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Digicon/NBS Schumann Terms and Conditions

NBS Schumann Terms and Conditions

1. Definitions

Additional Quote shall have the meaning set out in clause 9.2.

Additional Services shall have the meaning set out in clause 9.1.

Applicable Law means any relevant and applicable law, rule, statute, by-law, or regulation; any regulatory guidance, guideline, notice, opinion, code of conduct, treaty, or policy to the extent any of the forgoing have the force of law; and any order or decree of any court arbitrator, or other governmental or regulatory authority.

Business Day means 9:00am to 5:00pm Monday to Friday, excluding any day that is a public holiday in the Province of Alberta.

Cancellation Date means the date Digicon receives written notification from the Customer that a Project has been cancelled. 

Contract means the Digicon Order Form and these Terms and Conditions, entered into between Customer and Digicon for use of the Services for the Contract Term, as amended from time to time, including any changes made in accordance with clause 9.1 to the Contract which are agreed between Customer and Digicon and confirmed in writing by Digicon.

Contract Start Date means the date the Digicon Order Form is signed by the Customer.

Contract Term means the period of time from the Contract Start Date until the Termination Date.

Customer means the company who has entered into the Contract, for the use of the Services.

Customer’s Client means the company who has appointed, and entered into a contract with the Customer to design and/or deliver the Project.

Customer Materials means any data, documents, drawings, designs, reports, specifications, photographs, visual material and anything else which is in a material or electronic form which is submitted to Digicon to enable the Customer to obtain the benefit of the Services.

Data Protection Legislation means all Applicable Law governing the collection, use, disclosure, handling, protection and/or processing of personal data or personal information and on the free movement of such data or information which applies to either party’s processing activities under this Contract, including, without limitation, the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Personal Information Protection Act (Alberta).

Design Management Services means project management/advisory services to assist the Customer in the fulfilment of Customer’s obligations to their client through the application of managerial and administrative procedures.

Digicon means Digicon Information Inc., a subsidiary of NBS, incorporated and registered in Alberta, Canada (company number 8936523966) with its registered office at 3206 61 Street, Beaumont, Alberta, Canada T4X 1T5.

Digicon Order Form means the document which details the Services that Customer has committed to purchase from Digicon and forms part of the Contract together with these Terms and Conditions.

Digicon Personnel means any person who will perform Services on Digicon’s behalf, whether employed by Digicon or one of its group or subsidiary companies or any organization who may perform work for Digicon or NBS on a sub-contracted basis.

Estimated Completion Date means the date stated as such in the Digicon Order Form that the Specification shall be submitted by Digicon to the Customer.

Fee means the fee payable by the Customer, to Digicon, for the use of the Services and any Additional Services.

Force Majeure Event means any failure or delay in the Services, or any part thereof, occasioned by circumstances beyond either party’s reasonable control including (but not limited to) acts of God, fire, flood, explosion, accident, epidemic, pandemic, terrorist attack, war, computer viruses/malware, breakdown of equipment, failure of telecoms, internet or utilities (regardless of cause), governmental action, order or interference and labour disputes.

Infringing Item shall have the meaning set out in clause 10.7

Intellectual Property Rights means the patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world. 

IPR Claim shall have the meaning set out in clause 10.7. 

NBS means Digicon’s parent company, NBS Enterprises Limited, a company incorporated and registered in England and Wales (company number 978271) whose registered office is at The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH.

NBS Chorus shall mean NBS’s ‘software as a service’ known as “NBS Chorus”. 

Project means the Customer’s project as described in the Digicon Order Form.

Services means the Specification Services and/or the Design Management Services  and any other services provided by Digicon as set out in the Digicon Order Form.
Specification(s) means the well-structured, detailed description of the requirements, quality, standards, workmanship, materials, and completion of work to be done across Customer’s Project to be provided by Digicon as part of the Services, as expressly set out in the Digicon Order Form.

Specification Services means the preparation of architectural specifications, using Customer’s NBS Chorus licence, which sets out in detail the scope of work, materials to be used, methods of installation, and quality of workmanship for a construction project.

