Master Services Agreement

The Contractor, DiscoveryGarden Inc., is in the business of providing services to accommodate the Supported Software and Customer Materials (hereinafter referred to as the “Services”) regarding digital repositories and is a developer of the Supported Software;

The Customer wishes to retain the Contractor to provide the Services;

This agreement, which shall be referred to as the “Master Services Agreement”, shall provide the essential or basic terms which shall govern the relationship between the Contractor and Customer;

In addition to the Master Services Agreement, specific services or project services provided by the Contractor to the Customer shall be governed by a separate agreement referred to as the “Services Agreement” or the “Statement of Work Agreement”, both or altogether which shall govern the relationship of the Contractor and the Customer;

NOW THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the premises, mutual covenants and agreements herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

Customer Responsibilities

The Customer represents and warrants to the Contractor that it:

1. is engaged in a lawful business enterprise;
2. can form legally binding contracts and is authorized to enter into this Master Services Agreement along with any Services Agreement, Statement of Work, or additional agreement or amendment;
3. is in compliance with all applicable laws appropriate to its location of business and nature of work.

The Customer acknowledges that the use of any of the Contractor’s services is subject to all applicable local, provincial, national and international laws and regulations, and the Customer agrees not to violate such laws and regulations. Any attempt by any Customer to deliberately damage the services is a violation of criminal and civil laws.

The Customer may choose to perform maintenance without assistance from the Contractor; however, the Customer acknowledges responsibility for any resulting damages due to maintenance neglect.

In addition, the Customer agrees not to post or transmit through the Contractor’s services any material or content that violates or infringes in any way the rights of others, including but not limited to copyright and related intellectual property laws; solicits, encourages or promotes the use of illegal substances or activities that is unlawful, threatening, abusive, harassing, defamatory, libellous, derogatory, invasive of privacy or publicity rights, vulgar, obscene, bigoted or hateful, profane, scandalous, pornographic, indecent or otherwise objectionable; gives rise to civil or criminal liability; or otherwise violates any local, provincial or federal law. The Customer may not engage in any activity on the Contractor’s services that restricts or inhibits any other user from using the Contractor’s services by "hacking," "cracking," "spoofing," or defacing any portions of them.

Customer Materials

The Customer acknowledges that responsibility for all content is the sole and exclusive responsibility of the Customer and that the Contractor will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property rights of any person or entity, arising or relating to the Customer Materials.

The Customer acknowledges and agrees that the Contractor may elect at its sole discretion to monitor Customer Materials. The Contractor shall have the right, but not the obligation, to remove Customer Materials deemed, in the Contractor’s sole discretion, harmful, offensive, in violation of any provision of this Master Services Agreement, Services Agreement or Statement of Work, or breaches any law. The Contractor will consult with the Customer prior to taking any action to remove Customer Materials.

Compensation

Payment of such fees and charges shall be a condition to the effectiveness of the Services Agreement and Master Services Agreement and the provision of services or work.

The Contractor shall invoice the Customer for the Services in accordance with the fee schedule contained in the Invoicing Schedule or Statement of Work. Any payment which is not made within thirty (30) days after the date of the invoice shall be deemed to be overdue. Interest on overdue accounts shall accrue at (2%) percent per month (24%) percent per annum.

Should the Customer fail to timely pay any such invoice, the Contractor shall have the right upon prior written notice to the Customer to suspend the Customer’s access to the Services or to immediately terminate the Services Agreement. For the avoidance of doubt, the Contractor shall also have the right to suspend and terminate all Services Agreements and the relationship between the parties generally.

Term and Renewal

Each Services Agreement shall commence on the date it is made effective and shall remain in effect for the period provided therein unless earlier terminated as set forth below.

Unless the Services Agreement specifies that it is not automatically renewed, the Services Agreement shall automatically renew for the same period as the initial term (i.e., for an additional month in the case of a monthly term; for an additional year in the case of a yearly term, 3 months for a 3-month term, and so forth).

If the Contractor or Customer does not wish for the Services Agreement to automatically renew, the party shall provide written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term.

The Contractor may adjust the fees to be paid by the Customer for renewal upon issuing an updated fee schedule to the Customer at least thirty (30) days prior to the expiration of the then-current term.

Termination

Either party may terminate the Services Agreement upon written notice to the other party (i) if the other party breaches a provision of the Master Services Agreement, a Services Agreement or a Statement of Work, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach, or (ii) if the other party ceases to conduct business as a going concern, or (iii) in the event of (A) the dissolution, termination of existence, liquidation or insolvency of the other party, (B) the appointment of a custodian or receiver for the other party, (C) the Customer by or against the other party of any proceeding under the bankruptcy legislation or any other foreign, federal or provincial/state bankruptcy, receivership, insolvency or other similar law affecting the rights of creditors generally, or (D) the making by the other party of a composition of, or any assignment or trust mortgage for the benefit of creditors.

