services as set out and limited below. 

                      3. Covenants, Representations and Warranties. 

                        3.1. Eligeo.  Eligeo covenants, represents and warrants that it will (a) provide the Managed Services as described in the Schedule and these T&Cs; (b) use commercially reasonable efforts to make the Managed Services available 8:00 am to 5:00 pm Mountain time on Business Days, unless otherwise agreed, except for planned downtime, of which Eligeo will give reasonable notice via e-mail to the Client and which Eligeo will schedule, to the extent practicable, during low-usage periods; and (c) provide the Managed Services in a professional and reasonable manner and in accordance with generally accepted industry standards and practices for services similar to the Managed Services as well as Applicable Law. 

                        3.2. Client.  The Client covenants, represents and warrants that it will (a) be responsible for the compliance of the Client, its Affiliates and their respective employees with this Agreement; (b) be solely responsible for the accuracy, quality, integrity, and legality of the Client Data and of the means by which the Client acquired the Client Data; (c) be responsible for ensuring that its network and software is current, supported and properly configured so as to permit Eligeo to effectively perform the Managed Services (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Managed Services, and promptly notify Eligeo of such unauthorized access or use; (e) be solely responsible for protecting the Client’s network, systems, infrastructure and Client Data from and against any malicious code, including, but not limited to, viruses, cancelbots, worms, time bombs, Trojan horses and other harmful, disruptive, surreptitious or malicious components, code, files, scripts, agents or programs, or with respect to defamatory, infringing, indecent or unlawful software, materials or information; (f) ensure that at all times during the Term it has appropriate insurance, including without limitation cybersecurity and data protection insurance, necessary to protect its network, systems, infrastructure and Client Data consistent with industry standard requirements; (g) use commercially reasonable efforts to ensure that any Client Data provided as part of the Managed Services does not contain (i) any malicious code, including, but not limited to, viruses, cancelbots, worms, time bombs, Trojan horses and other harmful, disruptive, surreptitious or malicious components, code, files, scripts, agents or programs, or (ii) defamatory, infringing, indecent or unlawful software, materials or information; and (h) use the Managed Services only in accordance with Applicable Law, including all applicable privacy law and regulations. 

                            3.3. Client Prohibitions.  The Client will not: 

                              (a) make the Managed Services available to anyone, or permit anyone to access the Managed Services, other than representatives of the Client, and, unless otherwise expressly permitted by written agreement with Eligeo, the Client will not license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent, lease, time-share, copy or otherwise commercially exploit the Managed Services in any way except in accordance with this Agreement; 

                              (b) use the Managed Services in any manner or for any purpose (i) that contravenes, facilitates the violation of, or violates any Applicable Law, including the extraction, gathering, collection or storage of personal information contrary to such Applicable Law, or (ii) that intentionally (or would reasonably be known to) interferes with or disrupts the integrity or performance of the Managed Services or third-party data contained therein; and 

                                (c) attempt to gain unauthorized access to the Managed Services or any related Eligeo systems or networks. 

                                  3.4. Internet Acknowledgement.  Client acknowledges that the Managed Services depend on the public Internet, including networks, cabling, equipment and facilities that are not in Eligeo’s control; accordingly, while Eligeo will use commercially reasonable efforts to provide the Managed Service, (a) any representation made by Eligeo regarding access performance, speeds, reliability, availability, use or consistency of the Services are on a “commercially reasonable efforts” basis taking into account such public Internet, and (b) data, messages, information or materials sent over the public Internet may be routed outside of the jurisdictions of Eligeo or the Client. 

                                  4. Fees and Payment:   

                                    4.1. Fees.  Client shall pay to Eligeo the Fees, as set forth on the Schedule, and other charges as may from time to time arise as set out in this Agreement or as otherwise agreed between the parties.  Payment of any and all federal, state, provincial, municipal and local excise, sales, use, duty and similar taxes, as may be applicable to the Managed Services provided hereunder, are the sole responsibility of the Client, and are in addition to the Fees or any other allowable fees or charges provided for herein. 