T&M Rate shall have the meaning set out in clause 3.10.

Termination Date shall have the meaning set out in clause 6.1.

Terms and Conditions means these terms and conditions which govern the Contract (together with any amendments to these terms and conditions provided in writing on the Digicon Order Form) as may be amended from time to time in accordance with clause 13.9.

Working Day shall have the meaning set out in clause 3.10.

2. General

 2.1.Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.

2.2.Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms.

2.3.Clause headings are inserted into these Terms and Conditions for convenience only, and they shall not be taken into account in the interpretation of these Terms and Conditions

2.4.Digicon shall have the right to make any amendments or changes to the Services that it deems reasonably necessary in order for the Services to be compliant with Applicable Law or health and safety regulations or requirements from time to time and shall not be in breach of the Contract as a result

2.5.Customer acknowledges this Contract represents a business-to-business transaction and any consumer legal protections under Applicable Law shall not apply.

3.Services

3.1. Digicon shall, during the Contract Term, provide the Services to the Customer on and subject to the Contract.

3.2. The Services are solely for the use and benefit of the Customer unless agreed otherwise in writing between the parties.

3.3. Digicon warrants that the Services will be provided with reasonable skill and care.

3.4. If the Services do not comply with clause 3.3 Digicon will, at Digicon’s discretion and expense, use reasonable endeavours to promptly correct such non-compliance.

3.5. The remedies in clause 3.4 constitute Customer’s sole and exclusive remedy for any breach of clause 3.3.

3.6. Digicon may subcontract the performance of any of its duties or obligations under this Contract provided that:

3.6.1. prior to the commencement of any work by any subcontractor, Digicon enters into a written agreement with such subcontractor that binds the subcontractor to terms that are at least as protective of the rights and information of the Customer as this Contract;

3.6.2. Digicon uses reasonable endeavours to subcontract only with subcontractors who have the requisite skills to perform any subcontracted obligations in accordance with the terms of this Contract.

In all cases, Digicon shall be responsible and liable for the acts and omissions of each subcontractor to the same extent as if such acts or omissions were by Digicon and shall be responsible for all fees and expenses payable to any subcontractor. 

3.7. Customer shall promptly provide Digicon with all necessary information, including the Customer Materials, for Digicon to provide the Services under the Contract.

3.8. Customer shall provide assistance reasonably required by Digicon including:

3.8.1. making decisions as may be reasonably required by Digicon, within a sufficient time period to enable the performance of the Services in accordance with agreed performance dates;

3.8.2. giving access to Digicon, as appropriate, to Customer’s premises, staff and systems as required by Digicon in order to perform the Services;  

3.8.3. making available appropriately skilled and qualified members of its staff with the authority to provide assistance to Digicon in relation to performance of the Services.

3.9. Digicon shall not be responsible for any non-compliance of the Services warranted in clause 3.3 as a result of Customer’s failure to comply with clauses 3.7 or 3.8.

3.10. The rates chargeable by Digicon in relation to Services provided on a time and materials basis (“T&M Rates”), for a six (6) hour day of Services (“Working Day”), shall be as set out in Digicon’s current rate card, available on request,

3.11. The amount charged for a Working Day will be subject to a minimum charge equal to half (1/2) a Working Day where Digicon Personnel work less than three (3) hours, and the rate and amount chargeable may be increased if the applicable person(s) are required to work in excess of a six (6) hour Working Day.

4. Specification Services

4.1. This clause 4 shall apply only where the Customer purchases Specification Services.

4.2. Digicon shall use reasonable endeavours to ensure the performance dates for the provision of the Services set out in the Digicon Order Form are met. Notwithstanding the foregoing, Customer acknowledges that all dates for provision of the Services are estimates only. If Digicon believes that the Services may be delayed, then Digicon shall inform the Customer in writing including the following information:

4.2.1. the reason for the delay

4.2.2. the nature and length of the delay anticipated; and

4.2.3. an approximate revised Estimated Completion Date.

