Terms and Conditions

These Terms and Conditions (these “Terms”) are effective as of January 1, 2022 and form an essential part of and are subject to the terms of your Project Agreement (“Agreement”) with TLC Solutions. All capitalized terms not defined in these Terms, have the meanings ascribed to them in your Project Agreement.

Article 1: Services And Deliverables

Scope. This Agreement will control and govern matters associated with certain Deliverables and Services to be provided by TLC Solutions during the term of, and pursuant to, this Agreement as set out in the Project Agreement and any subsequent Project Agreements. Each fully executed Project Agreement incorporates in full and is governed by each and every term and condition of this Agreement.
Services. As described in each Project Agreement, TLC Solutions will perform and provide those services, and deliver to the Client those Deliverables, set out in the Project Agreement (collectively, the “Services”). For greater certainty, the specific Deliverables and Services to be provided by, and related compensation to be paid to, TLC Solutions will be detailed in the Project Agreement. Anything that is not by necessity included in the Services described in a Project Agreement, does not form part of the Services and the Client bears all responsibility for ensuring that the Services as described in the Project Agreement fully meet its needs.
Change Orders. Subject to the further provisions of this Section 1.3, the Parties may in their discretion agree to change any aspect of the Project Agreement (each, herein, a “Change”), provided that a Change will not be effective or binding unless and until it is confirmed in a written form that expressly states that it is an amendment to the applicable Project Agreement (or, by reference to specific provisions of this Agreement, such provisions of this Agreement) and is signed by each of the Parties (a “Change Order”).
1. Transparency. The Parties will deal transparently with each other throughout the process of preparing a Change Order, and TLC Solutions will consult with Client in establishing the assumptions regarding the scope of the Change and Client’s requirements for the Change. Without limiting the foregoing, each Party will make available to the other Party all supporting information and documentation reasonably requested by the other Party that relates to the preparation of the Change Order.
2. Clarification. TLC Solutions will not implement a Change or perform additional work in connection with that Change (other than preparing it hereunder) unless and until the Change or additional work (as applicable) is expressly authorized by a Change Order.
3. Additional Fees. Except for Rush Requests noted below, all additional work pursuant to a Change Order will be charged at TLC Solutions’ current rates.
4. Rush Requests. Any Changes which will expedite the delivery of Services (each, a “Rush Request”) will be subject to a set rush fee of $250.00/hour CAD for Canadian clients and $250.00/hr USD for US clients.
5. Reprioritization. Subject to the approval of TLC Solutions, which will not be unreasonably withheld, for projects which cannot accommodate an increase in budget due to additional fees or Rush Request fees, Client may choose to reprioritize other aspects of the Services in favour of the new Services requested under a Change Order.
Costs and Expenses. Each Party will bear its own costs of participating in the change management process set forth in this Section 1.3, including the preparing Change Orders and participating in meetings and discussions relating to any of those items and, unless the Parties expressly agree in writing otherwise.

Article 2: Performance

Performance. TLC Solutions will use commercially reasonable efforts to promptly and diligently perform the Services in accordance with the Project Agreement and any applicable timelines specified therein.
Client Items. TLC Solutions and the Client will work together to determine any Client Items and schedules for the performance therefore. The Client will perform all Client Items on or prior to the applicable target dates and will direct its personnel to promptly and efficiently cooperate with any reasonable requests made by TLC Solutions in connection with these Client Items. Client is responsible for providing all hardware, software, equipment or ancillary services necessary to access or otherwise use any Deliverables, including without limitation, adequate internet service and licenses with third party suppliers.
Failure of Client Items and Scheduling. If, the Client has failed or will fail to perform any Client Items on or prior to the applicable the target date, the Client will promptly notify TLC Solutions, and in any event within not more than five Business Days after the Client knows the same, providing details thereof to TLC Solutions so that TLC Solutions can determine the actual or reasonably likely effect of the failure or inaccuracy on TLC Solutions’ performance of the Services and delivery of Deliverables. Any failure of the Client under this Section 2.3 will constitute a valid reason for any subsequent failure to perform by TLC Solutions that is related thereto, will exempt TLC Solutions from any liability associated with any such resultant failure, and at TLC Solutions’ sole discretion, TLC Solutions may require that the Parties proceed by agreeing to a Change Order to reflect any additional costs or increased timelines resultant from such failure by the Client. For meetings, TLC Solutions requires at least 48 hours to set-up meetings and as such, if Client needs to reschedule a meeting it will provide TLC Solutions with no less than 48 hours’ notice. Fulfilling rescheduling requests will first adhere to TLC Solutions’ schedule provided that if the Client indicates there is urgency TLC Solutions will use best efforts to accommodate any such rescheduling.
Dormant Projects. Time is of the essence of this Agreement. If Client fails to respond, in writing, to TLC Solutions for a period of fourteen calendar days following the last written communication from TLC Solutions, any such failure will constitute a valid reason for any subsequent failure to perform by TLC Solutions according to the schedule, and will exempt TLC Solutions from any liability associated with any such resultant failure by Client. If Client fails to respond, in writing, to TLC Solutions for a period of thirty calendar days following the last written communication from TLC Solutions, the Services to be provided under the Project Agreement will be considered a “Dormant Project”. Client acknowledges that TLC Solutions will cease all work on Dormant Projects and that all Fees paid by Client for such Dormant Project are non-refundable. Reactivating Dormant Projects will only be done at the written request of the Client and are subject to a reactivation fee and the Change Order process set out in Section 1.3.
Notification of TLC Solutions Delay. TLC Solutions will notify the Client in writing promptly if it becomes aware or reasonably anticipates that there will be or there is likely a delay in the performance or completion of any work or task required, regardless of whether or not it relates to a Client Item. The notice provided by TLC Solutions will include: the reasons for TLC Solutions’ failure or anticipated failure; the potential effect of the failure on the ability of TLC Solutions to perform the Services; any steps that TLC Solutions proposes to take in order to remedy the failure and mitigate the effect of the failure; if applicable, the anticipated length of the delay; and, if applicable, the date by which TLC Solutions will return to on-scheduled performance. Subject to any delay permitted pursuant to Section 2.3, TLC Solutions agrees that it will promptly implement all such steps at no additional cost to the Client.
Control, Facilities, Tools. TLC Solutions will have complete control over its performance of the Services and will direct and supervise and do the Services to ensure conformance with this Agreement. TLC Solutions will be solely responsible for all methods, techniques and procedures required to furnish all Deliverables, and the Services, except for those parts that are expressly stated as Client Items that are the responsibility of the Client.
Standards:
1. Quality. TLC Solutions will perform its obligations under this Agreement with promptness and diligence, in a good and proficient manner, in accordance with applicable industry standards and practices, and with no less than the standard of professional skill, care and diligence customarily applied by contractors providing or performing similar work and providing similar services for similar projects in North America, but in any event at all times in accordance with this Agreement.
2. Applicable Laws. TLC Solutions will at all times comply with all Applicable Laws in connection with the performance of the Services. TLC Solutions will obtain and at all relevant times maintain all work permits and other licenses, certificates, authorizations and approvals required under applicable law as are necessary for TLC Solutions to perform lawfully all obligations under this Agreement.
3. Timing. TLC Solutions operates Monday through Friday from 9:00 AM to 5:00 PM Pacific Standard Time and clients can expect regular communication to occur within these times. Communications outside of these hours is at all times subject to the discretion of TLC Solutions’ personnel and Client acknowledges that any such after-hours communications does not and should not set any expectations for ongoing services.
Subcontracting. TLC Solutions may subcontract this Agreement, the Services or any portion of it or them to any third party without the prior written consent of the Client, provided that, with respect to each subcontractor:
1. TLC Solutions will ensure that any subcontracted Services are provided in compliance with this Agreement by individuals qualified and competent to provide them.
2. any breach, act or omission by any of its subcontractors in connection with this Agreement will be deemed a breach, act or omission by TLC Solutions, and TLC Solutions will be fully responsible therefor.
Knowledge Transfer. Without limiting the generality of any other provision of this Agreement, and unless and to the extent that an Project Agreement expressly states otherwise, TLC Solutions will provide a transfer (through documents, informal training or both, as reasonable and appropriate) of knowledge regarding the Services and Deliverables to the Client’s personnel as reasonably necessary for such personnel to understand and obtain the benefit of the Services and to understand and use the Deliverables as contemplated by this Agreement. For greater certainty, these obligations do not include formal training sessions, which will (if at all applicable) be specifically set out in a Project Agreement.
Malware. TLC Solutions will use industry-standard, diligent and reasonable efforts (without limiting any efforts that may be expressed in any Project Agreement) to prevent a Deliverable from containing, and will not intentionally include in any Deliverable, any Malware, each as defined below. Upon notice by the Client that a Deliverable or other item of Work Product as delivered to the Client contains Harmful Code or a Lock:
1. to the extent the Deliverable consists of TLC Solutions’ or its subcontractors’ original work, TLC Solutions will promptly, at its own cost or expense, repair or replace the Deliverable or item of Work Product so that it does not contain the Malware; and
2. to the extent the Deliverable consists of third party materials (including open source software), TLC Solutions will work with the Client to remove or repair the Deliverable to mitigate against the Malware.

