EXHIBIT 10.7
MASTER SERVICES AGREEMENT
SPORG/KPMG CONSULTING
THIS MASTER SERVICES AGREEMENT ("Agreement"), dated as of August 31,
2001,(the "Effective Date"), is between Blade Internet Ventures Inc., a Nevada
corporation having its principal place of business at 000-0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx XX X0X 0X0 and doing business as XXXXX.xxx ("Client"), and
KPMG CONSULTING LP, an Ontario limited partnership with an office at Waterpark
Place, Suite 1100, 00 Xxx Xxxxxx, Xxxxxxx Xxxxxxx X0 J 2X9 ("Consultant").
WHEREAS, Client desires to retain Consultant to perform certain
management consulting services for Client; and
WHEREAS, Consultant desires to perform such consulting services for
Client.
NOW THEREFORE, in consideration of the foregoing premises, and the
mutual covenants and agreements set forth herein, the parties hereto
agree as follows:
1. PURPOSE OF ENGAGEMENT.
(a) Client agrees to retain Consultant to perform the
consulting services for Client, on a task by task basis (the "Services"), and
Consultant agrees to perform the Services on the terms and subject to the
conditions and assumptions set forth in this Agreement. During the term of this
Agreement, Client and Consultant will develop and agree upon statements of work
defining the Services and a description of the deliverables (the "Deliverables")
to be provided by Consultant, Consultant's compensation, additional terms and
conditions, if any, applicable to a particular engagement and such other details
as the parties deem appropriate (each a "Statement of Work"). A Statement of
Work may provide a time schedule for completion of the Services required
thereunder (the "Schedule") and specifications for Deliverables to be provided
thereunder (the "Specifications"). Statements of Work which are from time to
time agreed upon shall reference this Agreement and shall be executed by the
parties and attached hereto and shall form a part hereof.
(b) Each party shall designate a "Project Manager" who
shall be the principal point of contact between the parties for all matters
relating to an engagement. Each Statement of Work shall contain an initial
designation of a Project Manager for each party. A party may designate a new
Project Manager by written notice to the other party.
(c) Unless otherwise provided in a Statement of Work,
Consultant shall provide the Services at Client's facility identified in the
applicable Statement of Work. When Services are provided at a Client facility,
Client shall provide appropriate work space and other facilities such as
computer support consistent with the requirements of the Services to be provided
under the Statement of Work. Consultant shall cause its personnel at Client's
facility to
comply with (i) Client's safety and security rules and other rules applicable to
those working in the facility, and (ii) Client's commercially reasonable
policies concerning access to and security of any Client computer system to
which Consultant may have access; provided, that Client has provided Consultant
with copies of such rules and policies.
(d) Either party may request changes that affect the
scope or duration of the Services relating to any Statement of Work, including
changes in the Specifications and changes in the Deliverables to be delivered.
Either party also may request a change in the Schedule without changing the
scope of the Services relating to the applicable Statement of Work. If either
party requests any such change, Consultant shall notify Client if it believes
that the requested change will require an adjustment either in the fees to be
paid to Consultant with respect to the applicable Statement of Work and/or to
the applicable Schedule. The parties shall then negotiate in good faith a
reasonable and equitable adjustment in the applicable fees, Schedule and
Specifications. Consultant shall continue work pursuant to the existing
Statement of Work, and shall not be bound by any change requested by either
party, until such change has been accepted in writing by the other party. In the
case of an accepted change involving a Statement of Work being performed at a
fixed price, additional Services that Consultant provides as a result of such
change will be billed on a time and materials ("T&M") basis at Consultant's
standard rates, unless expressly agreed otherwise by the parties.
(e) The obligations of Client in connection with a
particular engagement shall be set forth in the applicable Statement of Work.
Client agrees to perform such obligations in accordance with, and subject to,
such Statement of Work. Client acknowledges that when a Statement of Work
provides that Client's personnel are to work with Consultant's personnel in
connection with an engagement, Client's failure to assign Client personnel
having skills commensurate with their role with respect to such engagement could
adversely affect Consultant's ability to provide the Services. To the extent
that Client's failure to assign such personnel, or other failure to perform its
obligations under a Statement of Work, interferes with Consultant's ability to
perform its obligations in accordance with the Specifications, milestone dates,
if any, shall be adjusted accordingly and, for fixed fee engagements, additional
Services required shall be billed at Consultant's standard rates on a T&M basis,
unless otherwise agreed between the parties.
