Exhibit 10.14
Agreement between the Company and Advanced Contact Solution Inc.
THIS AGREEMENT is dated effective as of Monday, September 20, 1999.
BETWEEN:
SIDEWARE SYSTEMS INC.
Suite 102 - 000 Xxxx 0xx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx, X0X 0X0
("Sideware")
AND:
ADVANCED CONTACT SOLUTIONS, INC.
0000 Xxxx 000xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, XXX, 00000
("ACS")
WHEREAS:
A. Sideware is the developer of, and owner of all rights associated with,
the computer software application known as Xx. Xxxx;
B. Xx. Xxxx is a customer service software application that enables
businesses operating Internet websites to provide online customer service;
C. ACS is a provider of outsourced customer relationship management
services and solutions, including online customer service over the Internet;
D. Sideware, both directly and through its network of Sideware VAR'S,
intends to offer outsourced customer service utilizing Xx. Xxxx to its Xx.
Xxxx customers;
E. Sideware and ACS wish to enter into an agreement whereby ACS will
provide outsourced customer service utilizing Xx. Xxxx to Sideware customers,
on a non-exclusive sub-contractor basis, in accordance with the terms and
conditions set out below;
NOW THEREFORE, Sideware and ACS, intending to be legally bound, hereby agree
as follows:
1. DEFINITIONS
1.1 In this Agreement:
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a) "Account Maintenance Services" means services of the nature
specified in section 1.04 of Schedule ""A";
b) "ACS Services" means the outsourced customer services provided by
ACS to Sideware Clients pursuant to this Agreement;
c) "Commencement Date" means the date on which ACS first begins to
provide ACS Services to a Sideware Client pursuant to this Agreement;
d) "Contact" means the respective individuals appointed pursuant to
Article 7 by each party as their points of initial interface;
e) "Copy" means a reproduction of computer programs and other
information onto any medium, whether electronically or otherwise;
f) "Customer Service Contract" means a contract between Sideware and
a Sideware Client pursuant to which ACS Services are provided to the
Sideware Client;
g) "Derivatives" has the meaning set out in section 6.04;
h) "Xx. Xxxx" means the customer service software program developed
and owned by Sideware, including documentation relating to the program
and all updates and new releases of the program;
i) "Intellectual Property Rights" includes copyrights, patents,
trade marks, service marks, design rights (whether registered or
unregistered), moral rights, semiconductor topography rights, trade
secrets and all other similar proprietary rights;
j) "Minimum Monthly Payment" means the amount designated as a
minimum monthly payment pursuant to any Customer Service Agreement;
k) "Sideware Clients" means business organizations which have
licensed Xx. Xxxx from Sideware and have also entered into Client
Service Contracts with Sideware, and "Sideware Client" means any one of
them; and
l) "VARs" means Sideware's value-added resellers of Xx. Xxxx and
participants in the Sideware Partner Program, and "VAR" means any one of
them.
2. PROVISION OF ACS SERVICES
ACS TO PROVIDE ACS SERVICES
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2.01 Subject to the terms and conditions of this Agreement, ACS will
provide outsourced ACS Services to Sideware Clients.
SPECIFICATIONS FOR ACS SERVICES
2.02 Each Sideware Client will enter into a Customer Service Contract,
which will follow the form of Schedule "A" as closely as practicable.
SERVICE CHANGES REQUESTED BY SIDEWARE CLIENTS
2.03 If any Sideware Client shall request a change in the services which it
receives pursuant to its Customer Service Contract, Sideware and ACS will use
their best efforts to agree on mutually acceptable changes, in accordance
with any applicable procedures set out in the Customer Service Contract
between Sideware and the Sideware Client. Sideware will not agree to any
changes without the consent of ACS.
SERVICE CHANGES REQUESTED BY SIDEWARE AND ACS
2.04 If at any time it ceases to be reasonably practicable for ACS to
provide the ACS Services specified in the Customer Service Contract of any
Sideware Client, Sideware will, upon written request from ACS, propose
changes in accordance with any applicable procedures set out in the Customer
Service Contract. Sideware and ACS will use their best efforts to agree on
changes which are mutually agreeable, and which are also agreeable to the
Sideware Client. If all parties are not able, within 30 days of the request
of ACS, to agree on mutually acceptable changes:
(a) if so requested by ACS, or if Sideware considers it advisable to do so,
Sideware shall invoke such procedures as may be available to it under
the Customer Service Contract to terminate the Customer Service Contract;
and
(b) until the Customer Service Contract is terminated, ACS shall continue
to provide services as close as is practicable to those specified in
the Customer Service Contract.