Article 3: Fees

Fees. In consideration of TLC Solutions performing the Services, delivering the Deliverables, and carrying the same through Acceptance, if applicable, all in accordance with this Agreement, the Client will pay to TLC Solutions the amounts set out in the relevant Project Agreement.
1. Fees are considered due and payable upon receipt of invoice.
2. All invoices related to a specific project must be paid in full and the client’s general account must be considered in good standing (no invoices in excess of 30 days past due), prior to the transference of work and/or materials from TLC Solutions to the client including, but not limited to, the launching of websites, transference of administrative capabilities and hand over of electronic files.
3. Should invoices remain unpaid past the 60 days due, TLC Solutions will issue a warning to the client stating that if payment is not received within a 14 calendar day period, TLC Solutions will cease all work associated with that client. This cessation will affect all current contracts and/or open works with TLC Solutions. Failure by the client to pay the account in full and/or negotiate terms of repayment to bring the account into good standing prior to the end of the 14 days period, will result in TLC Solutions taking any, and all, legal action to recover the outstanding debt.
4. Failure to pay any/all invoices does not release the client from their obligation to terminate in accordance with Section 8.2(a). All accounts frozen due to nonpayment of fees will trigger the cancellation fee provisions set out in Section 3.3 as if this Agreement were cancelled by Client.
5. All invoices over 90 days due, will continue to accrue interest at the rate of prime +2%, calculated monthly until payment in full is received.
Deposits and Payments. Unless expressly stated in a Project Agreement, the following deposit and payment terms apply:
1. $50,000 and Above Projects: For Projects with Fees payable of $50,000 and above, 25% of the total Fees payable per the Project Agreement are due prior to Project start. Upon reaching 25% completion of the Project, as indicated in the Project Agreement, the remainder of the Fees will be invoiced pro-rata, on a monthly basis.
2. Less than $50,000 Projects: For Projects with Fees payable of less than $50,000, 50% of the total Fees payable per the Project Agreement are due prior to Project start. Upon reaching 50% completion of the Project, as indicated in the Project Agreement, the remainder of the Fees payable for the Services to be provided will be invoiced in a lump sum.
3. Digital Marketing Strategy Plans & Monthly Retainer Projects: The initial fee related to the Digital Marketing Strategy Plan, as indicated in the Project Agreement, will be invoiced on the contract signing date. All Monthly Retainer Fees will be invoiced thereafter on the monthly anniversary of the date when the Digital Marketing Strategy Plan is completed.
4. Rush Projects: If the Project is designated a Rush Project in the Project Agreement all Fees must be paid in advance and:
  1. if this Agreement is Client’s first agreement with TLC Solutions, all Fees must be actually received by TLC Solutions prior to Project start;
  2. if this Agreement is not Client’s first agreement with TLC Solutions and Client does not currently owe TLC Solutions any Fees pursuant to this Agreement or any other agreement for Services, then all Fees are due and payable Net 14 days; or

if this Agreement is not Client’s first agreement with TLC Solutions and Client does currently owe TLC Solutions any Fees pursuant to this Agreement or any other agreement for Services, all Fees must be actually received by TLC Solutions prior to Project start.

Service Requests:Service requests are available to all existing and former clients who are in good standing with TLC Solutions. The minimum charge for service requests is one hour and all work will be charged at TLC Solutions’ current hourly rate of $175/hour.For service requests deemed to be less than 4 hours worth of service, TLC Solutions will perform the work and issue an invoice for payment at the end of the month. Should a service request be deemed to require more than 4 hours of work, TLC Solutions will provide the client with an estimate of the work. Once the estimate of work has been approved, TLC Solutions will perform the service request and issue an invoice at the end of the month.
All Payments Non-Refundable: All deposits and payments made in advance by Client, are non-refundable.

Cancellation Fees:
1. Fixed Fee Projects: In the event Client terminates this Agreement in accordance with Section 8.2(a) or TLC Solutions terminates this Agreement in accordance with Section 8.2(c), Client will pay TLC Solutions a cancellation fee equal to the greater of
  1. the amount equal to 25% of the total Project Fees; and
  2. the amount equal to any unpaid Fees due per the Project Agreement
2. Monthly Retainer Projects: In the event Client terminates this Agreement in accordance with Section 8.2(a):
  1. Within the minimum Term of a Monthly Retainer Project set out in a Project Agreement, Client will pay TLC Solutions a cancellation fee equal to the amount of unpaid Fees due per the Project Agreement for the remainder of the Term;
  2. At any time following the minimum Term of a Monthly Retainer Project, Client will pay TLC Solutions a cancellation fee equal to one months’ Fees.