(f) Client acknowledges and agrees that Consultant may,
in performing its obligations pursuant to this Agreement, be dependent upon or
use data, material, and other information furnished by Client without any
independent investigation or verification thereof, and that Consultant shall be
entitled to rely upon the accuracy and completeness of such information in
performing the Services. Consultant, in performing the Services, will be making
recommendations and providing advice, but all decisions as to implementing such
advice and recommendations shall be made by and be the sole responsibility of
the Client.
(g) Client undertakes to supply or make available all
information and material that Consultant may reasonably request for purposes of
providing the Services.
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2. TERM. The term of this Agreement shall begin on the date
hereof and shall continue until terminated by either party pursuant to Section 6
hereof.
3. CONSULTANT'S COMPENSATION.
(a) During the term of this Agreement, Client agrees to
compensate Consultant as set forth in each Statement of Work. Consultant may be
compensated on a time and materials or fixed price basis if provided for in the
Statement of Work. In addition, Client shall reimburse Consultant for its actual
out-of-pocket expenses as reasonably incurred by Consultant in connection with
its performance of the Services.
(b) Upon the execution of a Statement of Work, an
"initial payment" shall become due and shall be comprised of (i) a percentage of
the anticipated total fees under the Statement of Work and (ii) any anticipated
significant out-of-pocket expenses such as license fees or other fees related to
software and/or hardware procurements; each as set forth in the "Payment of
Fees" section of the relevant Statement of Work. Consultant shall thereafter
xxxx Client every month for time and materials engagements or at agreed upon
milestones for fixed price engagements, as set forth in the relevant Statement
of Work, with any credit balance to be applied to the final invoice or refunded,
as the case may be. Client shall pay as set forth in the SOW. Any past due
amount is subject to a late charge in the amount of one and a half (1.5) percent
per month or the maximum amount permissible by law, whichever is less.. Without
limiting its rights or remedies hereunder, and notwithstanding the parties'
rights under Section 6 hereof, Consultant reserves the right to immediately
suspend or terminate Services in the event of Client's failure to make timely
payment.
(c) All fees, expenses and other charges payable to
Consultant hereunder do not include any sales, goods and services, use, excise,
value added or other applicable taxes, tariffs or duties, payment of which shall
be the sole responsibility of Client (excluding any applicable taxes based on
Consultant's net income or taxes arising from the employment or independent
contractor relationship between Consultant and its personnel). In the event that
such taxes, tariffs or duties are assessed against Consultant, Client shall
reimburse Consultant for any such amounts paid by Consultant or, prior to the
payment of such amounts by Consultant, provide Consultant with valid tax
exemption certificates with respect thereto. If Client is required by law to
make any tax deduction, withholding or payment from any amount paid or payable
by Client to Consultant under this Agreement, the amount paid or payable to
Consultant shall be grossed-up to the extent necessary to ensure that Consultant
receives and retains, free of liability, a previously agreed upon net amount
equal to the amount that Consultant would have received and retained had no tax
deduction or withholding been made.
(d) Consultant shall maintain reasonably complete and
accurate records of the fees and expenses charged to Client with respect to the
Services under each Statement of Work. Except as otherwise provided under
applicable law, Consultant shall retain such records for two years after the
completion or termination of the Services to which they pertain and shall make
such records available to Client during normal business hours upon reasonable
advance written notice. Consultant shall cooperate in any audit of such records
that Client may undertake; provided, however, that: (i) any such audit shall be
at Client's sole expense; (ii) no such audit may
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occur more than once in any twelve (12) month period; and (iii) Consultant shall
have the right to approve the auditor used for any such audit, with such
approval not to be unreasonably withheld.
4. OWNERSHIP OF MATERIALS RELATED TO SERVICES; ACCEPTANCE.
(a) The parties agree, subject to the terms of this
Agreement, that upon full and final payment by Client for the Deliverables
required by a Statement of Work and of all sums owed to Consultant in connection
with the performance of the Services, all documents, designs, inventions,
computer programs, computer systems, data, computer documentation and other
tangible materials authored or prepared by Consultant for Client as the
Deliverables required by a Statement of Work, but expressly excluding any
Consultant's Information as defined below, shall become the sole and exclusive
property of Client and Consultant undertakes to assign to Client, upon such full
and final payment, all intellectual property rights in such Deliverables.