SERVICE QUALITY CRITERIA
2.05 In providing ACS Services to Sideware Clients, ACS shall ensure that:
(a) all outsourcing customer service representatives used by ACS will be
university level representatives, fluent in the English language;
(b) all outsourcing customer service representatives providing services to
Sideware Clients will conduct themselves in a manner which promotes the
goodwill of Sideware and the Sideware Clients; and
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(c) the ACS Services provided in respect of any Customer Service Contract
meet the quality criteria set out in such Customer Service Contract.
SOFTWARE AND TRAINING
2.06 Sideware will provide ACS, free of charge, with sufficient copies of
Xx. Xxxx to enable it to provide the required service to Sideware
Clients. In addition, Sideware shall:
(a) provide ACS with no-charge technical support for Xx. Xxxx;
(b) be responsible for providing Sideware Clients with technical support
for Xx. Xxxx; and
(c) provide to ACS employees such training sessions relating to Xx. Xxxx
as ACS may reasonably require.
With respect to item (c), Sideware will bear the cost of any training
facilities and equipment, and of conducting any training sessions. ACS will
bear the cost of transportation and living accommodations for its employees.
Training will be provided at the location, on the date or dates, and for the
number of ACS employees, as Sideware in its discretion specifies after
consultation with ACS, which consultation will not be binding on Sideware.
SERVICE REPORTS
2.07 ACS will provide Sideware with such information as Sideware may
reasonably require to provide service reports required under Customer Service
Contracts.
SOFTWARE LICENSE
2.08 Subject to the terms and conditions set out in this Agreement,
Sideware hereby grants to ACS a license to use Xx. Xxxx solely for the
purpose of providing ACS Services to Sideware Clients pursuant to this
Agreement. No other rights are granted to ACS in respect of Xx. Xxxx by this
Agreement.
3. CONTRACTING PROCEDURES
Pre-Contractual Procedures
3.01 Sideware will not enter into any Customer Service Contract with a
Sideware Client until Sideware and ACS have completed the following
procedures:
(a) Sideware and ACS will agree on an hourly rate charge to be included in
the contract for ACS Services.
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(b) Sideware and ACS will agree upon an estimated number of service hours
which, when applied to the hourly rate for ACS Services, will form the
basis for a Minimum Monthly Payment to be paid by the Sideware Client in
advance.
(c) Sideware and ACS will agree upon a description of the work required to
perform the Account Maintenance Services for the Sideware Client, and on:
(i) the amount to be charged, or the basis for charging, for the
Account Maintenance Services; and
(ii) which party will perform, and be entitled to receive payment for,
the Account Maintenance Services.
Sideware and ACS acknowledge that in the case of Customer Service
Contracts negotiated by a Sideware VAR, some or all of the Account
Maintenance Services may be performed by, and some or all of the payment
therefor received by, the Sideware VAR.
(d) Sideware and ACS will agree on the ACS Services to be provided to the
Sideware Client, to be included in Schedules "A", "B", and "C" in the
Customer Service Contract. Without limiting the generality of the
foregoing, Sideware and ACS shall both be satisfied that ACS can
practicably perform the ACS Services, and that provision of such ACS
Services will be economical at the prices set out in the Customer
Service Contract.
(e) Sideware will perform reasonable credit checks on the Sideware Client,
and shall provide to ACS such information as Sideware is reasonably
able to provide concerning the creditworthiness of the Sideware Client.
(f) If the contract is to be negotiated by a Sideware VAR, the parties shall
agree on the functions to be performed by the Sideware VAR and, except
where determined elsewhere in this Agreement, the remuneration for the
Sideware VAR.
BEST EFFORTS
3.02 The parties will use their best efforts to agree on all matters
requiring the parties' agreement to permit Sideware to complete Customer
Service Contracts with Sideware Clients, including without limitation the
matters set out in section 3.01. The parties agree that owing to the
requirements of individual Sideware Clients, Sideware may be required to
negotiate changes to the standard form of Customer Service Contract annexed
as Schedule "A" hereto. The parties will use their best efforts to agree on
commercially reasonable changes, when required. Without limiting the
generality of the foregoing, in the event that a Sideware Client is unwilling
to pay time-based charges for the ACS Services, the parties will use their
best efforts to agree on an alternate method for charging the client, and
upon consequential changes to the provisions of Article 4.