If no minimum Term is set out in a Project Agreement, the minimum Term for the purposes of this section will be deemed to be six months; and

For greater clarity, Monthly Retainer Projects may not be “paused” except with the express written consent of TLC Solutions, and may otherwise only be terminated in accordance with Section 8.2(a), subject to payment of cancellation fees as set out in this section.

Filming Services & On-site Consultation: If Client cancels a confirmed filming session or on-site consultation:
1. within 14 business days of the scheduled filming date, Client will pay TLC Solutions a cancellation fee in an amount equal to 50% of the Fees attributed to the filming session as per the Project Agreement; or
2. within 7 business days of the scheduled filming date, Client will pay TLC Solutions a cancellation fee in an amount equal to 100% of the Fees attributed to the filming session as per the Project Agreement.
WordPress:
1. WordPress Installations: Client acknowledges that costs associated with the installation of WordPress varies with different hosting providers. Some hosting providers will allow access to an administrative area of their web server and if the login and password are provided to TLC Solutions then TLC Solutions will be able to perform the installation of WordPress at no additional cost. However, some hosting providers do not offer this service and there may be an additional cost for providing dynamic hosting as well as for the installation of WordPress. The Fees quoted in the Project Agreement do not include costs associated with the setting up of WordPress on web hosts that do not provide access to an administrative area where TLC Solutions can set-up WordPress manually.
2. WordPress & PHP Upgrades: Client acknowledges that periodically the developers of WordPress will release a new version of the WordPress software. An upgrade is not necessary to run a WordPress site hosted independently on a web server. An upgrade may be necessary when installing new features to the WordPress site if those features are released after the release of a WordPress or PHP upgrade. If Client requires an upgrade of WordPress or PHP then an Fee will be charged by TLC Solutions or the company hosting the site, at that time.
Invoices. Unless a Project Agreement provides otherwise, TLC Solutions will invoice monthly for all fees and expenses then due and payable under each Project Agreement, Net 30 days.
Disputed Charges. Notwithstanding any other provision of this Agreement, if the Client disputes any fees or expenses included in an invoice then the Client will pay the undisputed fees or expenses specified in the invoice and TLC Solutions and the Client will cooperate with each other in an attempt to resolve the dispute.
Taxes. The Client will be responsible for paying any applicable goods, services, or value added taxes on any Services and Deliverables it receives under this Agreement, which will be invoiced by TLC Solutions hereunder. The Client may not, except to the extent required by Applicable Law, withhold any amounts on payments to be made hereunder. If the Client believes it has any obligation to withhold any amount under Applicable Law, it will notify TLC Solutions thereof and will cooperate in good faith with TLC Solutions in its efforts, to the extent permitted by applicable law, to recover any such amounts from the applicable authorities.
Currency. Unless otherwise stated in a Project Agreement, TLC Solutions will invoice the Client in Canadian dollars for Canadian based clients, and US dollars for US based clients.

Article 4: Acceptance Tests

Acceptance Tests. As part of the Services, the Parties will prepare and conduct Acceptance tests and reviews described in this Agreement to confirm that the Deliverables (and the Services through which they are or were delivered) are operational, reliable, and meet or exceed the Specifications, and to repair and resolve any Defects. Without limiting the foregoing the Parties will, via these Acceptance tests:
1. demonstrate the suitability and workability of the Deliverable;
2. where applicable, verify correct integration, interconnectivity and interoperability of all components of the Deliverable, including that it is integrated, interconnected and interoperable with any other related hardware, software and processes of the Client in accordance with the Client Items; and
3. verify the functionality and design of the Deliverable against the Specifications.
Timing. TLC Solutions will submit relevant Deliverables to the Client for Acceptance in accordance with a timetable, either set forth in the applicable Project Agreement or otherwise agreed in writing by the Parties acting reasonably (or, failing such agreement, such reasonable period determined by TLC Solutions as necessary to meet any timetable set out in the Project Agreement with a reasonable period of time for the Client personnel and Project Agreement Team Members to review the Deliverables). The Parties will cooperate in Acceptance testing and review.
Conduct of Acceptance Testing. Unless a Project Agreement provides otherwise, the Client will conduct Acceptance tests and will promptly deliver all results to TLC Solutions, and the following provisions will apply
1. Testing. When a Deliverable is submitted for Acceptance testing, the Client will test or review (as applicable) the Deliverable in accordance with the Specifications within the time period set out in the Project Agreement, and failing any such time period being set out, ten Business Days (in each case, the “Testing Period”).
2. Steps
  1. Conformance.If a Deliverable conforms to the Specifications, then the Client will give a written acceptance notice for the Deliverable to TLC Solutions.
  2. Non-conformance.If in Client’s good faith opinion a Deliverable does not conform to the Specifications, then Client will give to TLC Solutions a written notice describing with reasonable specificity the nature of such nonconformity. Upon receipt of such Notice, TLC Solutions will determine, in good faith, whether such Deliverable is nonconforming to the Specifications, in its sole discretion. If TLC Solutions determines that such Deliverable is nonconforming, TLC Solutions will revise the Deliverable at its own expense (unless otherwise provided in the Project Agreement) so that it conforms to the Specifications and then resubmit the Deliverable for further Acceptance testing or review (as applicable) under this provision. If TLC Solutions determines that such Deliverable is in compliance with the Specifications, TLC Solutions will provide Client with written notice to that effect and the Deliverable will be deemed to have been accepted by the Client.

Deeming Provision.The Client will be deemed to have delivered a notice of acceptance unless it delivers a notice of non-conformance within the applicable Testing Period.

Iteration.This process will be repeated, where applicable, for each Deliverable until the Deliverable is Accepted, unless the Parties follow one of the courses of action in Section 4.3(b)(v) below.
Consequences of Failure.If a Deliverable fails to pass Acceptance more than twice times, then the Parties may take one or more of the following actions by way of mutual written consent: (A) extend the time for the Acceptance testing; or (B) negotiate a revision of the Specifications for the Deliverable and the fees payable for the Deliverable.