                                      4.2. Transition Services.  Where Eligeo has agreed to provide Transition Services upon an applicable termination event, Client shall pay the Transition Services Fee.  

                                        4.3. Payment.  Subject to section 4.4 and to anything to the contrary agreed in a Statement of Work or otherwise in writing, the Fees shall be paid by Client on a monthly basis on net thirty (30) day terms from the date of Eligeo’s invoice.  Non-payment of any charges when due shall constitute a default under this Agreement, and will result in Eligeo’s immediate right to suspend the provision of the Managed Services until all Fees are paid, or to terminate this Agreement in whole or in part. Interest shall accrue on any and all overdue amounts at the rate of five percent (5%) per annum, compounded and calculated monthly. 

                                          4.4. Clarification.  All Fees are based on the Managed Services purchased by the Client regardless of actual usage. Payment obligations are in advance for subscription terms and are non-cancellable and non-refundable except as expressly set out in this Agreement. 

                                            5. Proprietary Rights:   

                                              5.1. Reservation of Rights. All right, title and interest in, to and associated with the Intellectual Property Rights in and/or anything related to the Managed Services, including without limitation any forms, documentation, software or deliverables which may be included as part of the Managed Services, is and will at all times be fully vested in Eligeo or its licensors except as otherwise expressly set out in this Agreement.  Any and all additions, improvements, iterations, modifications or other changes made by Client to any of the Managed Services or any other deliverables or components of the Managed Services or any related services (the “Improvements”) shall upon creation be and be deemed to be at all times the sole and exclusive property of, and all right, title and interest in, to or in any way associated with such Improvements are and shall at all times be fully vested in Eligeo or its licensors except as expressly set out in this Agreement. Client further assigns to Eligeo all of Client’s world-wide right, title, and interest in and to the Improvements, including all world-wide copyrights, copyright registrations, copyrightable subject matter, trademarks, trade secrets, patent rights, and any other intellectual property rights in the Improvements, Client hereby waives any moral rights Client may have in the Improvements. 

                                                5.2. License.  Eligeo hereby grants to the Client for the Term, a limited, royalty-free, non-sublicensable, non-assignable, non-transferable, non-exclusive right and license to use the any output, deliverables or works created as part of the Managed Services or any related services only within the Client’s direct organization (and not within its affiliates or related entities) and only as part of the Managed Services or related services provided by Eligeo.  Client shall not disclose such output, deliverables or works to any third party or allow any third party to access or use them for any purpose whatsoever without Eligeo’s prior written consent.  Client shall further immediately notify Eligeo in writing of any actual or suspected breach of or infringement upon Eligeo’s Intellectual Property Rights about which it becomes aware.    

                                                  5.3. Client Data.  Eligeo does not claim ownership of, and except as expressly set out in this Agreement assumes no responsibility or liability with respect to, any Client Data.  All right, title and interest in and to Client Data (including any Intellectual Property Rights) , will at all times be owned the Client.  Notwithstanding the foregoing, by transmitting, storing, displaying, processing or otherwise using Client Data in any way with respect to the Managed Services or any related services, the Client will be deemed to have (a) represented and warranted to Eligeo that the Client has all right, title and interest (including all Intellectual Property Rights) in and to Client Data for its use with the Managed Services and/or related services and for the license granted to Eligeo below, and (b) further granted to Eligeo a royalty-free, worldwide, transferable, sub-licensable, license during the Term of this Agreement to use, copy, distribute, transmit, display, edit, delete, modify, publish and translate Client Data only to the extent reasonably required for the proper transmission, storage, display or other usage or performance thereof in connection with the Managed Services and any performance of Eligeo’s other obligations hereunder. 

                                                  5.4. Statistical Analysis.  Eligeo reserves the right to perform statistical analysis of access to and use of the Managed Services and Client Data, including network traffic and access requests, for the purposes of measuring the effectiveness of the Managed Services, optimizing performance, and ensuring compliance with this Agreement. 

                                                    6. Disclaimers; Limitation of Liability:  

                                                      6.1. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET OUT IN THIS AGREEMENT, ELIGEO MAKES NO OTHER REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY STATUTORY, EXPRESS, IMPLIED OR OTHER WARRANTIES OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, AND/OR ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. 

