Customer Agreement Terms

1. No Joint Undertaking

The provision of the Services by MCI does not constitute a joint undertaking between MCI and Client to furnish any service or services to the Individuals or to any other party or parties. The Parties are independent parties and shall not be deemed or construed, by virtue of this Agreement, to be the employee, representative, partner, or joint venture of the other.  Neither Party shall have the power to bind the other or to incur obligations on the other’s behalf without the other Party’s prior written consent.

2. Privacy Policy

MCI has created and implemented a privacy policy (the “Privacy Policy”) in compliance with the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) and the Ontario Personal Health Information Protection Act, 2004 (PHIPA) which relates to the collection, use, disclosure, retention and disposal of personal information. Client and Individuals may access the Privacy Policy on the MCI Website and/or by request.

3. Representations of the Parties: Disclaimer

3.1 Each Party warrants and represents that:

(a) it has the necessary and actual right and authority to enter into and to perform its obligations under this Agreement;
(b) it has taken all necessary corporate action to authorize the execution, delivery, and performance of this Agreement;
(c) this Agreement constitutes a valid and binding obligation enforceable against the Party in accordance with its terms; and
(d) neither the execution of this Agreement nor the performance of its terms will violate any law to which such Party is or may be bound.

3.2 MCI represents that, throughout the term of this Agreement, it will maintain professional liability errors and omissions insurance coverage of at least $5 million (the “Insurance Amount”) to cover claims made by Client, other MCI clients or Individuals against MCI for alleged acts, errors, and omissions by MCI or its employees or agents in the provision of the Services.

3.3 CLIENT ACKNOWLEDGES AND AGREES THAT MCI HAS MADE NO REPRESENTATIONS AND HAS EXPRESSLY DISCLAIMED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OR REPRESENTATIONS OF EVERY KIND OR NATURE EITHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

4. Indemnification: Limitations of Liability

4.1 MCI agrees to indemnify and hold Client harmless from and against claims for direct damages for any act or failure to act by MCI, or by any officer, employee, or representative of MCI relating to or arising out of the Services provided pursuant to this Agreement; provided, however, that Client expressly waives any right to seek indirect, special, incidental, consequential, or punitive damages from MCI including, without limitation, claims for loss of business, revenue, profits, or goodwill, and provided further, that MCI’s total liability, including the liability of any of its officers, employees, or agents to Client or any Individual for any and all causes of action or claims of every kind or nature for, arising from, or relating in any manner to, directly or indirectly, this Agreement and/or the Services provided pursuant to this Agreement including, without limitation, claims for breach of contract, gross negligence, bodily injury, damage to property, willful misconduct or other intentional, fraudulent, or criminal acts, and interference with contractual relations, shall be limited to the lesser of Client’s proven direct damages or the Insurance Amount; provided, however, that in the event of a decision of liability attributed to both Parties, MCI’s obligation will be limited by its relative fault as compared to Client’s or an Individual’s in such matter.

4.2 Except for claims relating to Client’s unauthorized use of MCI’s intellectual property or either Party’s disclosure of Confidential Information of the other, no actions (regardless of form) arising out of or related in any way to this Agreement may be commenced by either Party more than one year after the cause of action accrued, even if the basis for such action was not known or discovered during such one-year period.

5. Indemnification: Limitations of Liability

5.1 MCI agrees to indemnify and hold Client harmless from and against claims for direct damages for any act or failure to act by MCI, or by any officer, employee, or representative of MCI relating to or arising out of the Services provided pursuant to this Agreement; provided, however, that Client expressly waives any right to seek indirect, special, incidental, consequential, or punitive damages from MCI including, without limitation, claims for loss of business, revenue, profits, or goodwill, and provided further, that MCI’s total liability, including the liability of any of its officers, employees, or agents to Client or any Individual for any and all causes of action or claims of every kind or nature for, arising from, or relating in any manner to, directly or indirectly, this Agreement and/or the Services provided pursuant to this Agreement including, without limitation, claims for breach of contract, gross negligence, bodily injury, damage to property, willful misconduct or other intentional, fraudulent, or criminal acts, and interference with contractual relations, shall be limited to the lesser of Client’s proven direct damages or the Insurance Amount; provided, however, that in the event of a decision of liability attributed to both Parties, MCI’s obligation will be limited by its relative fault as compared to Client’s or an Individual’s in such matter.

5.2 Except for claims relating to Client’s unauthorized use of MCI’s intellectual property or either Party’s disclosure of Confidential Information of the other, no actions (regardless of form) arising out of or related in any way to this Agreement may be commenced by either Party more than one year after the cause of action accrued, even if the basis for such action was not known or discovered during such one-year period.

6. Termination

This Agreement may be terminated by either party on written notice with immediate effect:

(a) if the other commits a material breach of any term of this Agreement which is not remedied within 60 days of a written request to remedy the same; or
(b) in the event of an Act of Insolvency with respect of the other party (the “Insolvent”).