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APPROVAL OF FORM OF CONTRACT
3.03 Sideware will not enter into any Customer Service Contract with a
Sideware Client until ACS has approved the form of contract. If the matters
set out in section 3.01 have been resolved, ACS shall:
(a) respond as expeditiously as possible to any request from Sideware to
consent to a form of Customer Service Contract; and
(b) not withhold its approval unreasonably.
4. SERVICE PRICING
HOURLY SERVICE CHARGE
4.01 Subject to any adjustment made as provided for in this Agreement, the
fees payable to ACS for providing ACS Services will be based on the hourly
rate set out in Schedule "B" to this Agreement. The parties acknowledge that
this figure has been negotiated in the expectation that corresponding list
price charged by Sideware to the Sideware Clients will be the estimated list
price set out in Schedule "B". Fees payable to ACS will be calculated and
payable in accordance with the provisions of this Article 4.
DEFINITION OF SALES CHANNEL MARGIN
4.02 The Sales Channel Margin shall be equal to the difference between the
hourly charge payable by Sideware Clients to Sideware for ACS Services and
the hourly charge payable to ACS (as set out in section 4.01, or as otherwise
determined or adjusted pursuant to this Agreement).
DIVISION OF SALES CHANNEL MARGIN
4.03 The Sales Channel Margin shall be divided as follows:
(a) In cases where the contract between Sideware and the Sideware Client
is negotiated without a Sideware VAR:
To ACS - 29%
To Sideware - 71%
(b) In cases where the contract between Sideware and the Sideware Client is
negotiated by a Sideware VAR, the following division shall prevail
initially:
To ACS - 29%
To Sideware - 57%
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To Sideware VAR - 14%
The division set out above shall continue for so long as the Sideware
VAR who negotiated the contract continues to provide Account
Maintenance Services to the Sideware Client, or to act as a liaison
with the Sideware Client. Thereafter, the division set out in
subsection (a) shall apply.
The parties acknowledge that the division set out above in this
subsection (b) may be subject to renegotiation with specific Sideware
VAR's.
PAYMENT PROCEDURES
4.04 Payment of the amounts payable to ACS pursuant to this Agreement will
be made on the following basis:
(a) As soon as practicable following the receipt of a Monthly Minimum
Payment from a Sideware Client, Sideware shall remit to ACS its
portion of the Minimum Monthly Payment, which shall be equal (unless
otherwise agreed in respect of a specific Sideware Client) to the
hourly charge payable to ACS in respect of ACS Services provided to
such Sideware Client multiplied by the number of hours which formed
the basis for the Minimum Monthly Payment. If a Sideware Client makes
only a portion of its required Minimum Monthly Payment, the parties
shall divide such payment pro rata in accordance with their respective
entitlements.
(b) As soon as practicable following the end of each month ACS will provide
to Sideware a full statement of the ACS Services provided during the
month to each Sideware Client, such statement to contain sufficient
information to enable Sideware to invoice the Sideware Clients. ACS
will use its best efforts to provide such information within 5 days
following the end of each month.
(c) As soon as practicable following receipt of the information described in
(b), Sideware will invoice the Sideware Clients. Sideware will use its
best efforts to invoice the Sideware Clients within 5 days following
receipt of the information described in (b).
(d) As soon as practicable following receipt of payment from Sideware
Clients, Sideware will pay to ACS the amounts owing to ACS for the ACS
Services for which Sideware has received payment. Any interest received
by Sideware on overdue accounts will be shared between Sideware, ACS,
and any applicable VAR in the proportions set out in section 4.03.
(e) Sideware will use commercially reasonable efforts to collect unpaid
invoices, and may in its discretion acting reasonably agree to reduce
the amount owing in order to effect settlement of the claim. Sideware,
ACS, and any applicable VAR will share the settlement proceeds in
accordance with their respective entitlements.
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PRICE REVIEW PROCEDURE
4.05 The parties acknowledge that the business to be established and
operated pursuant to this Agreement is novel, and that as a result, the
parties do not have adequate operating experience on which to base accurate
cost or pricing calculations. The pricing provisions set out in this
Agreement for ACS Services will be in effect for a period of 180 days from
the Commencement Date. 150 days following the Commencement Date, the parties
shall begin good faith negotiations to adjust the pricing provisions for ACS
Services, with a view to establishing new pricing to take effect 180 days
from the Commencement Date. The new pricing will be implemented as follows:
(a) Subject to subsection (b), the new pricing will apply to all new
Customer Service Contracts completed subsequent to the effective date
for the new pricing.