                                                        6.2. THIS AGREEMENT DOES NOT ASSURE UNINTERRUPTED OPERATION OF ANY SOFTWARE OR EQUIPMENT PROVIDED OR MANAGED BY ELIGEO PURSUANT TO ANY OTHER AGREEMENT AS MAY EXIST BETWEEN ELIGEO AND THE CLIENT. 

                                                          6.3. ELIGEO WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THE PERFORMANCE OF THE MANAGED SERVICES RESULTING FROM ANY CAUSE, CONTINGENCY OR CIRCUMSTANCE WHICH IS BEYOND ITS REASONABLE CONTROL, including, but not limited to: accidents, disasters, fires, floods, water, winds, lightning, or other acts of God; pandemics or other national or global health emergencies, governmental acts, orders or regulations; war or other hostilities, explosion, conventional or otherwise; release of radiation; civil disturbances; strike or labor difficulties; transportation delays or contingencies; neglect or misuse; destruction in whole or in part of the Client’s computer equipment; failure in telecommunications equipment not controlled by Eligeo; and failure in the public Internet; in each case which prevents or hinders the provision of the Managed Services, any of which shall, without liability and at Eligeo’s option, excuse Eligeo from performance of this Agreement for the duration of such event. 

                                                            6.4. SUBJECT TO SECTION 6.6, IN NO EVENT WILL ELIGEO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (THE “ELIGEO PARTIES”) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, SAVINGS OR BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS OR OTHER ECONOMIC LOSS OF ANY KIND OR FOR ANY CLAIM AGAINST THE CLIENT BY ANY OTHER PARTY, OR FOR ANY LOSSES, EXPENSES, CLAIMS OR OTHER DAMAGES WHICH THE CLIENT MAY INCUR HEREUNDER INCLUDING, WITHOUT LIMITATION, AS THE RESULT OF THE CLIENT’S INABILITY TO UTILIZE THE MANAGED SERVICES OR ANY OTHER SERVICES FOR ANY PERIOD OF TIME ANY FOR ANY REASON, EVEN IF THE ELIGEO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   

                                                              6.5. SUBJECT TO SECTION 6.6, ELIGEO’S ENTIRE LIABILITY TO CLIENT FOR ANY CAUSE OF ACTION WHATSOEVER AND, REGARDLESS OF THE FORM (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO THE CLIENT’S ACTUAL, DIRECT, PROVABLE DAMAGES, NOT TO EXCEED THE AGGREGATE AMOUNT OF THE FEES FOR MANAGED SERVICES PAID BY THE CLIENT TO ELIGEO UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT WHICH GIVES RISE TO THE CAUSE OF ACTION; PROVIDED HOWEVER THAT IN NO EVENT WILL ELIGEO BE LIABLE FOR ANY CLAIMS AGAINST THE CLIENT IN RESPECT OF TAXES EVEN IF RELATING TO THE PERFORMANCE OF THE MANAGED SERVICES.  CLIENT ACKNOWLEDGES AND AGREES THAT ANY LIABILITY CLAIM UNDER THIS MANAGED SERVICES AGREEMENT SHALL BE MADE AGAINST ELIGEO ALONE AND ELIGEO’S DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL NOT HAVE ANY LIABILITY WHATSOEVER UNDER THIS AGREEMENT. 

                                                                6.6. NOTWITHSTANDING SECTIONS 6.4 AND 6.5 ABOVE OR ANY OTHER PROVISIONS IN THIS AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT ELIGEO WILL HAVE NO LIABILITY WHATSOEVER AND SHALL NOT BE REQUIRED TO INDEMNIFY OR OTHERWISE BE RESPONSIBLE FOR ANY DAMAGES OR LIABILITIES INCURRED WHATSOEVER BY THE CLIENT OR ANY THIRD PARTY IN ANY WAY RELATED TO (I) ANY BUGS, TROJAN HORSES, BOTS, VIRUSES, DISRUPTIVE OR DAMAGING CODE OR ANY OTHER MALICIOUS CODE; OR (II) ANY THIRD PARTY SOFTWARE PRODUCTS OR TOOLS COORDINATED BY ELIGEO (AND, IN SUCH INSTANCES, THE CLIENT ACKNOWLEDGES AND AGREES THAT ITS SOLE REMEDIES WITH RESPECT TO SUCH THIRD PARTY SOFTWARE PRODUCTS WILL BE AS SET OUT IN THE SOFTWARE LICENSE TERMS AGREED BETWEEN THE CLIENT AND SUCH THIRD PARTY SOFTWARE PROVIDER). 

