1.  Definitions

“Agreement” refers to the Terms and Conditions document and any applicable legal document, SOW, Change Request, Amendment as may be executed between the Parties. 

“Change Request” means a document that describes a requested change to the original scope of Services as identified in a Statement of Work or Quote. 

“Client” refers to the “Bill-to” entity identified on the Quotation. 

“Contractor” shall mean 1749935 ON# o/a ThryvX.

“Deliverable(s)” means reports, procedures manual(s), or work product to be produced as a result of the Services.

“Effective Date” means the date specified on a Statement of Work or Quote.

“Fees” refers to those monies paid or payable to Contractor which may be specified in an applicable SOW or Quote.

“Intellectual Property Rights” means:

a) any and all proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law or any other statutory provision or common law principle applicable to this PSA, including trade secret law and law relating to the protection of Confidential Information, and

b) any and all applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing.

“Party” refers to the “Client” or the “Contractor” as an individual Party, collectively, the “Parties”.

“Quote” means a legal Quotation which shall include any applicable discounts, any applicable travel expenses, use, sales, value added, and other applicable taxes, and all such charges and taxes which shall be paid or reimbursed by Client.

“Services” means those services identified in a Statement of Work or Quote, including the preparation and delivery to the Client of the Deliverables.

“Statement of Work” or “SOW” means a project-specific detailed description of the Services, as the same may be amended or supplemented from time to time by mutual written agreement of the Parties.

“Supplier Agreement” means an agreement between Client and a third party who is not the Contractor.

“Term” means the period commencing on the Effective Date and ending on the date which is three (3) years following the Effective Date.

2.  Services

Contractor will provide the Client certain Services and Deliverables as outlined in the applicable SOW or Quote. Contractor will be responsible for providing appropriately skilled and experienced resource(s) to deliver the Services, including the Deliverables as described in the applicable SOW or Quote to the Client. 

Unless otherwise identified in an applicable SOW or Quote, all Services will be performed at Contractors premises or at Clients premises as and when required or as otherwise agreed to by the Parties.

3.  Acceptance of Deliverables

The Client will make reasonable efforts to review each Deliverable within three (3) business days of the Client’s receipt of each Deliverable. Within the review period the Client shall either provide written notice that the Deliverable(s) meet the Client’s requirement in their entirety or provide Contractor written notice of and a description of such deficiencies. Should the Client identify deficiencies relating to all or part of any Deliverable, Contractor shall promptly work to correct such deficiencies. 

4.  Change Management Process

Client and Contractor will discuss proposed changes as follows:

•  As appropriate, a status meeting, unless otherwise agreed to by the Parties, will be held between the Client and Contractor resources to discuss progress, any changes that have occurred or are likely to occur, and to begin the quantification and impact process. Such quantification and impact to the Fees and schedule will be estimated by the Contractor. The discussions and outcomes of this meeting will be recorded by Contractor.

•  Any recognized changes arising from this meeting or as and when may be required by the Client, including any change in Fees and schedule, will be documented and mutually agreed to by the Parties in the form of a Change Request (“CR”).

5.  Dependencies

The Client will provide documentation including but not limited to; requirements, copies of contracts, spend data, workflows or any other such documentation as may be requested by Contractor and deemed required to perform the Services. The Client will ensure timely decisions and access to the Client stakeholders as required to support the project schedule, completion of Deliverables and performance of the Services. Additionally, project specific dependencies may also be outlined in the applicable SOW, Quote or CR as agreed to between the Parties.

6.  General Assumptions

Any changes to these Terms and Conditions, Quote or SOW(s) or the Services and any costs related thereto will be submitted for review and approval by the Client and Contractor in accordance with the Change Management Process set out in Section 4.

The Client agrees, unless otherwise agreed to by the Parties, to provide Contractor with appropriate onsite workspace, computer laptop, software and systems access, as necessary to perform the Services, throughout the Term of the SOW or Quote.