(b) New pricing established pursuant to this section will not apply to ACS
Services being provided in respect of Customer Service Contracts already
in place prior to the establishment of the new pricing, until such time
as Sideware is able to implement a price adjustment in respect of such
Customer Service Contracts.
(c) As soon as practicable Sideware will implement price adjustments in
accordance with the applicable procedures set out in its existing
Customer Service Contracts, to make the pricing under those Customer
Service Contracts consistent with the new pricing established pursuant
to this section.
5. RELATIONSHIP OF THE PARTIES
NO PARTNERSHIP OR JOINT VENTURE
5.01 The relationship between Sideware and ACS is that of
contractor/subcontractor. This Agreement is not intended by the parties to
constitute or create a joint venture or partnership of any kind. Neither
party shall have the authority to bind the other except to the extent, if
any, expressly authorized in this Agreement. Neither party shall make any
statement or representation to the effect that its relationship with the
other party is anything other than as set out in this section.
DISCLAIMER OF EMPLOYMENT
5.02 Neither Sideware's nor ACS's officers, employees or agents shall be
deemed officers, direct or indirect employees, or agents of the other.
CONTROL OF ACS
5.03 Subject to section 2.05, ACS shall have exclusive discretion in the
selection, engagement and discharge of its personnel and the direction and
control thereof. The determination of the wages, salaries and compensation
of the personnel, workers and employees of ACS shall be within ACS's full
control.
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CONTACT WITH SIDEWARE CLIENTS
5.04 Sideware (or in the case of a Customer Service Contract negotiated by
a Sideware VAR, the Sideware VAR)shall be the prime interface with Sideware
Clients both before and after their entry into Customer Service Contracts.
Notwithstanding the foregoing, it is recognised that ACS employees will
likely have day-to-day contact with Sideware Clients' employees in providing
ACS Services. It is also recognized that ACS may be the recipient of
inquiries from Sideware Clients relating to the subject-matter of this
Agreement which go beyond the day-to-day interface concerning ACS Services.
Therefore, any such "high level" communications invited by a Sideware Client
directly with ACS concerning any matter relating to this Agreement, the
Customer Service Contract or Xx. Xxxx will not constitute a breach of this
Agreement, provided that Sideware is notified of such contact by ACS prior to
the communication where possible (and allowed to direct or assume such
communication at Sideware's option) or, where not possible, subsequently in a
timely manner.
6. NON-DISCLOSURE , NON-COMPETITION, AND PROPRIETARY INFORMATION
CONFIDENTIAL INFORMATION
6.01 During the term of this Agreement, the parties may exchange
proprietary and/or confidential information, including but not limited to,
each party's performance, sales, financial, contractual, and technical data,
and product plans, designs, costs, prices and names, finances, marketing
plans, business opportunities, customers, personnel, research, development or
know-how, and the parties acknowledge that such will be considered
confidential ("Confidential Information") provided that information disclosed
by the disclosing party ("Discloser") will be considered Confidential
Information by the receiving party ("Recipient") only if such information is
conspicuously designated as "Confidential": (i) in writing, if communicated
in writing; or (ii) confirmed in writing within thirty days of disclosure if
disclosed orally, and provided further that Confidential Information shall
not include information that: (i) is now or subsequently becomes generally
available to the public through no fault or breach on the part of Recipient;
(ii) Recipient can demonstrate to have had rightfully in its possession prior
to disclosure to Recipient by Discloser; (iii) is independently developed by
Recipient without the use of any Confidential Information; or (iv) Recipient
rightfully obtains from a third party who has the right to transfer or
disclose it. Notwithstanding the foregoing limitations, all technical
information relating to Xx. Xxxx will constitute Confidential Information,
except to the extent that such technical information is generally available
to the public through no fault or breach on the part of ACS.
PROHIBITION AGAINST DISCLOSURE OR UNAUTHORISED USE
6.02 Recipient agrees to use reasonable care, but in no event no less than
the same degree of care that it uses to protect its own confidential and
proprietary information of similar importance, to prevent the unauthorised
use, disclosure, publication or dissemination of Confidential Information.