Article 5: License and Ownership

Title to Deliverables. Except only for those Third-Party Materials as defined in Section 2, all rights and title in and to each of the Deliverables will pass, free and clear of any Claims, to Client upon TLC Solutions’ receipt of all Fees payable under this Agreement for each Deliverable.
Title to Licensed Third Party Materials. The Client acknowledges and agrees that TLC Solutions’ project methodology includes the use of third party and open source Intellectual Property Rights, and that TLC Solutions may include the same in a Deliverable without the Client’s express prior written consent by concurrently delivering the applicable license agreement therefor and by complying at all times with such license. For greater certainty, this provision applies to “open source” or “free” software or materials, whether or not the license thereto is copyleft, provided that where any Software Deliverable is commercial off-the-shelf software, it shall be sufficient if the Documentation made available to the Client by TLC Solutions contains a reference to the open source or free software used therein. In the event that the Deliverables contain materials licensed by TLC Solutions from third-parties, whether open source or otherwise, (E.g. stock images, licensed music, etc.) (“Third-Party Materials”) TLC Solutions’ third-party licensors retain all rights, including Intellectual Property Rights, to such Third-Party Materials and Client will not acquire any rights, including without limitation Intellectual Property Rights and registrations, in the Third-Party Materials. Client acknowledges that the continued use of such Third-Party Materials by Client may be subject to additional or continuous payment by Client pursuant to the terms of the Third-Party Materials license agreements. TLC Solutions will inform Client of the inclusion of any Third-Party materials that are subject to renewal or additional payment by Client and provide Client with copies of any such Third-Party Materials license agreements.
Title to Client Materials. Title to any documents, equipment, materials, data, Client Items or Intellectual Property Rights supplied by or on behalf of the Client to or for the benefit of TLC Solutions in relation to any Project Agreement (collectively, the “Client Materials”) will remain with the Client at all times throughout the term of this Agreement. At no time will title to the Client Materials pass to TLC Solutions.
1. License to Use. Client hereby grants TLC Solutions a non-exclusive, royalty-free, worldwide license during the Term to use the Client Materials to perform under this Agreement and expressly not for any collateral purpose.
2. Clarification. For greater certainty, where the Client Materials include materials licensed to the Client by a third party, TLC Solutions’s access to or use thereof may be conditional upon TLC Solutions’s execution of a prescribed form of written agreement.
3. Return. TLC Solutions will return to the Client each of the Client Materials in TLC Solutions’s possession or control:
  1. at any time upon request by the Client (on the Client’s understanding that, if the Client Material is an Client Dependency, TLC Solutions may thereby be prevented from performing hereunder);
  2. after TLC Solutions’s completion of the work for which the Client Material was provided or on behalf of the Client to or for the benefit of TLC Solutions; and

upon expiration or termination of the relevant Project Agreement or this Agreement.

Publicity. Client hereby grants TLC Solutions a non-exclusive, worldwide, and irrevocable license to use the Deliverables and any constituent part thereof for
1. the purpose of competing in design competitions;
2. use in future publications by TLC Solutions on design; and
3. use by TLC Solutions in the marketing of its services on any media; provided that where applicable, Client will be provided with credit for such usage of the Deliverables. In accordance with the above, the Client hereby consents to permit TLC Solutions to display the Client’s name or trademark on the TLC Solutions’ website and in any investor pitch decks or related materials.
Feedback. Without limiting Section 5.3, Client agrees that any of Client’s comments, suggestions, ideas, impressions, and improvements relating to the Deliverables provided by or on behalf of Client (collectively, “Feedback”) may be used freely by TLC Solutions, including in future versions, maintenance or support, updates to the Deliverables, or otherwise through commercial or non-commercial exploitation, without any compensation or notice to Client.
Delivery. Unless stated otherwise in an Project Agreement, where physical delivery is required, the Client will be responsible for all shipping and delivery costs of the Deliverables, and TLC Solutions will select an appropriate method of delivery as may be required by this Agreement, including to meet any project timetables. Where electronic delivery is required, TLC Solutions will use the method for electronic delivery determined in or through the Project Agreement or, failing that, a commercially reasonable method selected by the Client.
Outsourcing. Notwithstanding anything else in this Agreement, including the Software License Agreement, if the Client enters into a contract with a third party (or third parties) in which a third party manages all or a portion of the Client’s information technology resources (in this Section 5.7, an “Outsourcer”), the Client may sublicense the Client’s rights to use any licensed Deliverables and applicable Software through all or a portion of the Client’s license to such Outsourcer, provided that:
1. the Outsourcer only uses the Deliverables and applicable software for the Client’s internal operations and not for the benefit of itself or another third party;
2. the Outsourcer agrees to comply with the terms and conditions of this Agreement; and
3. the Client provides TLC Solutions with written notice that an Outsourcer will be using the Deliverables and applicable Software on the Client’s behalf.

Article 6: Confidentiality, Security and Personal Information

Confidentiality. In connection with this Agreement, each Party (in this Article, the “Disclosing Party”) has furnished or may furnish or has made or will make available to the other Party (in this Article, the “Receiving Party”) Confidential Information. At all times during and after the term of this Agreement, the Receiving Party will protect the Confidential Information using the same degree of care as it would use to protect its own similarly confidential information, but in any event never less than a reasonable degree of care, and will take all reasonable steps to safeguard the Disclosing Party’s Confidential Information from unauthorized disclosure as set out in this Agreement.
The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as strictly necessary in the performance of its obligations under this Agreement or in enforcing or defending its rights or obligations under this Agreement (collectively, in this Article, the “Purpose”) or as expressly permitted by this Article. Without limiting the generality of the foregoing, the Receiving Party will not directly or indirectly do any of the following:
1. use any of the Disclosing Party’s Confidential Information for any purpose other than the Purpose;
2. copy or reproduce any of the Disclosing Party’s Confidential Information, except as strictly necessary to carry out the Purpose;
3. disassemble or decompile any technology, software or hardware included in the Disclosing Party’s Confidential Information, or otherwise attempt to reverse engineer the design, function or, if applicable, source code of any such Confidential Information, except (i) as strictly necessary in carrying out the Purpose, and (ii) if this prohibition is limited or restricted in any way by any applicable law, it will only apply to the maximum extent permitted by such law; or
4. disclose any of the Disclosing Party’s Confidential Information except in the following
  1. limited disclosure strictly to those of the Receiving Party’s directors, officers, consultants, legal representatives, accountants, advisors and personnel and permitted subcontractors (i) to whom disclosure is necessary to carry out the Purpose, and (ii) from whom the Receiving Party is owed legally-binding obligations of confidentiality at least as strict as those set out in this Agreement (collectively, in this Article, the “Further Recipients”), provided that, at all times, the Receiving Party will be responsible to the Disclosing Party for the acts and omissions of the Further Recipients as if such acts and omissions were its own, or
  2. disclosure limited strictly to the extent the Receiving Party or any of its Further Recipients is required (including, without restriction, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other similar process) by any law to disclose any of the Disclosing Party’s Confidential Information, provided that it (unless prohibited by such applicable law) gives the Disclosing Party advance written notice as soon as practicable in the circumstances so that the Disclosing Party may contest the disclosure or seek an appropriate protective order, and further provided that it cooperates reasonably and in good faith with the Disclosing Party in its efforts to prevent, restrict or contest such required disclosure.
5. Return or Destruction. Upon termination of this Agreement or upon the written instruction of the Disclosing Party, the Receiving Party will return or destroy all originals and copies in any form of the Disclosing Party’s Confidential Information in its or its Further Recipients’ possession or control and will destroy or cause to be destroyed all originals, copies or other reproductions or extracts of such Confidential Information. For the purposes of this Section 6.3, information stored in electronic form will be deemed to be destroyed when the charged Party performs a commercially reasonable application or operating system level delete function with respect to such data, provided that it does not thereafter directly or indirectly perform or permit any recovery or restoration the same by any means (including by way of undeletion, archives, backups or forensics). Receiving Party will provide Disclosing Party with a certificate confirming the deletion of all Confidential Information in its possession pursuant to this Section 6.3. Each Party will be responsible for ensuring that its Further Recipients fully comply herewith.
6. Ownership. Except as set out in this Agreement, no Party grants to the other any right, title or interest in or to its Confidential Information.
7. Exceptions. The obligations of confidentiality set out in this Article will not apply in respect of uses or disclosures of information where:
  1. the Disclosing Party consents in writing; or
  2. the Receiving Party can establish with documentary evidence that, other than as a result of a breach of this Agreement, the information:
    1. is available in the public domain;
    2. was disclosed to it by a third party without violating confidentiality obligations; or

was already independently known by it or was subsequently and independently developed by it;

in each case without any direct or indirect use or access to such Confidential Information whatsoever.