7.  Term, Termination and Survival

a)  These Terms shall continue in full force and effect for a period of three (3) years from the Effective Date of the applicable SOW, Quote or any other such agreement unless otherwise terminated by mutual written agreement of the Parties.

b)  Notwithstanding Section 7(a), unless otherwise spelled out in the applicable SOW or Quote, Client, in its sole discretion, may terminate the SOW or Quote, in whole or in party, at any time without cause, and without liability except for required payment for services rendered, and reimbursement for authorized expenses incurred, prior to the termination effective date, by providing at least ninety (90) days’ prior written notice to Contractor. 

c)  The Term of a SOW or Quote shall be specified in the respective SOW or Quote. 

d)  Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party“), if the Defaulting Party:

a.  Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach. 

b.  Becomes insolvent or admits its inability to pay its debts generally as they become due.

c.  Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing.

d.  Is dissolved or liquidated or takes any corporate action for such purpose. 

e.  Makes a general assignment for the benefit of creditors.

f.  Has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

e)  The rights and obligations of the parties set forth in this Section 7 and Section 8, Section 11, Section 13, Section 14 and Section 16 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

8.  Indemnification

Contractor shall indemnify, defend and hold harmless Client and its officers, directors, employees, agents and affiliates, against any and all direct damages, liabilities, deficiencies, including reasonable legal Fees, (collectively, “Losses“), relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with Contractor’s gross negligence, willful misconduct or breach of this Agreement. Contractor shall not enter into any settlement without Client’s prior written consent.

The Client shall indemnify Contractor for and save harmless from and against Losses as a result of the Client breaching this agreement.

The liability of either Party relating to or arising out of the SOW or Quote, shall not exceed the total charges paid by Client for the Services, under the specific SOW or Quote.   

9.  Fees

All applicable Fees for the Services shall be detailed in the applicable SOW or Quote and are exclusive of taxes. All such Fees are exclusive of all travel/living and other expenses required for travel other than the Client’s primary location. All expenses must be preapproved by the Client and invoiced bi-weekly, in arrears. All expenses not preapproved by the Client or not otherwise meeting the requirements of this Agreement or the applicable SOW or Quote to which it applies shall be the sole responsibility of the Contractor.

All funds are expressed as Canadian funds (CAD)

The Fees shall be based upon the scope of the Services and the assumptions set forth in the applicable SOW or Quote. 

Contractor shall invoice in accordance with the applicable SOW or Quote. All invoices shall include the Contractor’s HST# and shall be sent to the Client designate. Unless otherwise agreed, all invoices are due and payable within fourteen (14) calendar days of the invoice date and may be accompanied by documentation reasonably requested by the Client evidencing the charges. If a payment is not received within seven (7) days of the payment due date, the Client agrees to pay a late payment Fee equal to three (3)% of the payment amount due, per month, until payment is received. 

10.  Taxes

Where Contractor is a registrant for HST purposes, or for any other provincial sales tax purposes and is thereby required to collect such taxes on the Fees for Services to the Client, Contractor shall disclose on all invoices issued to the Client, its registration numbers. The Client shall pay the HST or other sales taxes directly applicable to the Services. 

11.  Representations and Warranties 

a)  Contractor represents and warrants that Contractor is duly organized, validly existing and in good standing under the laws of its State or Province of incorporation or formation and has the full legal right, power and authority to enter into and fully perform the Services and the unrestricted right and authority to make the assignments and grant the rights to the Client required and that its performance of the Services will not in any way infringe upon or violate any rights of any third party, including, without limitation, any Intellectual Property Rights. Contractor represents that its execution of the applicable SOW or Quote and the compliance by Contractor with the provisions hereof will not conflict or result in a breach of or default under any other agreement to which Contractor is a party or by which it is bound.

b)  Contractor represents and warrants that it has the requisite skills, expertise, knowledge, training, experience and ability in the fields to which the Services relate and related disciplines necessary to perform the Services and that all Services will be performed in a competent, diligent, professional and careful manner and will meet or exceed the standards for such Services which would be generally accepted in Contractor’s industry.

c)  Contractor warrants that the Deliverables and/or Services provided pursuant to the SOW or Quote will be free from defects in materials and workmanship and substantially conform to the specifications agreed to between the Client and Contractor in the applicable SOW or Quote. Contractor will make commercially reasonably efforts to: either repair the defects, re-perform the Services or replace such Deliverables and/or Services with equivalent Deliverables and/or Services that substantially meet the specifications of the Client. 