In this Agreement, “Act of Insolvency” means:

a general for the benefit of creditors;

any proceeding instituted by the Insolvent seeking general relief as debtor, or to adjudicate the Insolvent a bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, or composition of the Insolvent or its debts, or for an order for similar relief under any law relating to bankruptcy, insolvency, or relief of debtors, or seeking appointment of a receiver, trustee, or other similar official for the Insolvent;

any proceeding is instituted against the Insolvent seeking to adjudicate the Insolvent a bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement or composition of it or its debts or an order for similar relief under any law relating to bankruptcy,

insolvency, or relief of debtors, or seeking appointment of a receiver, trustee, or other similar official for the Insolvent, unless the Insolvent is contesting the proceeding actively and diligently in good faith by an appropriate and timely legal proceeding, and the proceeding is dismissed, vacated, or stayed within 30 days of its institution, which period shall be extended to 90 days where the Insolvent  demonstrates to the reasonable satisfaction of the other that it is contesting such appointment in good faith;

the appointment of a receiver, receiver manager, or other similar official with respect to any of the assets of the Insolvent by a court or creditor if such appointment is not terminated within 30 days;

the Insolvent becomes bankrupt or insolvent within the meaning set out in the Bankruptcy and Insolvency Act (Canada);

the Insolvent is subject to any distress or execution levied on its rights under this Agreement; or

the Insolvent ceases or threatens to cease to carry on business.

7. Dispute Resolution

7.1 All disputes arising out of or in connection with this Agreement that cannot be resolved through good faith negotiation between the Parties shall be resolved through binding arbitration governed by the rules and procedures of the Canadian Arbitration Association; provided, however, that MCI reserves the right to seek equitable relief in any court of competent jurisdiction against threatened violations of MCI’s intellectual property rights. The Parties shall endeavour to select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. If the Parties are unable to agree to such a selection, each Party will select an arbitrator and those arbitrators in turn shall select a third arbitrator. The arbitration will take place at a location mutually agreed by the Parties. This agreement to arbitrate shall be specifically enforceable by either Party.

7.2 With the exception of privileged, confidential, proprietary, or trade secret information, all documents, materials, and information in the possession of each Party that are in any way materially relevant to the claim(s) or dispute(s) shall be made available to the other Party for review and copying no later than 45 days after the notice of arbitration is served.

7.3 Except as provided in Section 12.8 (Severability), the arbitrator(s) shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of this Agreement or to award punitive damages.  The award rendered by the arbitrator(s) shall state the reasons for the award and shall be final and binding on the Parties. Judgment may be entered on such award in any court having jurisdiction.

8. Miscellaneous

8.1 Entire Agreement: Amendment

This Agreement constitutes the entire agreement between the Parties and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the Parties relating to the subject matter of the Agreement. This Agreement may not be modified, changed, waived, discharged, or terminated orally. Such agreements may only be modified, changed, waived, discharged, or terminated by an agreement in writing signed by the party against whom or which the enforcement of such modification, change, waive, discharge, or termination is sought.

8.2  Waiver

Any failure on the part of a Party to comply with any of its obligations, agreements, or responsibilities under this Agreement may be waived by the other Party to whom such compliance is owed. No waiver of any provision of such agreements shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a waiver of any failure other than that waived.

8.3 Assignment

Neither Party may assign or otherwise transfer any of its rights, duties, or obligations under this Agreement to any person or entity without the prior written consent of the other Party, except to a successor entity or to an entity it controls, is controlled by, or is under common control with.

8.4 No Third Party Beneficiaries

No person other than the Parties and their respective successors and permitted assigns is intended to be a beneficiary of this Agreement. In executing this Agreement, the Parties do not intend to create third-party beneficiary rights in anyone not a party to the Agreement.

8.5  Force Majeure

Neither Party shall have liability to the other as a result of a Force Majeure Event.

In this Agreement, “Force Majeure Event” means:

An event not reasonably foreseeable, beyond a Party’s reasonable control, and occurring without its fault or negligence including, without limitation:

(a) an act of nature, such as fire, flood, earthquake, storm, tornado, lightning, landslide, sink hole, or outbreak of disease;
(b) a service failure caused by third parties, such as a power or utility outage or a labour dispute affecting suppliers or subcontractors;
(c) a civil disruption such as war, invasion, insurrection, trade embargo, or activities by terrorists or public enemies; or
(d) action by a governmental body that enjoins or prevents performance by a Party.

Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure or delay in performance under this Agreement where such failure or delay is proximately caused by a Force Majeure Event; provided, however, that the nonperforming Party uses commercially reasonable efforts to avoid or remove such causes of non-performance and restores performance as soon as such causes are removed.

8.6  Further Assurances

Each Party covenants that:

(a) it will comply in all material respects with any applicable laws in the performance of this Agreement: and

(b) at any time, and from time to time throughout the duration of this Agreement, it will execute such additional instruments and take such actions as may be reasonably requested by the other Party to confirm or perfect or otherwise to carry out the intent and purposes of this Agreement.

8.7 Severability

Any term or provision of this Agreement that is held to be invalid, void, or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of such agreements or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If any term or provision of this Agreement is declared invalid, void, or unenforceable, the Parties agree that the arbitral tribunal, court, or other authority making such determination shall have the power to reduce the scope, duration, or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void, or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. If the economic or legal substance of the transactions contemplated by such agreements is affected in any manner adverse to any Party as a result thereof, the Parties agree to negotiate in good faith such modifications as are appropriate to ensure that the burdens and benefits of each Party under such modified agreement are reasonably comparable to the burdens and benefits originally contemplated.

8.9  Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, without regard to provisions relating to conflict of laws. Any action brought in connection with this Agreement will be brought only in the courts in the City of Toronto, in the Province of Ontario and both Parties consent to the personal jurisdiction of such courts and waive any objections to venue of such courts.