Information Security Management. In addition to any particular requirements set out in any Project Agreement, Receiving Party will implement and maintain an information security management program with standards that are no less rigorous than accepted industry practices, and will comply with all Applicable Laws to protect Disclosing Party’s Confidential Information from unauthorized access, destruction, use, modification, or disclosure. If Receiving Party experiences an actual or suspected security breach in relation to Disclosing Party’s Confidential Information, Receiving Party will notify Disclosing party of the same as soon as practicable after it becomes aware of it.
Personal Information. Without limiting any of the foregoing, each Receiving Party will use all reasonable efforts to
1. guard against unauthorized access to, use and disclosure of all Personal Information received by it as part of the Confidential Information; and
2. fully comply with all Applicable Laws applicable to the Disclosing Party’s Confidential Information or to its Personal Information, including the Personal Information Protection and Electronic Documents Act (Canada), as it may be amended or replaced by successor legislation from time to time, and all regulations promulgated thereunder.

Article 7: Representations, Warranties, And Liability

Corporate Authorization and Status. Each Party represents and warrants as follows:
1. it has full power and authority to enter into and perform its obligations under this Agreement;
2. the individual or individuals signing this Agreement on behalf of the Party has or have been properly authorized and empowered to enter into this Agreement;
3. it is in good standing in its jurisdiction of incorporation and that all of its constating and organizational documents are complete, fully executed and in order; and
4. such Party’s execution and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that such Party now or in the future owes to any other person.
TLC Solutions. TLC Solutions represents, warrants and covenants as follows:
1. Intellectual Property Rights:
  1. TLC Solutions is the sole owner or has a valid license to all Intellectual Property Rights in and to the Deliverables necessary to deliver them in accordance with the provisions of this Agreement.
  2. The Deliverables will be delivered with the Intellectual Property Rights necessary to permit the Client to take possession thereof in accordance with Article 5.
2. Services. The Services will be performed by persons who have the qualifications, knowledge, skill and ability to perform these services.
3. Deliverables:
  1. All Software contained in any Deliverables will be free and clear of all Claims, liens, charges and encumbrances.
  2. Each Deliverable, as Delivered, will conform to, and when used in accordance with its Documentation will function, operate, perform and generate results in accordance with, the Specifications for the Deliverable throughout the Term.

For greater certainty, the warranty set out in Section 7.2(c)(ii) does not apply to Defects in a Deliverable to the extent they are caused by:
1. use of any Deliverable in breach of this Agreement; or
2. modification of the Deliverable by a person other than TLC Solutions or someone for whom TLC Solutions is responsible hereunder.

Disclaimers. The representations and warranties expressly set forth in this Agreement are in lieu of all other conditions, representations and warranties (express, implied or statutory), including representations and warranties of merchantable quality or fitness for a particular purpose. To the extent that any Deliverable (including the hosted elements thereof) depends on the public internet, (a) any representation made regarding access, performance, speeds, reliability, availability, use or consistency of thereof is on a “commercially reasonable efforts” basis when it relates to the public internet; and (b) without limiting any obligations relating to security hereunder, data, messages, information or materials sent over the public internet may be intercepted by third parties. TLC Solutions cannot and does not guarantee the quality, stability, or functionality of any product created by or provided by the developers of WordPress and the developers of WordPress plug-ins. WordPress is provided under a GNU General Public License and as such, TLC Solutions cannot and does not provide any warranty or guarantee with respect to WordPress software.
Indemnity
1. TLC Solutions Indemnities. TLC Solutions will defend, indemnify and hold harmless the Client, its subsidiaries and Affiliates, and their respective directors, officers, employees, personnel, representatives and agents (collectively, the “Client Indemnitees”) from and against any and all of the following Claims:
  1. Claims that any Deliverables or Services provided by or on behalf of TLC Solutions hereunder directly or indirectly infringe any third party Intellectual Property Rights enforceable in the United States or Canada, except to the extent the Claim arises from: (A) the Client’s use of an altered version of the Deliverable, unless the alteration was carried out by or on behalf of TLC Solutions, (B) the Client’s use of a non-current version of any Software incorporated by or on behalf of TLC Solutions in any Deliverable, provided TLC Solutions has made a current version available to the Client that materially complies with the Specifications, or (C) the use of the combination of the Client’s equipment or other hardware or software not provided by or on behalf of TLC Solutions with the Deliverable or approved in writing by TLC Solutions (which approval will be deemed if such other hardware or software is expressly contemplated in this Agreement); and
  2. Claims directly or indirectly arising from, connected with or relating to any fraud, breach of Applicable Law, gross negligence or wilful misconduct by TLC Solutions in connection with its performance hereunder;

Notwithstanding the foregoing, and without limiting the generality of any other provision herein benefiting TLC Solutions, a Claim is not indemnifiable under this Section 7.4(a) to the extent TLC Solutions is prejudiced by

the Client’s failure to promptly notify TLC Solutions of any indemnified Claim; or

the Client’s breach of Section 7.4(c).

Client Indemnities. The Client will defend, indemnify and hold harmless TLC Solutions, its subsidiaries and Affiliates, their respective directors, officers, employees, personnel, representatives and agents (collectively, the “TLC Solutions Indemnitees”) from and against any and all of the following Claims:
1. Claims arising from such matters as may be identified for specific Client indemnity under any Project Agreement;
2. Claims that any Client Materials directly or indirectly infringe any third party Intellectual Property Rights enforceable in the United States or Canada, except to the extent the Claim arises from: (A) TLC Solutions’s use of an altered version of the Client Materials, unless the alteration was carried out by or on behalf of the Client or its personnel, or (B) use of a non-current version of any Software incorporated by or on behalf of the Client in any Client Materials, provided the Client has made a current version available to TLC Solutions; and

Claims directly or indirectly arising from, connected with or relating to Client’s breach of this Agreement, its breach of Applicable Law, or its fraud, gross negligence, or wilful misconduct in connection with its performance hereunder;

Notwithstanding the foregoing, and without limiting the generality of any other provision herein benefiting the Client, a Claim is not indemnifiable under this Section 7.4(b) to the extent the Client is prejudiced by

the Client’s failure to promptly notify TLC Solutions of any indemnified Claim; or
the Client’s breach of Section 7.4(c).