                                                                  6.7. Notwithstanding anything to the contrary in this Agreement, Client shall indemnify, defend and hold harmless Eligeo and its affiliates as well as its or their respective officers, directors, employees and agents from and against any and all claims, liabilities, causes of action, damages, judgments, lawyers’ fees, court costs, and expenses which are out of or are in any way related to:  (this Agreement, the Managed Services or any related services; (ii) Client’s business and/or customers; (iii) any negligent, willful or unlawful acts or omissions of Client; or (iv) any claims related to Client’s actions or inactions.  Client shall have the right at all times to control the defense of any indemnification claim however, if Client declines to defend an indemnification claim, Client acknowledges and agrees that Eligeo may control the defense of any such claim and that Client shall be responsible for any and all costs incurred by Eligeo in controlling such defense including all legal fees and disbursements and any other fees, expenses and disbursements in any way related to defending such claim.  Client’s obligation to indemnity shall survive the expiration or termination of this Agreement.   

                                                                  7. Term and Termination:  This Agreement shall commence on the commencement date set out in the Schedule and remain in full force and effect until the end date indicated in the Schedule or else until terminated by either party as set forth below. 

                                                                    7.1 Termination.  A party may elect to terminate this Agreement as follows: 

                                                                    (a) by either party upon written notification to the other party, made not less than one (1) month prior to the end of the month in which the party seeks to have the termination take effect provided that if the Client is terminating a multi-year engagement under this Agreement, then concurrent with the provision of the notice to terminate, Client will pay to Eligeo a termination fee equal to fifty percent (50%) of the remaining value of the Fees under this Agreement.  Failure on the part of the Client to pay the Termination Fee when due will render any corresponding termination notice null and void and this Agreement will continue in full force and effect..  In the event that either party exercises its right to terminate under this section 7.1(a), upon the written request of the Client, Eligeo will provide up to thirty (30) days of transition services (at the rates set out in the Fees) provided that the Client is current on all payments of Fees and is not overdue on any such payments; 

                                                                    (b) by one party on thirty (30) days’ prior written notice to the other party upon the occurrence of a material breach by the other party to observe or perform any of the terms and conditions of this Agreement where the other party has failed to remedy such failure within the period of such notice. 

                                                                      (c) by Eligeo upon delivery of a minimum of ten (10) days prior written notice to the Client, upon the occurrence of the failure by the Client to pay any Fees or any other allowable fees, expenses or charges due and payable hereunder or otherwise invoiced to the Client hereunder where the Client has failed to pay such amount within the period of such notice; or 

                                                                        (d) automatically, and without prior written notice, upon the filing of a petition in bankruptcy or for arrangement or reorganization by or against Client, or the attachment of any property of Client, or in the event a receiver is appointed for Client. 

                                                                          7.2. Rights After Termination: 

                                                                            (a) Eligeo shall retain all sums received with respect to the payment of Fees hereunder from Client prior to the date of such termination, and Client shall (i) pay to Eligeo all Fees and other outstanding charges due through the date of termination and (ii) if the termination is due to a default by Client under section 7.1(b), be liable for all legal fees and other costs and expenses resulting from the foregoing default or the exercise of Eligeo’s remedies, to the extent such fees, costs, and expenses are allowed by law. 