Consultant further agrees upon such full and final payment, to waive in favor of
Client any and all moral rights that it may have in the Deliverables. Consultant
agrees to render, at Client's sole cost and expense, all reasonably required
assistance to Client to protect the rights herein above described.
(b) Client acknowledges that Consultant provides
consulting and development services to other clients and agrees that nothing in
this Agreement shall be deemed or construed to prevent Consultant from carrying
on such business. In particular, Client agrees that, notwithstanding anything to
the contrary set forth herein: (i) Consultant shall have the right to retain a
copy of each of the Deliverables for its records; (ii) as part of Consultant's
provision of the Services hereunder, Consultant may utilize proprietary works of
authorship, pre-existing or otherwise, that have not been created specifically
for Client, including without limitation software, methodologies, templates,
flowcharts, architecture designs, tools, specifications, drawings, sketches,
models, samples, records and documentation, as well as copyrights, trademarks,
service marks, ideas, concepts, know-how, techniques, knowledge or data, and any
derivatives thereof, which originate from or have been, developed or purchased
by Consultant or by third parties under contract to Consultant (all of the
foregoing, collectively, "Consultant's Information"); (iii) Consultant's
Information and Consultant's administrative communications, records, files and
working papers relating to the Services shall remain the sole and exclusive
property of Consultant; and (iv) Client hereby grants to Consultant a perpetual,
royalty-free, irrevocable, worldwide, non-exclusive license to create, use and
sublicense derivative works derived from the Deliverables, so long as in doing
so Consultant does not use any trade-marks, logos or Confidential Information of
Client or disclose Client's identity or Confidential Information (as defined
hereinafter) of Client.
(c) To the extent that Consultant incorporates any of
Consultant's Information into the Deliverables, and effective upon full and
final payment by Client for the Deliverables required by a Statement of Work and
of all sums owed to Consultant in connection with the performance of the
Services, Consultant hereby grants to Client a perpetual, royalty-free,
irrevocable, worldwide, non-exclusive, transferable license to use, execute,
reproduce, modify, revise, alter, translate, merge into other systems or
software, display, perform, distribute internally or externally, sell copies of
and prepare derivative works from the Consultant's Information (including both
source and object code in respect of any software forming part of Consultant's
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Information) as an integral part of the Deliverables provided by Consultant
pursuant to a Statement of Work as these Deliverables may be modified, revised,
altered, translated, merged, re-cast, transformed or adapted from time to time,
and to authorize and sublicense others from time to time to do any of the
foregoing , subject to the same terms and conditions hereunder; PROVIDED THAT
nothing in this Section 4 shall be deemed to permit Client and/or its
sublicensees to sublicense or otherwise alienate the Consultant's Information as
a discrete entity or entities, separate and apart from the Deliverables
delivered by Consultant pursuant to a Statement of Work as these Deliverables
may be modified, revised, altered, translated, merged, re-cast, transformed, or
adapted from time to time.
(d) Any assignment of ownership rights, license rights or
waiver of moral rights in the Deliverables pursuant to this Section 4 shall be
deemed to occur at the conclusion and fulfillment of the particular Statement of
Work defining such Deliverables and upon full and final payment by Client for
the Deliverables required by a Statement of Work and of all sums owed to
Consultant in connection with the performance of the Services, of Consultant's
compensation as provided under Section 3 hereof and is expressly conditioned on
Client's compliance with all material terms of this Agreement and such Statement
of Work. In the event Client refuses or otherwise fails to remit to Consultant
any portion of fees or expenses due under such Statement of Work, no assignment,
license or waiver of any rights in the Deliverables shall occur in favor of
Client and Consultant shall retain all intellectual property rights, including
moral rights, in such Deliverables.
(e) When Consultant has completed the Services under a
Statement of Work, including all required Deliverables, Client, with
Consultant's cooperation and assistance, may conduct acceptance tests to verify
whether the Deliverables substantially conform to the applicable Specifications.