Procedure. In each of Section 7.4(a) and Section 7.4(b), the Client Indemnitees or TLC Solutions Indemnitees, as the case may be, will give the applicable indemnifying party control over the defence of and settlement negotiations with third parties relating to all Claims, provided that:
1. the Client or TLC Solutions, as the case may be, retains the right to participate in the defense of and settlement negotiations relating to all Claims with counsel of their own selection at their sole cost and expense; and
2. the applicable indemnifying party will not settle any Claims without the prior written consent of the Client or TLC Solutions, as the case may be, which consent will not be unreasonably withheld, conditioned or delayed (except that the Client or TLC Solutions, as the case may be, may in their discretion withhold their consent if a proposed settlement requires that any of the Client Indemnitees or TLC Solutions Indemnitees, as the case may be, be parties to the settlement or imposes any restriction, obligation or liability on any of the Client Indemnitees or TLC Solutions Indemnitees, as the case may be).
Infringement Procedure. If an indemnified Claim pursuant to Section 7.4(a)(i) is likely or imminent, or such a Claim has occurred, then TLC Solutions may, at its expense, promptly do one or more of the following to the extent commercially practicable:
1. procure for the Client from the third party making the Claim the right to continue using the Software including the allegedly infringing Deliverable, part or component thereof;
2. reconfigure the Software, or re-work or re-deliver the allegedly infringing component, part or Deliverable, to make it non-infringing; or

substitute other goods, services or software of similar capability that would otherwise comply with this Agreement but that do not infringe such third party Intellectual Property Rights, and

Indemnities Survive. The rights of the Client and TLC Solutions to seek indemnification on behalf of the Client Indemnitees and TLC Solutions Indemnitees under the indemnities set out in Section 7.4(a) and Section 7.4(b), respectively, will survive at all times during and after the term of this Agreement.

Limitations and Exclusions of Liability. Except for a breach of Article 6 or a Claim that is subject to an indemnity provided in Section 7.4, in no event will:
1. either Party be liable for any Claims made by the other Party for any special, indirect, incidental, punitive or consequential damages of whatsoever kind and howsoever arising, including loss of business opportunities, profits or revenues, whether or not the possibility of such damages or loss of opportunities, profits or revenues has been disclosed to the other Party in advance or could have been reasonably foreseen by such Party, and whether or not any limited remedy specified in this Agreement is deemed to have failed of its essential purpose;
2. TLC Solutions’s aggregate liability for direct damages under any particular Project Agreement exceed the total amount of fees actually paid by the Client to TLC Solutions under the particular Project Agreement during the prior six (6) month period immediately preceding the date upon which the Claim arose.

Article 8: Term, Default and Termination

Term. This Agreement will be effective as of the Effective Date and will continue for the Term indicated on the Project Agreement, or if none is stated, until there remains no further outstanding Services to be performed pursuant to any existing Project Agreement. For greater certainty, the completion, expiration, or termination of any or all work hereunder will not, by itself, terminate this Agreement.
Termination. Each Project Agreement under this Agreement may be terminated as follows:
1. For Convenience. Unless an Project Agreement expressly states that it may not be so terminated, by either Party for its sole convenience upon delivery of thirty (30) calendar days prior written notice of termination to the Client subject at all times to the cancellation fee provisions set out in Section 3;
  1. For Digital Retainers.After the initial period set out in the retainer contract, Digital Marketing Retainers run on monthly retainer cycles. Either party may terminate this agreement by providing written notice to the other party provided the notice is given a minimum of thirty (30) days prior to the end of the retainer cycle with termination. In the event that termination notice is not provided within the aforementioned notice period, this agreement shall will stay in effect, under the same terms and conditions, and termination will take effect after the completion of the next full retainer cycle.
2. Closed Project. By TLC Solutions, in their sole discretion, in the event that the Services hereunder have been a Dormant Project for a period of six months.
3. Harassment. By TLC Solutions, with immediate effect in the event that Client or any of its employees, contractors, or personnel harasses, threatens, or abuses any TLC Solutions employees, contractors, or personnel. TLC Solutions’ termination under this Section8.2(c) will trigger the cancellation fee provisions set out in Section 3.3 as if this Agreement were cancelled by Client.
4. Default. By either Party upon written notice if the other Party (or a person for which such other Party is responsible) is in default of or breaches any provision of the particular Project Agreement or this Agreement and such breach or default
  1. is incapable of cure within a fifteen (15) calendar day period from the day that the terminating Party delivers notice to the breaching Party specifying the particulars of such breach; or
  2. continues for such fifteen (15) calendar day period without cure by the other Party, and in each case “cure” means the full rectification, which shall be determined in the reasonable discretion of the affected Party, of such breach or default in compliance;
5. Non-Payment. By TLC Solutions upon written notice if the Client does not pay any invoices when due and payable and fails to cure such breach within seven (7) calendar days’ from the day that TLC Solutions delivers notice of such breach to the Client, subject to Section 3.3; and
6. Insolvency or Cessation. By either Party upon written notice if the other Party
  1. is bankrupt, insolvent, or unable to discharge its liabilities as they become due;
  2. commences, maintains or is subject to any proceedings for the benefit of insolvent debtors or for protection from its creditors or relating to its liquidation, dissolution or winding-up or insolvency or the appointment of a receiver, receiver-manager or similar officer or custodian for such Party or all or any material part of its assets or business;

makes an assignment for the benefit of all or substantially all of its creditors;

suspends or ceases, or threatens to suspend or cease, to carry on its business in the normal course; or
is subject to any liquidation, winding-up or dissolution.

Obligations upon Expiration or Termination. The Parties will remain responsible and liable for all of their respective obligations and liabilities accrued before the expiration or termination of any Project Agreement or this Agreement. Upon the expiration or termination of any Project Agreement or this Agreement for any reason whatsoever, and without limiting any remedies available to the Parties:
1. the Client will pay to TLC Solutions all fees for services properly performed and Deliverables delivered to and Accepted by the Client prior to the effective date of termination, provided that, with respect to any fees that are “fixed price”, the amount payable to TLC Solutions will be a portion of the total amount payable, as determined by the Parties acting reasonably having regard to the services performed and Deliverables completed and accepted by the Client; and
2. TLC Solutions will deliver to the Client all originals and copies, in whatever form or medium, of all completed Deliverables then existing and all work-in-progress regarding those Deliverables for which the Client has paid the relevant payments hereunder.
Survival. Notwithstanding any other provision of this Agreement, those provisions of this Agreement that by their nature ought to survive any expiration or termination of this Agreement, and all other provisions necessary to their interpretation or enforcement, will so survive and will remain in full force and effect and be binding upon the Parties as applicable, including without limitation Section 2.7, Section 3.4, Section 3.6, Article 5, Article 6, Section 7.2(c), Section 7.3, Section 7.4, Section 7.5, Article 8, Article 9 and Article 10.

