Terms & Conditions
1. PARTIES AND AGREEMENT
1.1 This is a tripartite agreement entered among QikServe Limited, a company incorporated in Scotland (registered number SC405733) with registered office at 5th Floor, 125 Princes Street, Edinburgh, EH2 4AD (“QikServe”)
KSimplify Inc, a company incorporated in Canada with registered office at 12 Kilburn, Hampstead, Québec, Canada H3X 3B9 (“KSimplify”)
the customer who has contracted for the Services (the “Customer”) through an online order form (the “Order Form”)
1.2 Any reference to QikServe, KSimply and the Customer collectively shall be made as “party” or “parties”.
1.3 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
1.4 The singular shall include the plural and vice versa.
1.5 These terms and conditions together with any additional Documentation, Order Form, Statement of Work and the Pricing Schedule as set out in the Order Form the agreement among QikServe, KSimplify and the Customer for the Services (“Agreement”).
2.1 Definitions used in the applicable Order Form or Statement of Work will have the same meaning when used in this these Terms and Conditions.
2.2 The following definitions apply to these Terms and Conditions:
Bespoke Fees: means the fees payable for the Bespoke Services;
Bespoke Services: means the professional services detailed in a Statement of Work to be provided to the Customer by or on behalf of KSimplify or QikServe, including any customised or bespoke functionality developed as part of such services;
Business Day: means any day which is not a Saturday, Sunday or public holiday in the UK and Montréal, Québec, Canada;
Confidential Information: means information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as confidential;
Customer Data: means the data inputted by the Customer for the purpose of using the Services or facilitating the Customer’s use of the Services, excluding all Personal Data;
Customer Group: means in relation to any person, that person, any parent undertaking of that person, and any subsidiary undertaking of that person or of any such parent undertaking or an affiliate of that person and “Group Companies” and “member of [its] Group” shall be construed accordingly;
Customer Locations: means each Customer location where the Services are used as set out in the applicable Order Form or Statement of Work;
Customer Marks: means all Customer trade marks, logos and other Customer owned or licenced intellectual property made available by the Customer to KSimplify and/or QikServe in relation to the Software and/or Services;
Data Protection Legislation: means the following legislation to the extent applicable from time to time: (a) Personal Information Protection and Electronic Documents Act (“PIPEDA”) and (b) any other applicable privacy law;
Documentation: means the applicable Order Form or Statement of Work made available to the Customer by KSimplifyor QikServe which sets out a description of the Services and any other documentation created or supplied through the provision of the Services;
Effective Date: means the date hereof;
End User: means a person who uses the Services through a mobile device or directly at a Customer Location;
Group: means in relation to any person, that person, any parent undertaking of that person, and any subsidiary undertaking of that person or of any such parent undertaking or an affiliate of that person and “Group Companies” and “member of [its] Group” shall be construed accordingly;
Initial Subscription Term: means the period commencing on the Effective Date and continuing for the period set out in the applicable Order Form or Statement of Work;
Normal Business Hours: means 9.00 am to 5.30 pm local time each Business Day;
Order Form: means the online form provided by KSimplify or QikServe that identifies the Customer and the Servicesthe Customer subscribes to;
Personal Data: means personal data as set out under the Data Protection Legislation, and their cognate terms shall be construed accordingly;
Renewal Period: means the period set out in the applicable Order Form or Statement of Work;
Setup Fees: means the fee for setup at each Customer Location as provided in the applicable Order Form or Statement of Work;
Software: means the online software applications provided by QikServe as part of the Services;
Subscription Fees: means the monthly or annual subscription fees payable in advance by the Customer to KSimplifyas a documented in the appropriate applicable Order Form or Statement of Work;
Services: means the subscription services provided by QikServe to the Customer under this Agreement and applicable Order Form or Statement of Work;
Statement of Work: means the statement of work document made available by KSimplify or QikServe to the Customer which sets out a description of the Services/Bespoke Services;
Subscription Term: means the Initial Subscription Term together with any subsequent Renewal Periods;
Support Services Policy: means QikServe’s policy for providing support in relation to the Services as made available in the applicable Order Form or Statement of Work;
User Data: means all data obtained from the End User’s use of the Services; and
Virus: means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
3. USER SUBSCRIPTIONS
3.1 QikServe grants to the Customer from the Effective Date a non-exclusive, non-transferable right to use the Services documented in the applicable Order Form or Statement of Work during the Subscription Term.