Client shall have fifteen (15) days after completion of the applicable Services,
or such other period as may be mutually agreed upon as set forth in the
applicable Statement of Work (the "Acceptance Period"), to test the
Deliverables. If Client notifies Consultant in writing of any material
non-conformities with the Specifications in any of the Deliverables
(collectively "Non-conformities") within the applicable Acceptance Period,
Consultant promptly shall use reasonable efforts to correct such
Non-conformities at its own expense and notify Client when the corrections are
complete. Client then shall have the right to test the corrected Deliverables,
together with any other Deliverables, as upon the initial completion of the
applicable Services. If Client does not notify Consultant in writing of any
material Non-conformities within the Acceptance Period or if Client uses the
Deliverables in a production environment or otherwise in connection with
Client's conduct of its business, Client shall be deemed to have accepted the
Deliverables. Should Consultant fail to correct a Non-conformity within thirty
(30) days of receiving written notice of it, Client may terminate the Services
under the applicable Statement of Work and Consultant's maximum liability to
Client for failing to correct such Nonconformity shall be to refund the fees and
expenses paid by Client to Consultant for the portion of the Deliverables that
are Non-conforming.
5. CONSULTANT'S LIMITED WARRANTIES AND WARRANTY DISCLAIMER.
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(a) Consultant warrants to Client that Consultant's
performance of the Services called for by this Agreement, to its knowledge, does
not and shall not violate any applicable law, rule, or regulation;
(b) Consultant warrants to Client that Consultant has
full authority and sufficient rights, except for rights respecting programs,
data and materials provided by Client or identified by Consultant as furnished
to Client by third-party vendors, to grant and convey the rights granted to
Client under Section 4 hereof;
(c) Consultant warrants to Client that, for a period of
ninety calendar (90) days following its acceptance by Client (the "Warranty
Period"), any software (and associated documentation) developed by Consultant
for Client hereunder shall conform to the Specifications applicable thereto in
all material respects. In the event Client notifies Consultant in writing of a
breach of the foregoing warranty during the Warranty Period, Consultant shall
promptly use reasonable efforts to remedy such breach at no additional expense
to Client. In the event that Consultant, after using reasonable efforts, is
unable to remedy such breach, Consultant's sole liability to Client in
connection with such breach shall be to refund the amount paid by Client for
such software. Notwithstanding the foregoing, Consultant shall have no
obligation or liability to Client under this warranty to the extent that a
nonconformity results from: (i) Client's use of such software in a manner
inconsistent with the documentation therefor; (ii) alterations or modifications
made to such software by Client without the written approval of Consultant;
(iii) defects in any third party software; (iv) malfunctions of Client computer
hardware or system environment occurring through no fault of Consultant; or (v)
storage, operation, use or maintenance of such software in a manner or an
environment inconsistent with the specifications and instructions of Consultant
at the time such software is delivered to Client. Consultant does not warrant
that any of the software provided by Consultant will meet Client's requirements
or that the operation of any such software will be uninterrupted and/or
error-free.
(d) THE EXPRESS WARRANTIES IN THIS AGREEMENT SHALL BE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, INTEROPERABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
6. TERMINATION.
(a) At any time that there is no uncompleted Statement of
Work outstanding, either party may terminate this Agreement for any or no reason
upon fifteen (15) days advance written notice to the other.
(b) In addition, either party may terminate this
Agreement or any outstanding Statement of Work, upon thirty (30) days written
notice to the other party, in the event such other party breaches a material
term of this Agreement or any Statement of Work and such breach remains uncured
at the end of such thirty (30) day period.
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(c) Upon termination of this Agreement in accordance with
Sections 6(a) or 6(b) above, Client shall pay Consultant all fees and expenses
which have been earned or incurred in connection with the performance of the
Services through the effective date of such termination.
7. LIABILITIES AND REMEDIES FOR INFRINGEMENT.
(a) Consultant hereby agrees to indemnify, hold harmless
and defend Client from and against any and all claims, liabilities, losses,
expenses (including reasonable attorneys' fees), fines, penalties, taxes or
damages (collectively "Liabilities") asserted against Client by a third party to
the extent such Liabilities result from the claim by a third party that the
Deliverables infringe upon any third party's trade secret, trademark, service
xxxx, copyright or patent issued or in existence as of the date of this
Agreement (collectively, an "Intellectual Property Right"); provided, that
Client: (i) promptly notifies Consultant of any third party claim subject to
indemnification hereunder, (ii) gives Consultant the right to control and direct
the preparation of a defense, the defense and any settlement of any such claim,
(iii) gives full cooperation to Consultant for the defense of same, and (iv)
complies with Consultant's direction to cease any use of the Deliverables which,
in Consultant's sole judgment, is likely to be ruled an infringement of a third
party's Intellectual Property Right. The foregoing provisions shall not apply to
any infringement arising out of: (i) use of the Deliverables other than in
accordance with applicable documentation or instructions supplied by Consultant
or for other than Client's internal purposes; (ii) any alteration, modification
or revision of the Deliverables not expressly authorized in writing by
Consultant; (iii) Client's failure to use or implement corrections or
enhancements to the Deliverables made available by Consultant; (iv) Client's
distribution, marketing, or use of the Deliverables for the benefit of third
parties; or (iii) the combination of the Deliverables with materials not
supplied by Consultant.