12.  Independent Contractor 

Contractor will perform the Services as an independent contractor, and nothing contained in this Agreement, the SOW or Quote, will be construed to create or imply a joint venture, partnership, principal-agent, agency, fiduciary or employment relationship between the parties and Contractor or its employees or subcontractors. Neither Party will take any action or permit any action to be taken on its behalf that purports to be done in the name of or on behalf of the other Party and will have no power or authority to bind the other Party to assume or create any obligation or responsibility express or implied on the other Party’s behalf or in its name, nor will such Party represent to anyone that it has such power or authority.

Client shall have no liability or responsibility for withholding or remitting any income, payroll, including employment insurance remittances, Canada Pension Plan contributions or employer health tax, or worker’s compensation insurance premiums for Contractor’s personnel. Contractor is responsible for these withholding, remitting and registration obligations, and shall indemnify Client from and against any order, penalty, interest, taxes or contributions that may be assessed against Client due to the failure or delay of Client to make any such withholdings, remittances or registration, or to file any information required by any law. and shall be solely responsible for the payment of all taxes, unemployment insurance contributions and all similar taxes and Fees relating to the Fees earned by Contractor hereunder.

13.  Non-solicitation

Throughout the duration of the Agreement and for a period of 1 year following the completion of this agreement, Client will not directly or indirectly:

a.  Solicit, nor authorize anyone on its behalf to solicit, request, offer nor accept Services or any work including full time employment, from or by the employee, sub-contractor or prospective sub-contractor of ThryvX introduced to Client by ThryvX, without ThryvX’s prior written consent. 

b.  Attempt to seek or cause any employee, sub-contractor or Prospective sub-contractor of ThryvX to refrain from continuing their relationship with ThryvX.

14.  Ownership 

Any and all reports, manuscripts, data, summaries and any other work products, proprietary and intellectual property, including any background data used to support the Services performed pursuant to this Agreement and applicable SOW or Quote, whether completed or not, that have been produced, compiled, created, written or accumulated by Contractor, its employees and/or subcontractors, or on its or their behalf, in the performance of the Services (collectively, the “Deliverables”) shall be the property of the Client and shall be turned over to the Client promptly at the Client’s request or immediately upon the expiration or early termination of this Agreement or respective SOW or Quote (in accordance with Section 7 or Section 8), whichever is first to occur. Notwithstanding the preceding, all Deliverables shall be specifically outlined in the applicable SOW or Quote.

15.  Confidentiality

The parties hereby agree to treat all Confidential Information (as further defined in the Confidential Information Agreement executed between the parties) it may receive from the other Party during the Term of this Agreement, SOW or Quote. Contractor further agrees that it shall require each of its employees and/or subcontractors who provide all or any portion of the Services to treat the Client’s Confidential Information in accordance with the Confidential Information Agreement and with the terms set out in the SOW or Quote. If required by the Client, Contractor shall provide sufficient evidence of its employees’ and subcontractors’ agreement to hold the Client’s Confidential Information in confidence.

16.  Other

Assignment. Neither Party shall assign any of its rights or obligations under this Agreement to any other party whomsoever without prior written consent, which consent may not be unreasonably withheld. Notwithstanding the foregoing, Contractor may subcontract Services to a third party as Contractor deems necessary to complete the Services. 

Notice. Any notice, request, demand, consent or other communication provided or permitted hereunder shall be in writing and given by personal delivery (against receipt), or sent by registered mail (against receipt) postage prepaid, or transmitted by facsimile or email addressed to the other Party for which it is intended at its address below:

To Contractor:
ThryvX Consulting
Attention: Corette Miller
corette.miller@thryvx.com
416-473-5034

16. Governing Law 

This Agreement and any such applicable SOW or Quote shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The Parties agree that they shall submit any matter in dispute, to a court of competent jurisdiction located in Toronto, Ontario, Canada and each of the Parties irrevocably attorns and consents to the exclusive jurisdiction of such courts.

Confidential. Not for distribution.