3.2 The Customer shall not knowingly access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services or otherwise use the Services in a way that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and KSimplify and QikServe each reserve the right, without liability or prejudice to their other rights to disable the Customer’s access to the Services in the event of a breach of the provisions of this clause 3.2.
3.3 The Customer shall not (except to the extent expressly permitted under this Agreement), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(a) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services; or
(c) use or otherwise permit access to the Services and/or Documentation to provide services to any third parties; or
(d) subject to clause 18.3, license, sell, rent, lease, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except an End User; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
3.4 The Customer shall use best efforts to prevent any unauthorised access to, or use of, the Services and/or the Documentation, including but not limited to the secure retention and use of the API key which will be provided by QikServe and which is required by the Customer in order to access the Services. In the event of any such unauthorised access or use of the Services and/or Documentation, and/or in any event where the security of such API key has been compromised, the Customer shall immediately notify KSimplify and QikServe of the access. The Customer will assist KSimplify and QikServe with such remedial action that KSimplify and/or QikServe may reasonably request in this regard.
4.1 KSimplify has provided the Customer with Pricing for the appropriate Services as detailed in the applicable Order Form or Statement of Work.
4.2 The appropriate Pricing for any Bespoke Services to be delivered to the Customer will be stated in the applicable Statement of Work.
5.1 Provided Customer complies with the terms and conditions hereof, QikServe shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
5.2 QikServe shall use reasonable commercial efforts to make the Bespoke Services/ Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out on no less than 48 hours notice to the Customer during the maintenance window of 3.00 am to 8.00 am Eastern time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that QikServe has used reasonable commercial efforts to give the Customer at least 6 Normal Business Hours’ notice in advance.
5.3 QikServe will, as part of the Services and at no additional cost to the Customer, make available to the Customer standard customer support services during Normal Business Hours in accordance with the in effect at the time that the Services are provided. KSimplify and/or QikServe may amend the in their sole and absolute discretion upon no less than 90 days written notice to the Customer, provided that such amendment does not materially alter the terms of this Agreement and/or materially diminish the Services and applies to at least 90% of QikServe’s customers for the Services. The Customer may purchase enhanced support services separately at then current rates.
5.4 Rating of severity of incidents will be classified on the following principles:
(a) “Error” means an error in the Software which causes a material non-conformity of the Software with the specifications therefore set forth in the Documentation.
(b) “Error Correction” means the use of reasonable commercial efforts to correct Errors.
(c) “Fix” means the repair or replacement of object or executable code versions of the Software to remedy an Error.
(d) “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an error without substantially impairing the customer’s use of the Software.
6. CUSTOMER AND USER DATA
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.2 QikServe and kSimplify will only process Customer Data and or User Data under this Agreement, related to: product information, price, images (where applicable) and product discounts, or to make Customer Data anonymous for the purposes of continued improvement of the Service provided to the Customer.
6.4 In the event of any loss or damage to Customer Data, QikServe shall use to restore the lost or damaged Customer Data from the latest back-up under its archiving procedures.
6.5 Where applicable, each of QikServe and Customer agrees to obtain all necessary consent to process User Data and undertakes to process any User Data in accordance with all applicable laws including Data Protection Legislation.
7. QIKSERVE OBLIGATIONS
7.1 QikServe undertakes that the Services will be performed in accordance with this Agreement, with reasonable skill and care and with the degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a skilled and experienced company within the relevant industry or business sector, under the same or similar circumstances.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused solely by the use of the Services contrary to the terms of this Agreement.