The Contractor may suspend the Customer’s access to the Service at any time without prior notice in order to comply with any law, regulation, court order, or other governmental liability resulting from the Customer’s use of or access to the Service. Immediate Notice of Termination will be sent to the Customer via email, with information on the reason and steps to rectify (if applicable).

Upon suspension, termination or expiration of this Agreement for any reason, all rights and obligations of both parties, including all rights granted hereunder, shall immediately terminate. Any payment obligations incurred prior to the suspension, termination, or expiration shall survive such suspension, termination or expiration of this Agreement, and the Contractor shall return any pro rata balance to the Customer.

Insurance and Taxation

The Contractor is responsible for and pays all costs of conducting the Contractor’s business, including but not limited to the expense and responsibility for any applicable insurance or municipal, provincial, state or federal licenses, permits, taxes or assessments of any kind. The Contractor is responsible for payment of all applicable business and self-employment taxes, including but not limited to income taxes, Canada Pensions Plan and Employment Insurance Act contributions and worker’s compensation premiums. The Contractor will indemnify the Customer and hold it harmless from paying such business costs or taxes.

Applicability of General Public License

All of the software developed by the Contractor is available as open-source software under the terms of its associated General Public License (GPL) or where 3rd party applications are used under the terms specified by that license. Some software development that occurs as a consequence of custom programming work for a Customer and is incorporated with the supported software will also be made available as open-source software under the terms of the associated GPL or where 3rd party applications are used, under the terms specified by that license. The terms and conditions of the GPL apply to any copying, distribution, or modification activities any Customer may wish to undertake independently.

Mutual Liability

Without waiving sovereign immunity, each party to this Agreement shall be responsible for the negligent acts or omissions of its own employees, officers, and/or agents in the performance of this agreement.

Disclaimer of Warranties and Other Limitations

Except as otherwise expressly provided in this Master Services Agreement, Services Agreement or Statement of Work, the Contractor disclaims any and all promises, representations and warranties, express or implied, with respect to the supported software, corrections and the services provided hereunder, including promises, representations and warranties as to condition, the existence of any latent or patent defects, merchantability or fitness for any particular purpose, non-infringement, or any implied warranty of information content or system integration.

Notwithstanding the above, the Contractor warrants the integration/interface with the Customer’s systems at the time of launch and subsequently as long as the versions of these applications remain unchanged.

Without limiting the generality of the foregoing disclaimer, the Contractor does not warrant that its advice or programming on behalf of the Customer will be error-free.

In no event shall the liability of the Contractor to the Customer for any claim whatsoever related to this Master Services Agreement, Services Agreement or Statement of Work exceed the total amount of fees paid for the Services that gave rise to the claim within the calendar year during which the claim arose.

Force Majeure

Neither party will be liable to the other by reason of any failure in performance of this Master Services Agreement, along with any and all Services Agreement or Statement of Work, if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, pandemic, epidemic or any causes beyond the reasonable control of that party (a “Force Majeure”). If a Force Majeure event occurs, the Contractor shall have up to five (5) business days to determine if and when Services resume.

Mediation

If the parties disagree over the interpretation of this Master Services Agreement, along with any and all Services Agreement or Statement of Work, or whether a party or a Customer is in breach of any part of this Agreement, the parties shall in good faith enter into negotiations to resolve the disagreement and discuss the feasibility of resolving the disagreement by mediation or other means short of litigation. The parties shall cooperate in good faith in pursuing mediation or such other means.

Compliance With The Law

The Customer acknowledges and agrees that the Contractor may elect at its sole discretion to monitor the activities of the Customer on the Supported Software. The Customer agrees to use the Services for legal purposes only. In the event that the Contractor becomes aware or reasonably believes, in its sole discretion, that the installation is being used for illegal purposes, the Contractor shall be entitled to immediately terminate the Master Services Agreement, along with any and all Services Agreement or Statement of Work and the Services without notice in addition to any remedies to which it may be entitled under the law.

The Customer represents and warrants to the Contractor that:

1. It has the right and capacity to enter into this Master Services Agreement, along with any and all Services Agreement or Statement of Work, and fully perform all of its obligations hereunder;
2. All Customer Materials provided hereunder shall be wholly original to the Customer or the Customer has acquired the necessary rights from third parties to contribute such Customer Materials and include it in the Supported Software, and Customer Materials shall not violate any laws of any country and shall not infringe any other party’s copyright, patent, trademark or other intellectual property right.

The Customer shall not, nor shall it allow, authorize or assist any third party to use the Supported Software for any illegal purpose whatsoever.