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Recipient agrees to accept Discloser's Confidential Information for the sole
purpose of carrying out its obligations under this Agreement. Recipient
further agrees that:
(a) Recipient will not to use Confidential Information otherwise for its own
or any third party's benefit without the prior written approval of an
authorised representative of Discloser in each instance; and
(b) except in connection with carrying out its obligations under this
Agreement, neither Recipient nor any of its directors, officers,
employees, subcontractors, consultants or other associates will carry on
any business activities utilizing Discloser's Confidential Information;
For the purposes of this section, the entry by ACS or any of its directors,
officers, employees, subcontractors, consultants or other associates into an
agreement with an Sideware Client to provide the Sideware Client with
outsourced customer service will constitute an unauthorized utilization of
Sideware Confidential Information by ACS unless such agreement is expressly
authorized in writing by Sideware, notwithstanding the fact that the Sideware
Client's Customer Service Contract may have expired or been terminated.
COMPULSORY DISCLOSURE EXCEPTED
6.03 Section 6.02 notwithstanding, Recipient may disclose Confidential
Information if required by any judicial or governmental request, requirement
or order; provided that Recipient will take reasonable steps to give
Discloser sufficient prior notice in order to contest such request,
requirement or order by notifying Discloser of such request.
DERIVATIVES BELONG TO DISCLOSER
6.04 All Confidential Information, and any Derivatives thereof, whether
created by Discloser or Recipient, remains the property of Discloser and no
license or other rights to Confidential Information is granted or implied
hereby other than as expressly set out in this Agreement. For purposes of
this Agreement, "Derivatives" means:
(a) for copyrightable or copyrighted material, any translation, abridgement,
revision or other form in which an existing work may be recast,
transformed or adapted;
(b) for patentable or patented material, any improvement thereon; and
(c) for material which is protected by trade secret, any new material
derived from such existing trade secret material, including new
material which may be protected by copyright, patent and/or trade
secret.
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INFORMATION RELATING TO INTERNAL PROCEDURES
6.05 Discloser acknowledges that information and documentation created by
Recipient in the course of carrying out this Agreement which relate to
Recipient's internal processes and procedures in general shall be owned by
Recipient and may be used by Recipient and its affiliated companies to
facilitate delivery of similar services to other customers.
LIMITED WARRANTY
6.06 Discloser warrants that it has the right to disclose the Confidential
Information to Recipient. Otherwise, all information is provided "AS IS" and
without any warranty, express, implied or otherwise, regarding its accuracy
or performance. Recipient will return all tangible Confidential Information,
including but not limited to all computer programs, documentation, notes,
plans, drawings, and Copies thereof, to Discloser immediately upon
Discloser's written request.
COMPETITION PERMITTED
6.07 Subject to section 6.09, sections 6.01 to 6.06 shall not be construed
to prevent either party from:
(a) entering into agreements with a similar purpose or similar terms to this
Agreement with third parties;
(b) engaging in any activities with respect to competitive products or
services;
(c) independently developing any materials, products or services which are
similar to those of either party irrespective of their similarity to any
materials, products or services delivered under this Agreement; or
(d) using data processing techniques, ideas, and other know-how gained
during the performance of this Agreement in the furtherance of its
business, to the extent that this does not result in the unauthorised
disclosure or use of Confidential Information or unauthorised use of
any Intellectual Property Right of the other party.
TERM
6.08 Recipient's duty to protect Discloser's Confidential Information as
set out in sections 6.01 - 6.07 expires ten years from the date of disclosure
of Confidential Information or ten years from the date of termination of this
Agreement (including any renewal of this Agreement), whichever is later. For
greater certainty, however, the ten year term set out in this section shall
not apply to the obligation of ACS to protect proprietary technical
information relating to Xx. Xxxx as set out below, which obligations shall be
perpetual.
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PROPRIETARY RIGHTS IN XX. XXXX
6.09 ACS acknowledges that Sideware is the sole owner of all copyright,
patent rights, moral rights, and other Intellectual Property Rights in Xx.