7.3 If the Services do not conform with the undertaking at clause 7.1, the Customer shall use reasonable commercial efforts to notify KSimplify and QikServe in writing within 10 Business Days of becoming aware of the non-conformity, or as soon thereafter as reasonably possible, and QikServe will then, at its sole expense, use all reasonable commercial efforts to correct any such non-conformance promptly or, where agreed with the Customer in writing, provide the Customer with an alternative means of accomplishing the desired performance, provided the Customer provides all information that may be reasonably necessary to assist QikServe in resolving the non-conformity, including a documented example of any defect or fault where possible, or sufficient information to enable QikServe to re-create the defect or fault. Without prejudice to the foregoing, QikServe:
(a) warrants and undertakes that the Software will be free from material defects or errors;
(b) undertakes that it has, and shall maintain, all authorisations, permissions, licences and consents necessary to provide the Software and Services under the terms of this Agreement;
(c) undertakes that the Software will contain all functionalities and features specified in the Documentation;
(d) maintain software under regular review such that the Software will comply with all applicable laws, regulations, directives, and the like;
(e) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and,
(f) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This Agreement is non-exclusive and shall not prevent KSimplify and QikServe from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.5 QikServe shall obtain and will maintain in force throughout the Subscription Term, all licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8. KSIMPLIFY OBLIGATIONS
(a) Under this tripatite agreement kSimplify will accept all responsibility for Customer interactions (other than those relating to implementation and/or support for the Service), including contracting, account management and billing.
(i) does not provide any warranty in respect of the Customer’s or End User’s use of the Services;
(ii) is not responsible for any aspect of or failure of the Services.
9. CUSTOMER OBLIGATIONS
9.1 The Customer shall provide KSimplify (in a timely manner) with all reasonable documents, information and materials necessary for the performance of this Agreement in form agreed by the parties. If QikServe’s performance of its obligations under the Agreement is prevented or delayed by the Customer’s failure to provide such materials, QikServe shall be allowed an extension of time to perform its obligations as is reasonably required by QikServe to restore the Service. For the avoidance of doubt, this shall not affect the Customer’s obligation to pay any fees or other amounts due in accordance with clause 11.
9.2 The Customer shall provide KSimplify and QikServe with all necessary co-operation in relation to this Agreement and all necessary access to such reasonable information as may be required by KSimplify and/or QikServe in order to provide the Services, including but not limited to Customer Data, security access information and configuration services.
9.3 The parties shall comply with all applicable laws and regulations with respect to their activities under this Agreement and shall carry out all respective obligations set out in this Agreement. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, QikServe may then adjust the Services as reasonably necessary.
9.4 The Customer shall obtain and shall maintain in force all site specific licences, consents, and permissions necessary for QikServe, its contractors and agents to access the relevant site and perform their respective obligations under this Agreement, including without limitation the Services.
9.5 The Customer shall ensure that its network and systems comply with the relevant specifications provided by KSimplify and/or QikServe from time to time, and the Customer will be solely responsible for (i) procuring and maintaining its network connections and telecommunications links from its systems to designated data centres, and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
10. RIGHTS IN THE SERVICES
10.1 Software and Documentation provided in relation to the Services are provided solely in relation to the Customer’s use of the Services, and the Customer does not thereby obtain any independent right of use except as expressly provided herein.
10.2 Subject to clause 10.3, all intellectual property rights in the Services (including any customised or bespoke element of the Services which may be provided to the Customer) are owned by and/or validly licensed to QikServe.
10.3 Where KSimplify and/or QikServe uses any Customer Marks in accordance with this Agreement, the Customer grants to the KSimplify and QikServe a limited, non-exclusive, non-transferable, royalty free licence to use the relevant Customer Marks solely for the purpose of performing their respective obligations under this Agreement.
10.4 KSimplify and QikServe acknowledge that ownership of the Customer Marks is with the Customer or another member of the Customer Group and shall do nothing inconsistent with that. KSimplify and QikServe agree that all use of the Customer Marks by it shall inure for the benefit of, and be on behalf of, the Customer and that they do not and shall not have any, right, title or interest in or to the Customer Marks, other than the limited right to use the Customer Marks in accordance with this clause 10. KSimplify and QikServe shall not challenge the title of the Customer or Customer Group in or to the Customer Marks or the validity of the Customer Marks or register or attempt to register any of the Customer Marks anywhere in the world.