(b) In case any of the Deliverables or any portion
thereof is held, or in Consultant's reasonable opinion is likely to be held, in
any such suit to constitute infringement of a third party's Intellectual
Property Right, Consultant may within a reasonable time, at its option, either:
(i) secure for Client the right to continue the use of such infringing item; or
(ii) replace, at Consultant's sole expense, such item with a substantially
equivalent non-infringing item or modify such item so that it becomes
non-infringing. In the event Consultant is, in Consultant's reasonable
discretion, unable to either procure the right to continued use of the allegedly
infringing item or replace the allegedly infringing item as provided in clauses
(i) and (ii) of the immediately preceding sentence, the allegedly infringing
item shall be returned to Consultant, and Consultant's maximum liability for
such infringement shall be to refund to Client the amount paid to Consultant for
such item.
(c) The provisions of this Section 7 state Consultant's
entire liability and Client's sole and exclusive remedies with respect to any
infringement or claim of infringement.
8. LIMITATIONS OF LIABILITY; INDEMNIFICATION BY CLIENT.
(a) IN NO EVENT SHALL CONSULTANT BE LIABLE TO CLIENT FOR
DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO CONSULTANT'S PERFORMANCE OR
NONPERFORMANCE OF SERVICES UNDER A STATEMENT OF
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WORK IN EXCESS OF THE AMOUNT OF FEES PAID TO CONSULTANT FOR THE PERFORMANCE OF
SUCH SERVICES PURSUANT TO SUCH STATEMENT OF WORK.
(b) NEITHER PARTY, NOR THEIR RESPECTIVE MEMBERS, AGENTS,
EMPLOYEES, OFFICERS AND DIRECTORS, SHALL HAVE ANY LIABILITY TO THE OTHER PARTY
FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL
DAMAGES, COSTS, EXPENSES OR LOSSES (INCLUDING WITHOUT LIMITATION, LOST PROFITS
AND OPPORTUNITY COSTS) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
(c) Client hereby agrees to indemnify, hold harmless and
defend Consultant and any member, director, officer, employee or agent thereof,
from and against all Liabilities incurred by or asserted against Consultant or
any of the above persons in connection with any third party claim to the extent
such Liabilities result from : (i) the use of the Deliverables other than in
accordance with applicable documentation or instructions supplied by Consultant
or for other than Client's internal purposes; (ii) any altered, modified or
revised version of the Deliverables that was not expressly authorized in writing
by Consultant; (iii) Client's failure to use or implement corrections or
enhancements to the Deliverables made available by Consultant; (iv) Client's
distribution, marketing, or use of the Deliverables for the benefit of any third
party; or (v) the combination of the Deliverables with materials not provided by
Consultant. Consultant agrees to (i) promptly notify Client of any third party
claim subject to indemnification hereunder, (ii) give Client the right to
control and direct, at Client's expense, the preparation of a defense, the
defense, and any settlement of any such claim on terms reasonably acceptable to
Consultant; and (iii) give full cooperation to Client, at Client's expense, for
the defense of same.
(d) In the event that Client provides Consultant with
access to software, specifications, content or other Client-provided materials
("Client Materials"), Client hereby agrees to indemnify, hold harmless and
defend Consultant from and against any and all Liabilities incurred by or
asserted against Consultant in connection with any third party claim relating to
the use by Consultant of the Client Materials, including but not limited to, a
third party claim that the Client Materials infringe upon such third party's
trade secret, trademark, service xxxx, copyright, patent or other intellectual
property rights.