Xxxx. ACS agrees that:
(a) ACS will not utilize Xx. Xxxx for any purpose other than providing ACS
Services for Sideware Clients pursuant to this Agreement;
(b) ACS may not reverse engineer, decompile, or disassemble Xx. Xxxx, except
and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation;
(c) unless express authorization is obtained from Sideware through a
separate agreement, ACS may not re-sell, rent, lease, or lend Xx. Xxxx;
(d) unless express authorization is obtained from Sideware through a
separate agreement, ACS may not assign, transfer, or sub-license any
license granted pursuant to this Agreement;
(e) ACS does not by this Agreement acquire any form of ownership interest or
Intellectual Property Right in Xx. Xxxx, other than the license rights
expressly granted pursuant to this Agreement;
(f) ACS will hold in strict confidence, and will not disclose to any third
party, any technical information provided to ACS by Sideware or any
agent of Sideware relating to Xx. Xxxx; and
(g) all rights in respect of Xx. Xxxx which are not expressly granted to ACS
pursuant to this Agreement are reserved to Sideware.
TRADEMARKS
6.10 Except where expressly stated, this Agreement does not grant to either
ACS or Sideware any rights in connection with any trademarks or trade names
of the other.
INJUNCTIVE RELIEF
6.11 Each party acknowledges that a violation of this Article 6 may cause
irreparable harm to the other party for which no adequate remedy in damages
exists, and each party therefore agrees that, in addition to any other
remedies available, a party will be entitled to seek equitable remedies,
including without limitation injunctive relief, to enforce the nondisclosure
and non-competition obligations set forth in this Article 6. Without
limiting the generality of the foregoing, each party agrees that a party
seeking to enforce the obligations set out in this Article 6 shall be
entitled to obtain interim, interlocutory, and permanent injunctive relief
without having
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to prove irreparable harm, without regard to the balance of convenience, and
without having to post a bond.
7. REVIEW MEETINGS AND DISPUTE RESOLUTION
APPOINTMENT OF CONTACTS
7.01 Sideware and ACS shall each appoint a person (the "Contact") of
suitable experience to be its single interface and point of initial contact
for the duration of the Agreement.
PARTIES TO MEET
7.02 The parties, including the Contacts, will meet regularly at mutually
agreed times and locations to discuss issues arising in connection with
performance of this Agreement by Sideware and ACS.
CONTACTS TO MEET
7.03 In the event there is an issue which cannot be resolved at these
review meetings, either party may request that their Contacts meet separately
to resolve the issue.
DISPUTE RESOLUTION
7.04 As the final step in the dispute resolution process and prior to
either party giving notice of termination for cause as described in section
8.02, Sideware and ACS will each designate another corporate executive who
will meet to attempt to resolve the issue.
8. TERM AND TERMINATION
TERM
8.01 This Agreement shall commence on the date set out at the beginning of
this Agreement and continue for a term of one year. At the end of the
initial term, this Agreement will be automatically renewed for additional one
year terms unless either party gives 60 days written notice of cancellation
prior to the end of the initial term or the end of any additional one year
term.
TERMINATION FOR BREACH
8.02 Except for non-payment by Sideware, either party may terminate this
Agreement by written notice for material breach provided:
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(a) the dispute resolution process set out in Article 7 has been completed
and has failed to resolve the issue;
(b) the terminating party thereafter gave 30 days written notice to the
other party requiring the other party to rectify its material breach;
and
(c) the other party failed to rectify its material breach within 30 days of
receiving the notice specified in subsection (b).
In the event of non-payment by Sideware, ACS may give 30 days written notice
after payment was due and terminate immediately if payment is not made by the
end of the 30 day notice period. For purposes of this section a bona fide
disagreement between Sideware and ACS as to any amount owing by Sideware to
ACS shall not constitute non-payment by Sideware.
EXCEPTION
8.03 For purposes of section 8.02 ACS shall not be in material breach if
its failure to perform hereunder is due to problems caused by Xx. Xxxx,
Sideware or Sideware Client's data, by applications or other software owned
or licensed by Sideware or Sideware Clients, by hardware failures for
hardware not maintained by ACS or other causes beyond ACS's control.
TERMINATION FOR INSOLVENCY
8.04 If either party is adjudged bankrupt by a court of competent
jurisdiction, commences proceedings for a dissolution or winding up of its
affairs, seeks the protection of any debtors' relief legislation or has a
receiver or receiver-manager of its assets appointed, such event shall be
deemed to be a breach of this Agreement, the other party may terminate this
Agreement immediately by written notice to the party in breach.