10.5 Where the Customer provides KSimplify and QikServe with copies of its Customer Marks, including, trademarks, logos or other Customer branding for use in customising any element of the Services for the Customer, KSimplify and QikServe shall be entitled to use such Customer Marks for this purpose, in accordance with clause 10.3. In the event that such use by KSimplify and/or QikServe infringes the intellectual property rights of any third party, the Customer shall indemnify KSimplify and QikServe, as applicable, against all loss, claims or damage which the Party incurs as a consequence, in accordance with clause 14.
10.6 In the event that use of the Software by the Customer infringes the intellectual property rights of any third party, QikServe shall indemnify the Customer and kSimplify against all loss, claims or damage which the Customer or kSimplify incurs as a consequence, in accordance with clause 14.
11.1 The Customer shall pay the Setup Fees and Subscription Fees (and where applicable the Bespoke Fees) to KSimplify for use of the Services in accordance with this clause 11. The Customer shall provide KSimplify order information and any other relevant valid, up-to-date and complete contact and billing details.
11.2 KSimplify shall invoice the Customer, unless otherwise specified and agreed in the Order Form:
(a) on the Effective Date for the Setup Fees and Subscription Fees payable in respect of the first year of the Subscription Term, and where applicable for the Bespoke Fees;
(b) the prorated amount of any additional Subscription Fees incurred through the installation of additional kiosks calculated from the date of their installation until the end of that year of the Subscription Term; and
(c) subject to clause 16.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in accordance with the frequency in the Order Form in respect of the next year of the Subscription Term.
11.3 In addition, Customer shall be responsible for reimbursing KSimplify and/or QikServe for all reasonable travel fees and expenses incurred by individuals whom KSimplify and/or QikServe engages in connection with the performance of Services, provided that these are pre-approved by Customer. Such expenses shall be invoiced by KSimplify and payable by Customer monthly in arrears.
11.4 The Customer shall pay each invoice issued by KSimplify within 30 days after the date of receipt of such invoice. Without prejudice to any other rights and remedies, KSimplify may, upon the expiry of 5 days written notice of late payment to the Customer:
(a) without liability to the Customer, arrange to disable the Customer’s password, account and access to all or part of the Services and QikServe shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
(b) charge interest on overdue amounts at the rate of 18% per annum, such interest accruing on a daily basis from the due date until actual payment of the overdue amount.
11.5 All amounts and fees stated or referred to in this Agreement shall be payable in the currency specified in the order form, are non-cancellable and non-refundable, and are exclusive of value added or sales tax, which shall be added to KSimplify’s invoice(s) at the appropriate rate.
11.6 KSimplify shall be entitled to increase the Subscription Fees on an annual basis with effect from each anniversary date of this Agreement.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the other party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is independently developed by the other Party, which independent development can be shown by written evidence.
12.2 Subject to clause 12.4, each party shall hold the other party’s Confidential Information in confidence, and restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as needed to know it for the purpose of discharging the receiving party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those set out in this clause 12.
12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 The above provisions of this clause 12 shall survive termination of this Agreement, however arising.
13. STORAGE & SECURITY
13.1 During the Subscription Term, each of kSimplify and QikServe shall be responsible for its own actions in respect of complying with using relevant standards, including a degree of care as is appropriate to secure and avoid unauthorised use or disclosure of any Customer Data or User Data and which are, at a minimum, consistent with the industry standards applicable to a service provider providing similar services.
13.2 During the Subscription Term, each of kSimplify and QikServe shall be responsible for its own actions to comply with all applicable privacy, data security laws and regulations (including Data Protection Legislation) and its own privacy and information security policies.