9. CONFIDENTIAL INFORMATION. "Confidential Information" means all
documents, software and documentation, reports, financial or other data,
records, forms, tools, products, services, methodologies, present and future
research, technical knowledge, marketing plans, trade secrets, and other
materials obtained by Consultant and Client from each other in the course of
performing any Services, whether tangible or intangible and whether or not
stored, compiled, or memorialized physically, electronically, graphically, in
writing, or by any means now known or later invented. Confidential Information
includes without limitation records and information and Consultant's Information
(i) that has been marked as proprietary or confidential; (ii) whose confidential
nature has been made known by Client or Consultant; or (iii) that due to its
character and nature, a reasonable person under like circumstances would treat
as confidential. Notwithstanding the foregoing, Confidential Information does
not include information which: (i) is already known to the recipient at the time
of disclosure; (ii) is or becomes publicly known
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through no wrongful act or failure of recipient; (iii) is independently
developed by recipient without benefit of the other party's Confidential
Information; or (iv) is received from a third party which is not under and does
not thereby breach an obligation of confidentiality. Each party agrees to
protect the other party's Confidential Information at all times and in the same
manner as each protects the confidentiality of its own proprietary and
confidential materials, but in no event with less than a reasonable standard of
care. Consultant will deliver to Client all of Client's Confidential Information
other than Consultant's Information licensed to Client pursuant to Section 4,
and all copies thereof (and all other property obtained from or through Client)
when Client requests the same or immediately upon termination of this Agreement,
whichever occurs earlier, except for one copy thereof that Consultant may retain
for its records. Client will deliver to Consultant all of Consultant's
Confidential Information and all copies thereof (and all other property obtained
from or through Consultant) when Consultant requests the same or immediately
upon termination of this Agreement, whichever occurs earlier. Neither party
shall, except with respect to those of its employees with a need to know under
this Agreement, use or disclose to any person, firm or entity any Confidential
Information of the other party without such other party's express, prior written
permission; provided, however, that notwithstanding the foregoing, Consultant
may disclose Confidential Information to the extent that it is required to be
disclosed pursuant to a statutory or regulatory provision or court order. The
confidentiality restrictions and obligations imposed by this Section 9 shall
terminate two (2) years after the expiration or termination of this Agreement.
10. INDEPENDENT CONTRACTOR. Consultant is performing the Services
as an independent contractor and not as an employee of Client and none of
Consultant's personnel shall be entitled to receive any compensation, benefits
or other incidents of employment from Client. Subject to Section 3(c),
Consultant shall be responsible for all taxes and other expenses arising from
the employment or independent contractor relationship between Consultant and its
personnel and the rendition of Services hereunder by such personnel to Client.
Nothing in this Agreement shall be deemed to constitute a partnership, joint
venture, or fiduciary relationship between Client and Consultant, nor shall
anything in this Agreement be deemed to create an agency relationship between
Consultant and Client. Neither Consultant nor Client shall be or become liable
or bound by any representation, act or omission whatsoever of the other.
11. ASSIGNMENT AND SUBCONTRACTING. Neither party shall assign or
transfer this Agreement or any of its obligations hereunder without the other
party's express prior written consent. Notwithstanding the foregoing, Consultant
shall have the right to assign this Agreement without prior consent or approval
of Client to KPMG Consulting's parent or any wholly-owned affiliate and/or to
the successor to substantially all of the assets and business of Consultant.
Consultant shall have the right at any time and without prior consent or
approval of Client to subcontract all or part of the Services and/or
Deliverables to be provided under this Agreement.
12. NOTICES. All notices, requests, demands or other
communications permitted or required hereunder shall be in writing and shall be
by personal delivery, a nationally recognized overnight courier service or
facsimile or electronic transmission, return receipt requested. Notices shall be
deemed given upon the earlier of actual receipt, two (2) days after deposit with
the courier service or receipt by sender of confirmation of facsimile
transmission. Notices shall be sent to the addresses listed below, or to such
other address as either party may specify in writing:
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If to Client:
BLADE INTERNET VENTURES INC.
000-0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx XX X0X 0X0
Attention Xxxx Xxxxxxx
If to Consultant:
KPMG CONSULTING, LP
Waterpark Place, Suite 1100,
00 Xxx Xxxxxx,
Xxxxxxx Xxxxxxx X0 J 2X9
Attention: Xxx Xxxxxx
with a copy to:
KPMG CONSULTING, INC.