CONSEQUENCES OF TERMINATION
8.05 Forthwith upon termination of this Agreement:
(a) Sideware shall cease entering into any new Customer Service Contracts;
(b) Sideware shall use diligent efforts to procure an alternate source for
the services being rendered by ACS in respect of the Customer Service
Contracts then in force;
(c) ACS will cooperate with Sideware to ensure as orderly a transition as
possible from ACS to any alternate service provider arranged by Sideware
in respect of those Customer Service Contracts then in force (such
cooperation to include, without limitation, facilitating relocation of
Sideware-owned equipment and software from an ACS site to a new Sideware
or vendor location); and
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(d) until Sideware is able to procure an alternate source for the services
being provided by ACS, ACS will continue to provide ACS Services in
respect of those Customer Service Contracts then in force.
CONDITIONS PRECEDENT
8.06 In the event that this Agreement is terminated by ACS for non-payment by
Sideware, the obligations of ACS as set out in subsections 8.05(c), and (d)
shall be conditional upon:
(a) Sideware's prior payment of all amounts then due and owing to ACS as of
the date of termination of this Agreement; and
(b) Sideware providing reasonable security for payment for any ACS Services
to be provided subsequent to termination of this Agreement pursuant to
subsection 8.05(d).
For purposes of this section a bona fide disagreement between Sideware and
ACS as to any amount owing by Sideware to ACS shall not constitute
non-payment by Sideware.
RETURN OF XX. XXXX
8.07 Upon the termination or expiry of this Agreement and completion of any
ACS Services to be provided pursuant to section 8.05(d), ACS shall:
(a) cease using Xx. Xxxx; and
(b) forthwith certify to Sideware that ACS has destroyed or has returned
all Copies of Xx. Xxxx to Sideware.
The requirement of subsection (b) applies to Copies in all forms, partial and
complete, in all types of media and computer memory, and whether or not
modified or merged into other materials.
9. INDEMNIFICATION AND LIMITATION OF DAMAGES
INDEMNIFICATION BY SIDEWARE
9.01 Sideware shall defend, indemnify, and hold harmless ACS from and
against any claims by a Sideware Client relating to (i) defects or errors in
the performance of Xx. Xxxx, other than as a result of changes or
modifications made to Xx. Xxxx by anyone other than Sideware, or (ii) a
breach by Sideware of the Client's Customer Service Contract.
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INDEMNIFICATION BY ACS
9.02 ACS shall defend, indemnify, and hold harmless Sideware from and
against any claims by third parties relating to (i) the ACS Services provided
or to be provided by ACS, its agents, or its employees; or (ii) any
statements, actions, or services of ACS not expressly authorized by this
Agreement.
CONDITIONS PRECEDENT TO INDEMNIFICATION
9.03 The foregoing indemnities are conditional on (i) prompt written notice
by the party seeking indemnification; (ii) cooperation in the defense of the
claim, demand, or action; and (iii) the obtaining of prior written approval
by the indemnifying party of any settlement or offer of settlement.
NO RECOVERY FOR CONSEQUENTIAL DAMAGES
9.04 EXCEPT FOR:
(A) THE EXPRESS RIGHTS OF INDEMNIFICATION SET OUT IN SECTIONS 9.01 AND 9.02;
OR
(B) ANY LIABILITY FOR BREACH OF ANY PROVISION OF ARTICLE 6 OR SECTION 8.07;
(TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR
LOSS OF PROFITS, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF
PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF
REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS
WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE PERFORMANCE OF THIS
AGREEMENT, OR ACTS OR OMISSIONS IN RELATION THERETO, EVEN IN THE EVENT OF
FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR
BREACH OF WARRANTY, AND EVEN IF THE SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
LIMITATION ON DAMAGES RECOVERABLE BY SIDEWARE
9.05 In addition to the limitations set out in section 9.04, in the event
of ACS's failure to comply with section 2.05 in providing services in respect
of any Customer Service Contract, the damages payable by ACS in respect of
such breach shall be limited to the greater of:
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(a) the damages payable by Sideware to any third party resulting from such
breach; or
(b) the total amount paid by Sideware to ACS for ACS Services rendered in
connection with such Customer Service Contract.
10. NOTICES
NOTICES TO BE IN WRITING
10.01 No notice, approval, acceptance, waiver, consent or other
communication pursuant to this Agreement shall be valid unless made in
writing.