13.3 If either of kSimplify or QikServe discovers a breach or potential breach of security relating to the Services that impacts any Customer Data (including, without limitation, any unauthorized access of Customer Data) (a “Security Breach”), the party discovering such breach shall promptly: (i) notify Customer in writing of such breach or such potential breach and (ii) if the applicable Customer Data from the Services was in the possession or control of such party, such party shall promptly:
(a) investigate such breach or such potential breach,
(b) inform Customer of the results of such investigation as it relates to the Customer Data, and
(c) assist Customer in a commercially reasonable manner in maintaining the confidentiality of such information.
14.1 QikServe unconditionally and irrevocably agrees, as a continuing obligation on an after-tax basis, to defend and indemnify the Customer and the other members of the Customer Group in full against, and to pay on demand an amount equal to, all liabilities, costs, expenses, damages and losses (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by, or awarded against, the Customer’s or any other member of the Customer’s Group arising out of or in connection with:
(a) any claim made against the Customer or any other member of the Customer Group by a third party for death, personal injury or damage to property arising out of, or in connection with, the terms of this Agreement, which is attributable to the acts or omissions of QikServe;
(b) any contravention of Data Protection Legislation (and applicable laws), the processing and control of Personal Data (whether under this Agreement or not) and any loss or damage to Customer Data and User Data in relation to the services; and
(c) any claim made against the Customer or any other member of the Customer Group for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, terms of this Agreement (other than the use of Customer Supplied Intellectual Property), provided:
(i) QikServe is given prompt notice of any such claim;
(ii) the Customer provides reasonable co-operation to QikServe in the defence and settlement of such claim, at QikServe’s expense; and
(iii) so far as is reasonably possible QikServe is given sole authority to defend or settle the claim, provided any proposed settlement will not reasonably harm the Customer, or the Customer Group.
14.2 In the defence or settlement of any claim, QikServe shall procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any liability or obligation to pay liquidated damages or other additional costs to the Customer or kSimplify.
14.3 In no event shall kSimplify or QikServe, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than KSimplify or QikServe; and
(b) the Customer’s use of the Services or Documentation in a manner contrary to the terms of this Agreement; and
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from QikServe or any appropriate authority.
14.4 The foregoing provisions and this clause 14 state the Customer’s sole and exclusive rights and remedies, and QikServe’s (including QikServe’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right, right of confidentiality or breach of the Agreement.
15.1 This clause 15 sets out the entire financial liability of QikServe (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
(a) any breach of this Agreement however arising;
(b) any use made by the Customer of the Services; and
(c) any representation, statement or delictual act or omission (including negligence) arising under or in connection with this Agreement.
15.2 Nothing in these Terms seeks to exclude QikServe’s liability for: death or personal injury, or for fraud or fraudulent misrepresentation.
15.3 No party will be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under these Terms and Conditions that is caused by an event outside its reasonable control, subject to the provisions of clause 17.
15.4 In no event shall any party be liable for any loss of business, loss of profit, loss, loss of or damage to goodwill and/or reputation or for any indirect, punitive or consequential loss and subject to clause 15.2 and the provisions of these Terms and Conditions, each of QikServe and Customer’s total aggregate liability arising under this Agreement or otherwise relating to the Services shall be limited to 150% of the fees paid or payable under these Terms and Conditions.
15.5 In no event shall QikServe or kSimplify be liable to the Customer in relation to any Claim made against the Customer by an End User relating to use of the QikServe mobile application or the Service.
15.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, KSIMPLIFY SHALL HAVE ABSOLUTELY NO LIABILITY OR RESPONSIBILITY FOR ANY MATTER RELATING TO THIS AGREEMENT, THE QIKSERVE MOBILE APPLICATION AND/OR THE SERVICE REGARDLESS OF THE SOURCE OR CAUSE THEREOF.
15.7 This clause “Liability” shall survive termination of this Agreement.
16. TERM AND TERMINATION
16.1 This Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, unless otherwise agreed in and documented in the order form. This Agreement shall be automatically renewed for successive annual Renewal Periods unless:
(a) a party notifies the other parties of termination, in writing, at least 3 months before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement .
16.2 Without prejudice to any other rights or remedies to which the parties may be entitled, a party may terminate this Agreement without liability to the other parties if:
(a) a party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days (5 days if the breach is non-payment of amounts due hereunder) of that party being notified in writing of the breach; or
(b) a party is in persistent breach of the terms and conditions of this Agreement; or
(c) a party is insolvent within the meaning of applicable Bankruptcy and Insolvency Act (Canada) or similar legislation; or
(d) if a voluntary arrangement or a scheme of arrangement or composition with its creditors is entered into in relation to a party; or
(e) if a dissolution occurs, a winding-up petition is presented (and not withdrawn or discharged within 14 days) or a winding-up resolution (other than a voluntary winding-up for reconstruction) is passed (whether by the directors or shareholders) in relation to any party; or
(f) if a liquidator, receiver or administrator is appointed in respect of any party or any of its assets, or notice to appoint an administrator is given by any party; or
(g) a party ceases, or threatens to cease, to trade.
16.3 Without prejudice to any of the rights and remedies to which kSimplify and/or QikServe may be entitled, kSimplify or QikServe may terminate this Agreement and cease providing the Services without liability upon no less than 2 days’ notice to Customer for any reason including, without limitation, security breach, loss of revenue or lost transactions.
16.4 On termination of this Agreement:
(a) all licences granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) QikServe and KSimplify may destroy or otherwise dispose of any of the Customer Data in its possession unless QikServe and KSimplify receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. QikServe shall use reasonable commercial efforts to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by QikServe in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
16.5 Any unused Subscription Fees paid by the Customer in advance shall not be refunded, credited or returned regardless of the reason for termination.
17. FORCE MAJEURE
17.1 No party shall have any liability to the other parties under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs (whether involving the workforce of QikServe or any other party), act of God, war, riot, malicious damage, compliance with any law or governmental order, rule, regulation or direction, fire, flood, storm (Force Majeure Event).
17.2 Each party shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations under the Terms and Conditions, including implementing all necessary disaster recovery and back-up facilities and/or contingency plans.
18.1 No waiver by any party of any requirement of the Agreement, or of any remedy or right under the Agreement, shall have effect unless given in writing and signed by such party. No waiver of any particular breach of the provisions of the Agreement shall operate as a waiver of any repetition of such breach.
18.2 If any part of this Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
18.3 The Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of QikServe and KSimplify. Any purported assignment or delegation in violation of this clause 18.3 shall be null and void.
18.4 No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Each of QikServe and KSimplify may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of QikServe’s and KSimplify’s assets with the customer’s prior consent.
18.5 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.6 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18.7 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.8 This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
18.9 This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18.10 Nothing in the Agreement is intended to, or shall operate to, create a partnership among the parties, or to authorise any party to act as agent for the other, and no party shall have authority to act in the name or on behalf of or otherwise to bind the other among any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.11 All notices required or permitted under the Agreement will be in writing. Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving Party and (b) if the Party giving the notice has complied with the requirements of this clause 18.11. Any notice may be provided by:
(a) personal delivery; or
(b) certified or registered mail (in each case, return receipt requested, postage prepaid); or
(c) nationally recognised overnight courier (with all fees prepaid), on the date and at the time that the courier’s delivery receipt is signed; or
(d) shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business; or
(e) by of email to the respective relevant person set out in the applicable Order Form or Statement of Work.
18.12 Notices relating to the Agreement will be sent to the primary corporate addresses set forth in the Order Form or Statement of Work or to such other address as such party may notify the other Parties in writing in accordance with this provision.
18.13 The Agreement, including the applicable Order Form and Statement of Work, if any, constitutes the complete and exclusive understanding and agreement among Customer, QikServe and KSimplify regarding its subject matter and supersedes all prior or other agreements or understandings, written or oral, relating to its subject matter. Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Terms and Conditions or not) other than as expressly set out in the Agreement.
18.14 This Agreement shall be interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Québec and the federal laws of Canada applicable in that province.
18.15 The parties have requested that this Agreement and all related documents be drawn up in English only. Les parties aux présentes ont exigé que le présent contrat et tous les documents qui s'y rattachent soient rédigés en anglais seulement.