KPMG Consulting Legal Department
International Law Counsel
KPMG Tower
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: General Counsel
13. SEVERABILITY; GOVERNING LAW. In the event that any term or
provision of this Agreement shall be held to be invalid, void or unenforceable,
then the remainder of this Agreement shall not be affected, impaired or
invalidated, and each such other term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law. This Agreement
shall be governed by and construed in accordance with the laws of the Province
of Ontario and the federal laws of Canada applicable therein, without regard to
the conflict of laws provisions thereof, and any proceeding between the parties
not subject to arbitration pursuant to Section 20 hereof shall take place in the
Province of Ontario, which shall be the exclusive venue for any such dispute.
However, if this Agreement is executed by the office of Consultant located in
Quebec, this Agreement shall be governed and construed under the laws of the
Province of Quebec, and the federal laws of Canada applicable therein, without
regard to the conflicts of laws provisions thereof. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement.
14. INTEGRATION; ORDER OF PRECEDENCE. This Agreement, including
any Statements of Work entered into pursuant hereto, constitutes the entire
agreement of the parties hereto with respect to its subject matter and
supersedes all prior and contemporaneous representations, proposals,
discussions, and communications, whether oral or in writing. In the event of a
conflict between the provisions of this Agreement and the specific provisions
set forth in a Statement of Work, the provisions of the Agreement shall control,
except to the extent the
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provisions in a Statement of Work expressly provide otherwise. This Agreement
may be modified only in writing and shall be enforceable in accordance with its
terms when signed by each of the parties hereto.
15. NON-SOLICITATION OF EMPLOYEES. Neither party shall, during the
term of this Agreement and for one (1) year after its termination, solicit for
hire as an employee, consultant or otherwise any of the other party's personnel
who have had direct involvement with the Services, without such other party's
express written consent.
16. INSURANCE. Throughout the term of this Agreement, Consultant
shall at its own expense, obtain and maintain the following insurance: (a)
Comprehensive General Liability, with coverage of not less than $1,000,000 per
occurrence and $2,000,000 in the aggregate for bodily injury and property damage
(b) Motor Vehicle Liability insurance for owned, non-owned and hired vehicles,
with limits of not less than $1,000,000 combined single limit for bodily injury
and property damage; (c) Workers' Compensation insurance in the amount required
by statute for all states in which the Services are to be performed when such
states impose a statutory obligation to be so insured (d) Professional Liability
Insurance with limits of not less than $1,000,000 per occurrence, and $2,000,000
in the aggregate. Consultant will endeavor to notify Client in writing of any
material change to its coverage as described herein. Consultant shall furnish
certificates of insurance evidencing coverage or other acceptable evidence of
self-insurance to Client upon request.
17. PRESS RELEASES AND CLIENT LIST REFERENCE. Neither party shall
issue any press release concerning Consultant's work without the other party's
consent. Consultant may identify Client as a client of Consultant (using
Client's name and logo) and generally describe the nature of the Services in
Consultant's promotional materials, presentations, and proposals to current and
prospective clients.
18. INFORMAL DISPUTE RESOLUTION. This Agreement carefully lists
each party's obligations in an effort to minimize disputes and aid in mutually
satisfactory resolution of such disputes. The parties agree to attempt in good
faith to settle any dispute, controversy or claim, whether based on contract,
tort, statute or other legal or equitable theory arising out of or related to
this Agreement (including any amendments or extensions thereto) (collectively, a
"Claim") by way of consultations among the parties, which consultations shall be
initiated upon written notice by either party to the other. For purposes of the
foregoing sentence, Consultant shall be represented in such consultations by the
Project Manager identified in an applicable Statement of Work, and Client shall
be represented by an individual of commensurate authority. If the parties cannot
come to a mutually agreeable resolution of the Claim within ten (10) business
days, then such Claim will be referred to members of the parties' executive
management (each such member a "Representative") for resolution, which referral
shall be evidenced by a written notice from either party to the other (the
"Referral"). For purposes of the foregoing sentence, Consultant's Representative
shall be Xxx Xxxxxx and Client's Representative shall be Xxxx Xxxxxxx. The
parties' Representatives shall meet within five (5) business days of a Referral
to attempt to resolve the Claim. If the Representatives have not met within five
(5) business days of such Referral, or have not reached a mutually agreeable
resolution of the Claim within ten (10) business days after their initial
meeting on the subject of such Claim, then such Claim will, by way of written
notice of
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either party to the other, be submitted to Mediation in accordance with the
provisions of Section 19 hereof. Neither party shall be bound by the provisions
of this Section 18 if the Claim pertains to or arises under Sections 4(a), 4.b),
7, or 9 hereof.