Offers of Employment

The Customer undertakes that no offers of employment will be knowingly and intentionally made to any employee of the Contractor as a result of work carried out by such employee of the Contractor on behalf of the client during the currency of this agreement or for a period of twelve (12) months after its termination.

Confidentiality

Except as required to perform Services on behalf of the Customer, the Contractor shall not at any time, whether during the term of this Agreement or thereafter, use or disclose any confidential, proprietary, or trade secret information of the Customer without the explicit written consent.

All documents, records, work papers, notes, memoranda, records and other materials (“materials”) made available to the Contractor during the term of this Agreement shall be and remain the property of the Customer and shall be held by the Contractor solely for the duration of the Contract. Upon termination of this Agreement or at any time upon request by the Customer, said materials shall be delivered to the Customer or destroyed.

The Customer retains ownership and sole copyright of any materials and intellectual property produced from this project.

General

Neither party may assign or otherwise transfer this Master Services Agreement, along with any and all Services Agreement or Statement of Work, without the written consent of the other party. This Agreement shall ensure to the benefit of and bind the parties hereto and their respective legal representatives, successors and assigns.

Independent

The Contractor and the Customer are independent contractors, and neither shall act as the other’s agent or be deemed an agent or employee of the other, nor shall this Master Services Agreement, along with any and all Services Agreement or Statement of Work, be interpreted as creating a partnership or joint venture or otherwise. Nothing herein is designed to create, nor shall create between them, a partnership, joint venture, agency, or employment relationship.

Entire Agreement

This Master Services Agreement, along with any and all Services Agreements or Statement of Works, collectively contain the entire understanding of the parties with respect to the subject matter and supersede and merge all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter, including (without limitation) any pre-existing agreement.

There are no representations, warranties, conditions, covenants or other agreements, express or implied, collateral, statutory or otherwise, between the parties in connection with the subject matter except as specifically set forth in this Master Services Agreement and any and all Services Agreements or Statement of Works.

Notices

Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Master Services Agreement, along with any and all Services Agreement or Statement of Work, shall be delivered and addressed to the Contractor at the address set forth in this contract and to the Customer at the address indicated on the Statement of Work. Notice shall be deemed to have been received by any party and shall be effective on the day given if personally delivered or if sent by confirmed facsimile or electronic mail transmission, receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices.

The Customer may change its address for notice purposes upon issuance of notice thereof in accordance with this Section. The Contractor may change its address for notice purposes by changing the address set forth in the Statement of Work.

Severability

In the event any provision of this Master Services Agreement, along with any and all Services Agreement or Statement of Work, is determined to be invalid, illegal or unenforceable, that provision will be severed, and the remaining provisions will remain in full force and effect.

If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected, and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.

Survival Of Terms

The obligations of this Master Services Agreement, along with any and all Services Agreement or Statement of Work, will survive any expiration or termination of the provision of Professional Services regardless of whether any party is or has been in compliance with any provision in this Agreement.

Representation

The Contractor will not hold his/herself out as having any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon the Customer without explicit written consent.

The obligations of this Master Services Agreement, along with any and all Services Agreement or Statement of Work, will survive any expiration or termination of the provision of Professional Services regardless of whether any party is or has been in compliance with any provision in this Agreement.

Interpretation

The headings used in this Master Services Agreement, along with any and all Services Agreement or Statement of Work, are for convenience only and are not intended to be used as an aid to interpretation.

In this Master Services Agreement, along with any and all Services Agreement or Statement of Work, words importing the singular include the plural and vice versa, and words importing gender include all genders.

Reference Of Work

The Contractor will retain the right to promote in future its relationship and Services provided to the Customer. The Contractor shall not present any of the Customer’s confidential materials but may reference the type of work that was delivered and provide links to any public materials. Promotion may occur on one-to-one sales discussions, public speaking events and the Contractor's website or other corporate promotional materials.

Professional And Workmanlike Services

The Contractor will use its good faith, commercially reasonable efforts to:

1. ensure that Services are conducted in a professional and workmanlike manner by qualified personnel;
2. attempt to diagnose any failure of the Supported Software used by the Customer to conform to any documentation currently available and to advise the Customer of appropriate remedies in accordance with the applicable Statement of Work purchased by the Customer.

Electronic Execution And Counterparts

The parties agree with each other that a signature on this Master Services Agreement, along with any and all Services Agreement or Statement of Work, shall be delivered via facsimile or other electronic transmissions shall constitute a legally binding agreement. Electronic transmission shall include email return, “Docusign,” or a similar execution method.

This Master Services Agreement, along with any and all Services Agreement or Statement of Work, may be executed by the parties in separate counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute one and the same agreement. This Agreement will be considered fully executed when all parties have executed an identical counterpart, notwithstanding that all signatures may not appear on the same counterpart.