18.16 QikServe shall implement and at all times maintain suitable policies and procedures designed to prevent any activity, practice or conduct relating to the Agreement that would constitute an offence under any applicable Anti-Bribery Laws and shall procure that all of its Associates shall at all times comply with all such policies and procedures.
18.16.1 QikServe shall provide the Customer with all reasonable assistance to enable the Customer to comply with all Anti-Bribery Laws, including informing the Customer of any request by a third party for payment of a bribe in connection with this Agreement.
18.16.2 QikServe shall disclose to the Customer in writing, immediately on it becoming aware of the same, full details of any fact, matter, event or circumstance which does or might constitute a breach of this clause 18.16 Any failure by QikServe to perform its obligations under, or procure compliance with, this clause 18.16 shall be deemed to be a material breach of the Agreement by QikServe, such breach being incapable of remedy and giving the Customer the right to terminate the Order Form in accordance with clause 16.
19. INDEPENDENT LEGAL ADVICE
19.1 The parties acknowledge that they have entered into this Agreement willingly with full knowledge of the obligations imposed by the terms of this Agreement. The parties further acknowledge that they have been afforded the opportunity to obtain independent legal advice and confirm that they have either done so or waived their right to do so, and agree that this Agreement constitutes a binding legal obligation and that they are estopped from raising any claim on the basis that they have not obtained such advice.
20. PREVENTION OF THE CRIMINAL FACILITATION OF TAX EVASION
20.1 QikServe shall implement and maintain at all times a suitable prevention of the criminal facilitation of tax evasion policy containing reasonable “prevention procedures” as required by applicable law which covers all aspects of provision of Services and shall procure that all relevant officers, employees or agents of and any other persons who are engaged to perform any part of the Services and who are associated with QikServe for the purposes of applicable law ("Associates") shall at all times under this Agreement comply with QikServe's Prevention of Tax Evasion Policy.
20.2 QikServe hereby warrants, represents and undertakes that it and all Associates of it have acted and will act in compliance with all applicable laws and regulations relating to the criminal facilitation of tax evasion under the terms of this Agreement.
20.3 QikServe shall provide the Customer with all reasonable assistance to enable the Customer to comply with applicable law relating to the prevention of the criminal facilitation of tax evasion including, without limitation, monitoring compliance by its Associates with the Prevention of Tax Evasion Policy and informing the Customer of any request by a third party to criminally facilitate tax evasion in connection under this Agreement.
20.4 QikServe shall impose a contractual obligation not to criminally facilitate tax evasion on all third-party Associates engaged by the Customer to perform any part of the Services for or on behalf of the Customer.
20.5 Any failure by QikServe to perform its obligations under, or procure compliance with, this clause 19 shall be deemed to be a material breach of this Agreement by QikServe such breach being incapable of remedy and giving the Customer the right to terminate this Agreement by written notice with immediate effect.
20.6 Without prejudice to this clause 19, QikServe shall indemnify the Customer and its directors, officers, employees, successors and assigns from any and all losses, liabilities, fines, costs (including costs of remediation) and expenses (including legal fees, other professional fees and disbursements and costs of investigation) suffered or incurred by the Customer arising out of or in connection with any actual or alleged criminal facilitation of tax evasion or breach of this clause 19 by the Customer or any of its officers or employees or any other person engaged by it in the performance of under this Agreement.
21. ANTI-BRIBERY AND CORRUPTION
Each of kSimplify and QikServe shall, and shall procure that its personnel and any other persons who are engaged in connection with this Agreement and who are "associated" with kSimplify or QikServe, as the case may be, for the purposes of applicable law relating to anti-bribery shall, at all times during the term of the Agreement, comply with all applicable anti-bribery and corruption laws and regulations in the performance or purported performance of the Agreement and, in particular, shall not, either directly or indirectly, offer, promise, give, authorise the payment of or transfer a financial or other advantage to: (i) any public or government official in order to obtain or retain business and with the intention of influencing such official in their capacity as an official where such official is not permitted or required by written law to be influenced by the offer, promise or gift; or (ii) any other person with the intention of inducing or rewarding the improper performance of a function or activity.