MANNER OF GIVING NOTICE
10.02 All notices, requests, demands and other communications hereunder
shall be in writing, shall be delivered by hand or sent by telecopy, and
shall be deemed to have been duly given if delivered by hand or telecopied:
If to Sideware:
Attn: Mac Allan
Sideware Systems Inc.
Suite 102 - 000 Xxxx 0xx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Fax No: 000-000-0000
If to ACS:
Attn: Xxx Xxxx
Advanced Contact Solutions, Inc.
0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx
XXX 00000
Fax No: 000-000-0000
and shall be deemed to have been received, if delivered by hand, on the date
of delivery, or if telecopied and if the sender has machine confirmation that
the fax was transmitted to the correct fax number, on the business day of the
transmission if the transmission occurs before or during the recipient's
normal business hours, or on the business day next following the date of
transmission, if the transmission occurs after the recipient's normal
business hours.
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CHANGE OF ADDRESS
10.03 Either party may change the address or designated representative to
which notices from the other party must be sent by providing the other party
with written notice of such change before the new address is to become
effective.
11. MISCELLANEOUS
JURISDICTION OF BRITISH COLUMBIA COURTS
11.01 Except as set out herein, Sideware and ACS affirm that it is the
intention of the parties that all civil or criminal actions, all suits or
special proceedings concerning the relationships of the parties, the
interpretation of and/or validity of this Agreement, or any suit or
proceedings to determine any right, privilege or remedy under this Agreement,
or any suit or proceeding to determine any other civil or criminal cause of
action between the parties hereto shall be commenced, prosecuted, and tried
exclusively in the courts of competent jurisdiction in the Province of
British Columbia, Canada, and both parties hereby attorn to such
jurisdiction. Notwithstanding the foregoing, this section shall not prevent
any party from commencing legal proceedings in another jurisdiction for the
purpose of protecting such party's Confidential Information or Intellectual
Property Rights, if proceedings in such other jurisdiction will provide more
effective protection for such rights.
NON-WAIVER
11.02 Either party's lack of enforcement of any provision in this Agreement
in the event of a breach by the other shall not be construed to be a waiver
of any such provision and the non-breaching party may elect to enforce any
such provision in the event of any repeated or continuing breach by the other.
ENTIRE AGREEMENT
11.03 This Agreement together with the Schedules hereto is the exclusive
statement of the entire agreement between Sideware and ACS, and supersedes
all prior oral or written representations or agreements between the parties,
as to the subject matter hereof. Any modifications of this Agreement must be
in writing and signed by both parties.
ILLEGALITY
11.04 If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
NO ASSIGNMENT
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11.05 This Agreement may not be assigned by either party without the prior
written consent of the other party, which consent may be unreasonably
withheld.
COUNTERPART EXECUTION
11.06 This Agreement may be executed simultaneously in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
HEADINGS
11.07 The headings of this Agreement have been included for the convenience
of the parties and are not part of the Agreement, nor are the headings to be
used to alter or interpret the terms hereof.
SURVIVAL OF PROVISIONS
11.08 The provisions of Articles 6 and 10 survive termination of this
Agreement.
ENFORCEABILITY
11.09 If any restriction as to capacity, responsibility, activity, period
or geographic area imposed on a Party by this Agreement is finally determined
by a court of competent jurisdiction to be unenforceable (the "Unenforceable
Restriction"), and so often as the same shall occur, such Party agrees that
upon written notice from the other specifying for inclusion in this Agreement
of fewer capacities or responsibilities, or any activity of lesser scope or
of a lesser time or geographic area than now contained herein (the "Lesser
Restriction"), that this Agreement shall be deemed to be amended by the
substitution of the Lesser Restriction for the Unenforceable Restriction,
with retroactive effect to the date of this Agreement.
SCHEDULES
11.10 The following Schedules are attached to and incorporated into this
Agreement:
Schedule "A" - Customer Service Contract
Schedule "B" - Fee Schedule
GOVERNING LAW
11.11 This Agreement and all matters arising hereunder shall be governed by,
construed and enforced in accordance with the laws of the Province of British
Columbia, Canada.
CURRENCY
11.12 All sums of money to be paid or calculated pursuant to this Agreement
shall be paid or calculated in currency of the United States of America
unless otherwise expressly stated.
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SIDEWARE SYSTEMS INC. ADVANCED CONTACT SOLUTIONS, INC.
By: "signed" By: "signed"
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Name: Xxxx Xxxxx Name: Xxxxxxx X. Bone
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Title: CEO Title: President
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