Article 9: Dispute Resolution

Dispute Resolution. Each Party agrees to work co-operatively with the other Party at all times in good faith and to take all reasonable steps to avoid delays in order to ensure each Project Agreement is performed in a timely manner. Each Party will advise and encourage its personnel, employees agents and permitted subcontractors to attempt to resolve any Disputes at the first level and at the first opportunity and to develop work-around plans to avoid delays. The Parties agree that unresolved Disputes will be resolved by arbitration at Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration. Any Party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in Vancouver, British Columbia. The arbitration shall proceed in accordance with the provisions of the Arbitration Act (British Columbia). The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties.
Governing Law and Jurisdiction: This Agreement and all Disputes will be governed by, and be construed in accordance with, the laws of British Columbia and the laws of Canada applicable in British Columbia, which will be deemed to be the proper law of this Agreement. All unresolved Disputes will be resolved by the courts of British Columbia sitting in the City of Vancouver, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts for those purposes. Notwithstanding the foregoing, (a) each Party may seek injunctive relief in any court of competent and appropriate jurisdiction, and (b) the Parties hereby exclude the application of the United Nations Convention on the International Sale of Goods, pursuant to Article 6 of Schedule 1 to the International Sale of Goods Act, RSBC 1996 c. 236.

Article 10: Interpretation

Schedules. The following Schedules form part of this Agreement:
Schedule A: Definitions
Interpretation. In this Agreement, unless expressly indicated otherwise:
1. a reference to “this Agreement” or “herein”, “hereof”, “hereunder” and other similar terms refers to this Agreement (including the Schedules thereto) as a whole, and not just to the particular provision in which those words appear,
2. headings are for convenience of reference only, do not constitute substantive matter and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions,
3. words importing:
  1. persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations;
  2. the singular number also include the plural and vice versa; and

a gender include all genders

references to days, weeks, months, quarters or years means calendar days, weeks, months, quarters or years, respectively,
unless otherwise specified, references to currency or amounts payable are references to the lawful money of Canada,
“person” includes an individual, corporation, partnership, government, joint venture, association, trust, unincorporated organization, society and any other legal entity,
A Party’s “discretion”, “option”, or any variation thereof or similar language means such Party’s sole, absolute and unfettered discretion or option,
the word “or” is not exclusive, whether or not used with the phrase “and/or”,
“law” includes common law, equity, statutes, ordinances, by-laws, regulations and mandatory guidelines enforceable by a governmental or regulatory authority, and reference to a specific law includes all regulations and mandatory guidelines made under the law and all amendments thereto, or replacements thereof, in force from time to time;
the word “including”, or similar language, is not limiting, whether or not phrases such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto, and
“Section” means a section, subsection, paragraph or sub-paragraph of this Agreement and “Article” means a captioned part or article of this Agreement, unless the reference thereto appears in an Project Agreement or other Schedule, in which case it means an article, section, subsection, paragraph or subsection of such Project Agreement or other Schedule.

Joint Drafting. The Parties have jointly contributed to the drafting of this Agreement and other documents executed and delivered by the Parties under this Agreement. Accordingly, it is the intention of the Parties that the principle of contra proferentumwill not apply to the interpretation of this Agreement or other documents executed and delivered by the Parties under this Agreement and neither this Agreement nor any such other documents will be interpreted in favour or against either Party on the basis that the Party drafted particular provisions of this Agreement or such other document.
English Language. The Parties have expressly requested and required that this Agreement and all related documents be drawn up in the English language, and any translations of this Agreement or related documents are for convenience only and are not binding on the Parties. Les Parties ont expressément demandé et exigé que le présent accord et tous les documents connexes soient rédigés en anglais. Toute traduction de cet accord ou de documents connexes est uniquement fournie à des fins de commodité et ne lie pas les Parties.

Article 11: Miscellaneous

Non-Solicit. Client will not, without prior written consent from TLC Solutions, directly or indirectly (whether individually, jointly or in conjunction with any person) in any manner (including any individual, firm, association, syndicate, company, corporation, or other business enterprise, as principal agent, shareholder, officer, independent contractor, or in any other manner whatsoever), during the term of this Agreement and for a period of twelve (12) months thereafter seek in any way to persuade or entice any person to terminate an employment, advisory or consulting position with TLC Solutions, or hire or retain the services of any such person, provided that nothing in this provision shall prevent Client from directly or indirectly hiring or retaining any person pursuant to general, public job advertisements that are not targeted to TLC Solutions’s personnel
Force Majeure. Neither Party will be responsible or liable for any delay or failure to perform due to a Force Majeure Event, provided that the Party so affected:
1. notifies the other Party as soon as practicable in the circumstances of the nature and anticipated duration of the Force Majeure Event as well as the steps it intends to take to overcome the Force Majeure Event; and
2. takes all reasonable steps to prevent and minimize the delay or failure to perform.

Notwithstanding the foregoing, a lack of credit or financing will not qualify as an event of Force Majeure for the Client, nor will this Section 2 operate to permit non-payment by the Client in respect of any work that TLC Solutions has performed prior to TLC Solutions receiving notice from, or giving notice to, the Client in respect of a Force Majeure Event.

Assignment. Neither Party will assign this Agreement to another party without the prior written consent of the other Party, which consent may be unreasonably withheld, conditioned or delayed in such other Party’s sole discretion. Notwithstanding the foregoing, TLC Solutions may assign this Agreement to an Affiliate or to an acquirer or all or substantially all of its assets or undertakings without such consent of the Client.
No Agency or Partnership. The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. At all times TLC Solutions will conduct TLC Solutions’s business and affairs in a manner consistent with maintaining its independent contractor status. Nothing in this Agreement or done under this Agreement in any way limits, prohibits or restricts either Party from engaging in discussions or entering into agreements with any other person at any time regarding similar services, deliverables and other work product as those performed, delivered or provided under this Agreement, subject always to Article 6.
Severability. If any of the provisions or part thereof contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality, or enforceability of the remaining provisions or parts thereof contained herein will not be in any way affected or impaired thereby.
Amendment and Waiver. This Agreement may not be amended except by a written instrument having direct reference to this Agreement, and in either case must be signed by both Parties. No indulgence or forbearance by either Party will constitute a waiver unless the waiver is expressed in writing and signed by the Party granting the waiver, in which case the waiver will be effective only in the specific instance and for the specific purpose for which it is given.
Further Assurances. Each of the Parties agree to execute and deliver at the request of the other Party all such further documents, deeds and instruments, and will do and perform all such further acts as may be reasonably necessary to give full effect to the intent and meaning of this Agreement.
Remedies Cumulative. The remedies of the Parties set out in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, this Agreement, any other agreement between the Parties or otherwise.
Enurement. This Agreement will enure to the benefit of and be binding on the successors and assigns of the Client and on the successors and permitted assigns of TLC Solutions.
Notices. Whenever in this Agreement it is required or permitted that notice or demand be given or served by either Party to or on the other, such notice or demand will be in writing and will be deemed delivered upon the earlier of
1. actual receipt by the intended recipient or
2. delivery in person or by reputable overnight courier

in each case to the Client Contact denoted in the Project Agreement.