                                                                              (b) If this Agreement is terminated by Client under Section 7.1(b), (i) Eligeo may retain on a pro rata basis all sums received hereunder from Client prior to the date of such termination to the extent that such sums relate to Managed Services provided before the effective date of termination, (ii) Client shall pay to Eligeo all Fees and other outstanding charges due to the effective date of termination, and (iii) Eligeo will refund to Client on a pro rata basis all sums, if any, received hereunder from Client prior to the date of such termination to the extent that such sums relate to Managed Services to be provided after the effective date of termination. 

                                                                                (c) In addition to the rights and obligations set out at subsections 7.2(a) and (b), upon the termination of this Agreement for any reason, Client acknowledges and agrees that Eligeo shall have no obligation to return any and all equipment, documentation, materials or work product of any sort to the Client until such time as the Client has paid all outstanding Fees including without limitation, prepaying the agreed amount of Transition Services Fees.   

                                                                                  8. Suspension or Cancellation of Managed Services: Notwithstanding anything above to the contrary, and in addition to Eligeo’s rights to terminate this Agreement as provided above, Eligeo may, at its option and without prior notice to Client, suspend and refuse to provide any Managed Services upon the occurrence of any of the events which would otherwise allow Eligeo to terminate this Agreement except under Section 7.1(b) and (c).  Service may thereafter be resumed in the event Client cures its breach or default or, in the event such breach or default continues, Eligeo may, in its sole discretion, declare Client to be in default and thereupon, in addition to its other legal and equitable remedies, may elect to terminate all or any portion of Eligeo’s obligations under this Agreement. 

                                                                                    9. Confidentiality: 

                                                                                      9.1. For the purposes of this Agreement, the term “Confidential Information” shall mean any information which is designated in writing or orally by the disclosing party at the time of disclosure to be confidential, or that, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be considered to be confidential, but does not include information which the receiving party can prove to a reasonable certainty: 

                                                                                      (a) Is or became publicly available without breach of this Agreement; 

                                                                                        (b) Was known to the receiving party, at the time of disclosure, as demonstrated by written evidence in existence at the time of disclosure; 

                                                                                          (c) Was independently developed by the receiving party without any use of any of the Confidential Information of the disclosing party and by employees of the receiving party who have not had access to the Confidential Information, as demonstrated by written evidence created at the time of such independent development; 

                                                                                            (d) Becomes knowns to the receiving party, without restriction as to confidentiality, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; or 

                                                                                              (e) Is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided however, that the receiving party will provide prompt notice of such order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.   

                                                                                                9.2. Eligeo and Client each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purposes other than to fulfill its respective obligations related to this Agreement. 

                                                                                                  9.3. Each party will ensure that the Confidential Information of the other party is disclosed only to the extent required for fulfilling its respective obligations hereunder and only to (i) those of its directors, officers, employees consultants or agents who need to have the information in order to perform their obligations in relation to this Agreement, and (ii) who have executed written agreements obligating them to protect the Confidential Information of the disclosing party in a manner materially similar to the terms of this Agreement. 

                                                                                                    9.4. Each party agrees that it will exercise commercially reasonable and diligent efforts to protect the secrecy of, and avoid the disclosure or unauthorized use of, the Confidential Information of the disclosing party.  Each party agrees to notify immediately the other party of any actual or suspected misuse or unauthorized disclosure of the other’s Confidential Information. 

                                                                                                      9.5. Any information that has been provided by one party to the other in connection with this Agreement, including Confidential Information, will be promptly returned or destroyed by the receiving party on the disclosing party’s written direction, and certify in writing that all copies of such information have been returned or destroyed, within ten (10) days from the receipt of a written request of the disclosing party. 

                                                                                                        9.6. Each party acknowledges and agrees that the Confidential Information is of such unique proprietary nature that the other party would suffer irreparable harm that could not be compensated in damages in the event of any breach of the obligations in this Part 9.  Accordingly, in the event of any breach or threatened breach of this Part 9, the non-breach party will be entitled to pursue injunctive relief. 

                                                                                                          9.7. This Part 9 will survive the actual or purported termination or expiration, for any reason, of the Agreement. 

                                                                                                            9.8. Documentary information covered by this Agreement shall be marked as “Confidential” by the disclosing party prior to its delivery to the receiving party.  Oral information disclosed by a disclosing party under this Agreement shall be described as confidential at the time of disclosure, which understanding will be confirmed in writing by the disclosing party within ten (10) days of the disclosure. 