19. MEDIATION. If either party has a Claim against the other party
that has not been resolved pursuant to Section 18 hereof, a written description
of such Claim shall be provided to such other party and a good faith effort to
resolve the problem via non-binding mediation in accordance with the applicable
rules of the American Arbitration Association shall be made by both parties
prior to proceeding to Arbitration or litigation. Each party shall bear its own
costs incurred in such mediation, and the parties shall equally defray the
mediator's fees. Any negotiations pursuant to this Section 19 are confidential,
shall take place for no more than three (3) consecutive days, and will be
treated as compromise and settlement negotiations for purposes of the applicable
rules of evidence. Neither party shall be bound by the provisions of this
Section 19 if the parties' dispute pertains to or arises under Sections 4(a),
4.b), 7, or 9 hereof.
20. ARBITRATION. Any Claim arising out of or relating to this
Agreement, or the breach thereof, shall be referred to and finally resolved by
arbitration in accordance with with either (a) the provisions of Ontario
Arbitration Act, 1991, and regulations thereunder, as amended from time to time
or (b) when the Agreement has been issued and executed by Montreal office of
KPMG Consulting, the provisions of the Book Seven of the Code of Civil Procedure
of the Province of Quebec and regulations thereunder, as amended from time to
time. In any event, the arbitral tribunal shall be composed of three
arbitrators, appointed as follows: each party shall appoint an arbitrator, and
the two arbitrators so appointed shall appoint a third arbitrator who shall act
as president of the tribunal. The place of arbitration shall be Xxxxxxx,
Xxxxxxxx xx Xxxxxxx, Xxxxxx except when the Agreement has been issued and
executed by Montreal office of KPMG Consulting, in which case the place of
arbitration shall be Montreal, Province of Quebec, Canada. The language of the
arbitration shall be English if arbitration is conducted in Toronto and in
French if the arbitration is conducted in Montreal. The arbitration award shall
be final and binding on the parties hereto. In no event shall any arbitration
award provide a remedy beyond those permitted under these Terms and Conditions,
and any award providing a remedy beyond those permitted under these Terms and
Conditions shall not be confirmed, no presumption of validity shall attach, and
such award shall be vacated. Either party may, without waiving any remedy under
this Agreement, seek from any court of competent jurisdiction within the
Province of Ontario, Canada, any interim or provisional relief that such party
deems necessary to protect its Confidential Information and property rights,
including without limitation rights accruing to or secured by such party under
Section 4 hereof, pending the establishment of the arbitral tribunal (or pending
the arbitral tribunal's determination of the merits of the Claim).
21 FORCE MAJEURE. Neither party shall be required to perform any
term, covenant, or condition of this Agreement so long as such performance is
delayed or prevented by force majeure, which shall mean any acts of God, wars,
governmental laws, orders, requirements or actions, enemy or hostile
governmental actions, strikes, lockouts, labor or employment difficulties, civil
commotions, fires, floods, accidents or breakdowns, or any other casualties or
conditions which are beyond the reasonable control of either party and not due
to the fault or negligence of such party. If, as a result of any of these
conditions, either party fails to perform any obligations specified in this
Agreement and gives written notice of same to the other party
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within ten (10) days of their occurrence, then such failure shall not be deemed
a breach or default; and the applicable time periods in which to perform shall
be extended, but only to the extent and for the period such condition exists.
22. NO WAIVER OF BREACH. No failure on the part of either party
hereto to exercise, and no delay in exercising, any right, remedy, or power
under this Agreement shall operate as a waiver thereof. Nor shall any single or
partial exercise of any such right, remedy or power preclude any other or
further exercise of any other right, remedy, or power. No waiver shall be valid
unless it is in writing and signed by the party to be bound thereby.
23. SURVIVAL. Sections 3, 4, 5, 6(c), 7, 8, 9, 13, 15 and 20 shall
survive any expiration or termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date in two (2)
counterparts, each of which shall be deemed an original and all of which
together shall be deemed to be one and the same instrument. The parties agree
that this Agreement or any counterpart thereof may be executed and delivered by
fax.
BLADE INTERNET VENTURES INC KPMG CONSULTING LP
By: By:
--------------------------------- -------------------------------
Name: Name:
------------------------------- -----------------------------
Title: Title:
------------------------------ ----------------------------
Date: Date:
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