[End of Terms of Service]

Schedule A: Definitions

Definitions. In this Agreement, the following definitions apply:

“Acceptance” means that the relevant Deliverables have passed acceptance testing or review and received written or deemed acceptance pursuant to the procedures set out in Article 4 and, if applicable, the relevant Project Agreement;
“Specifications” means, with respect to a Deliverable, those criteria used to determine that such Deliverable (and the Services through which it is or was delivered) comply with its Specifications and, thus, should be Accepted, as delivered in writing by TLC Solutions to the Client in connection with its delivery of the Deliverable that are reasonably designed to test for Acceptance of the Deliverable.
“Affiliate” means any body corporate or partnership that directly or indirectly controls, is controlled by, or is under common control with a Party and “control” in this context means an ability to exercise a majority voting power or the ownership of the majority of the issued shared capital or units, or the power to direct or cause a direction of the management of such corporation or partnership by contract or otherwise;
“Agreement” means this Master Services Agreement, together with such Project Agreements and other Schedules and incorporated documents as appended in accordance herewith from time to time, in each case as amended in accordance with Section 6 from time to time;
“Applicable Law” means all laws that apply to a Party or to the performance of its obligations under this Agreement;
“Business Day” means a day that is not a Saturday, Sunday or a statutory holiday in British Columbia, all based on local time in Vancouver, British Columbia;
“Claims” means any and all losses, damages (including personal and bodily injuries and property damage), claims, counterclaims, suits, complaints, disputes, demands, actions, penalties, fines, causes of action, liabilities, obligations, liens, charges, encumbrances, judicial or administrative proceedings, costs, expenses, and disbursements of any nature or kind (including reasonable fees and disbursements for the investigation, prosecution or defence thereof on a solicitor and own client basis), whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal;
“Client Contact” means those individuals designated as such in an Project Agreement;
“Client Items” means facilities, equipment (including hardware and software), materials, items, information, data, resources, tasks, services, and other assistance that the Client is required to obtain, procure, perform or provide in order for TLC Solutions to perform hereunder;
“Confidential Information” means any and all data or information in any form (including all electronic, magnetic, physical, intangible, visual and oral forms), whether or not such information has been marked or indicated as confidential, that (i) is, at the time of its delivery to or access by the other Party, not generally known to any person without an obligation of confidentiality, (ii) by its nature or the nature of its disclosure, would reasonably be determined to be confidential, or (iii) is marked or indicated as proprietary or confidential (without requiring such marking), and in any event includes Personal Information, trade secrets, know-how, supplier and customer information (whether past, present, future and prospective), specifications, strategic plans, source code and related data, designs, drawings, financial information, marketing information, information as to business opportunities (including strategies and research and development), consultation records and plans, engineering information, and third party data;
“Defect” means (i) a failure of any Deliverable to perform, operate or function, in conformity with, or any deficiency in any aspect of the Deliverable when compared against, its Specifications and Documentation, or (ii) in Acceptance testing or review, a failure of any Deliverable to meet its Specifications;
“Deliverables” means all items, materials (including reports, designs, plans, presentations, hardware, software and all configurations, modifications, enhancements, additions and interfaces to or of software), goods and other work product that TLC Solutions is obligated to deliver to or for the benefit of the Client under a particular Project Agreement;
“Documentation” means all written materials and technical, help files, user and training manuals, guides, instructions or charts for any particular Deliverables, including all updates thereto that are required to be delivered by TLC Solutions to the Client hereunder;
“Disputes” means any and all disputes, controversies and Claims arising under, out of, in connection with, or in relation to this Agreement, or the making or validity of this Agreement, or its interpretation or any breach thereof, or any related matters or any legal relationship associated therewith or derived therefrom;
“Effective Date” means the date first set out above;
“Force Majeure Event” means unforeseen circumstances or causes beyond a Party’s reasonable control, including acts of God, acts of government, war, riots, terrorist acts, embargoes, acts of civil or military authorities, epidemic, pandemic, outbreak of infectious disease, public health crisis, threats to or breaches of national security, fires, ice and snow, extreme weather, floods, earthquakes, accidents, labor unrest, strikes, lock-outs, labour disruption, failure of the public internet, that, notwithstanding the commercially-reasonable efforts of a Party including its planning, backup, disaster recovery and mitigation procedures and processes, results in failure or delay in the performance by a Party of an obligation under this Agreement;
“Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity anywhere in the world, including, without limitation, trade secret law, that may provide a right in trade-marks, trade dress, corporate names, business names, domain names, logos, marks, software, computer programs, code of all types, layouts, interfaces, applications, tools, data, databases, database layouts, works (including literary, artistic, pictorial, graphic, and all compilations thereof), inventions, arts, processes, machines, manufactures, compositions of matter, Improvements, industrial designs, Confidential Information, formulae, know-how, and all other intellectual and industrial property (including goodwill in the foregoing), (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, claims, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing;
“Malware” means a virus, worm, Trojan Horse, malware or other code or routine that manifests contaminating or destructive properties that might damage, harm, detrimentally interfere with, or otherwise adversely affect a Deliverable or any computer system, hardware, software, equipment, or services in connection with which the Deliverable is operated or any related data, including a time bomb, logic bomb, back door, drop-dead device or any other disabling or limiting code, design or routine that could interrupt, lock, disable, erase, limit the functionality or use of, or otherwise adversely affect, or facilitate unauthorized access to, a Deliverable or related data;
“Personal Information” means all information about or data associated with an identifiable individuals that is protected under any Applicable Laws relating to privacy or personal information, including an individual’s name, phone number, postal address, email address, date of birth, age, gender, race, religion, income, physical description, education or employment details, voice recordings, visual images, and financial information (including credit card numbers, expiry dates, and security codes);
“Software” means any software programs, systems, applications, modules and components to be licensed or made available by TLC Solutions for Client’s use pursuant to any Project Agreement, including:
“Project Agreement” means a written statement of work, signed by both Parties, that describes Services and Deliverables, including all Specifications, Milestones, Specifications, fees, and other pertinent details, to be rendered by TLC Solutions pursuant to this Agreement;
“Specifications” means, with respect to any Services or Deliverables rendered hereunder,
1. all applicable technical, functional, operational, performance, result, form, content or other relevant specifications or requirements therefor set out in this Agreement, including those set out in the applicable Project Agreement;
2. where any Deliverable includes any Documentation, all applicable technical, functional, operational, performance, result, form, content or other relevant specifications or requirements set out in that Documentation; and
3. such other specifications, requirements or obligations that, while not expressly included in the Specifications as defined above, are inherently required or should reasonably be included in order for the Service or Deliverables or Work to meet the requirements set forth in this Agreement or the Specifications.

Terms and Conditions

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