                                                                                                              10. Miscellaneous: 

                                                                                                                10.1. Authority.  Client warrants that upon execution of this Agreement and during the Term hereof, Client has and will continue to have full right, power and authority to order the Managed Services as provided herein from Eligeo or its authorized representatives and to comply with all obligations hereunder including without limitation the obligation to pay the Fees. 

                                                                                                                  10.2. Access.  Client agrees to allow Eligeo or its representatives reasonable access to and use of the Client’s software systems and related equipment and peripherals as may be necessary to provide the Managed Services covered hereunder.  Upon notification to Client when deemed necessary by Eligeo, and as a condition to any Managed Service provided herein, Client will provide and maintain an Internet-based connection to the software systems and related equipment and peripherals (as appropriate) according to Eligeo’s specifications. 

                                                                                                                    10.3. Limitation Period.  No actions, regardless of form, arising out of the services provided under this Agreement, may be brought by either party more than one (1) year after the cause of action has occurred, provided that an action for non-payment may hereunder be brought at any time allowed by applicable law. 

                                                                                                                      10.4. Non-Assignment.  Client may not assign its rights or obligations under this Agreement without the prior written consent of Eligeo. This Agreement shall, however, enure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, successors and assigns.   

                                                                                                                        10.5. Attribution.  The parties shall have the right to refer to the other party as a strategic partner or customer/partner of the other party and to link to the other party’s website.  Each party also hereby grants to the other party a limited, non-exclusive, royalty-free, non-transferable, non-assignable, right and license to use its logos and/or trademarks for the limited purpose of this Attribution provision provided any such use of the logos and trademarks is entirely at the discretion of the owner of the logos and trademarks and any use made of the logos and trademarks by the licensee shall at all times be strictly in accordance with any standards or guidelines provided by the owner of the logo or trademarks.  

                                                                                                                          10.6. Time of the Essence.  Time is of the essence of this Agreement.   

                                                                                                                            10.7. Non-Solicitation:  During the Term and for a period of six (6) months after its expiration or termination, neither party will knowingly make an offer of employment to any officer, director, partner, employee or contractor of the other party without the prior approval of the other party.  

                                                                                                                              10.8. Modifications.  This Agreement can only be modified by a written instrument duly signed by persons authorized to sign such Agreements on behalf of the parties hereto. 

                                                                                                                                10.9. Entire Agreement; Independent Advice.  Client acknowledges that it has read this Agreement (including all schedules and addenda), understands it, and agrees to be bound by its terms and conditions.  Client acknowledges having had sufficient opportunity to seek legal and other professional advice in connection with this Agreement.  Further, Client agrees that this Agreement constitutes the entire agreement between the parties hereto pertaining to the matters herein set forth and supersedes all prior agreements, representations, statements, information, promises, warranties, arrangements and understandings, whether oral or written, express or implied, with respect to the Managed Services.  Eligeo shall not be bound or charged with any arrangements not specifically set forth in this Agreement, on the Client’s acknowledgement and agreement that, in entering into this Agreement, it has not in any way relied, and will not in any way rely, upon any arrangements not specifically set forth in this Agreement. 

                                                                                                                                  10.10. Independent Contractor.  The relationship created under this Agreement is one of independent contractors, and will no be construed to create a partnership, joint venture, agency or employment relation between the parties.   

                                                                                                                                    10.11. Non-Cumulative Remedies.  No remedy of Eligeo in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy provided for this Agreement, or otherwise available to Eligeo at law or in equity.  No express or implied waivers by Eligeo of any default shall constitute the waiver of any other default by Client or a waiver of Eligeo’s rights. 

                                                                                                                                      10.12. Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not be affected. 

                                                                                                                                        10.13. Execution.  This Agreement is executed effective as of Effective Date and may be executed in counterparts (including by electronic or digital transmission) each of which will constitute an originally signed instrument and all of which, taken together, will constitute one and the same Agreement.