5. Design Management Services

5.1. This clause 5 shall apply only where the Customer purchases Design Management Services.

5.2. The specific details of the Design Management Services to be provided by Digicon shall be as set out in the Digicon Order Form.   

5.3. Any Project specific exclusions shall be as set out in the Digicon Order Form.

5.4. Digicon shall not be liable for the design of any Project, unless agreed otherwise, and included in the Digicon Order Form.

6. Term and Termination

6.1. Performance of the Services shall commence on the Contract Start Date. Digicon shall use reasonable endeavours to deliver the Specification(s) to Customer on the Estimated Completion Date. If Customer has purchased Specification Services, the Contract shall terminate on the date of Digicon’s completion of the Specification Services, and if Customer has purchased Design Management Services, the Contract shall terminate on the date set out as such in the Digicon Order Form (“Termination Date”).

6.2. Without affecting any other right or remedy available, Digicon may terminate the Contract with immediate effect by giving written notice to Customer if Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment.

6.3. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

6.3.1. the other party commits a material breach of the Contract which breach is not capable of being cured or (if such breach is capable of being cured) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

6.3.2. the other party, or Customer’s Client, has a receiver and/ or manager and/or an administrator appointed over all or part of its assets or it enters into liquidation, whether compulsory or voluntary (other than for the purposes of the bona fide solvent reconstruction) or otherwise enters into any arrangement or composition with its creditors or otherwise expresses an inability to pay its debts when they become due; or

6.3.3. an order is made, or a resolution is passed for the winding up of the other party, or Customer’s Client, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order against it; or

6.3.4. the other party, or Customer’s Client ceases, or threatens to cease, to carry on business in the ordinary course.

6.4. On termination of the Contract in whole or part for any reason:

6.4.1. 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 and used in relation to those aspects of the Contract that have terminated;

6.4.2. Digicon may destroy, or otherwise dispose of, any of the Customer Materials in its possession in respect of those aspects of the Contract that have been terminated; 

6.4.3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the Termination Date, including the right to claim damages in respect of any breach of the Contract which existed at or before the Termination Date shall not be affected or prejudiced and any provisions of the Contract which are expressed or implied to continue after termination shall do so; and

6.4.4. no refund of the Fee or any fees in respect of Services shall be made.

6.5. Customer retains the right to continue to use Specifications that have been produced during the Contract Term after the termination of the Contract. 

7. Fees and Invoices

7.1. Customer shall pay the Fee as set out in the Digicon Order Form, to Digicon. Subject to the parties agreeing in writing to the contrary, Customer agrees to pay any invoice relating to the Contract within 30 days of the date of such invoice. 

7.2. Without prejudice to any other rights or remedies of Digicon, if any amount due to Digicon is outstanding for more than 30 days following the date of an invoice, Digicon may, at its sole discretion, suspend performance of Services which are in progress, refuse to release the Specification(s), or by written notice, deem the Contract be terminated by Digicon for Customer’s material breach of the Contract. 

7.3. If a Project is cancelled, then Customer shall inform Digicon in writing as soon as reasonably possible after Customer becomes aware of such cancellation. Digicon shall then raise an invoice to reflect the work completed up to and including the Cancellation Date. This shall be based on Working Days provided by Digicon and shall be calculated at Digicon’s sole but reasonable discretion. 

7.4. If Customer fails to pay any amount due under this Contract, then upon such payment becoming due and payable, in addition to any other rights and remedies available to Digicon, Digicon will be entitled to charge interest on all outstanding amounts at the greater of 1.5% per month or the maximum rate permitted by Applicable Law, such interest commencing as of the due date for such payment. For the avoidance of doubt, in addition to interest payments the Customer shall pay all reasonable costs and expenses incurred by Digicon in enforcing this Contract and recovering amounts owed to Digicon by the Customer. 

7.5. Digicon shall invoice the Customer for the Fee in accordance with the timelines set out in the Digicon Order Form.

7.6. The Fee excludes applicable taxes. Customer will pay all applicable goods and services tax, harmonized sales tax, provincial sales tax, service, use and excise taxes, and any other similar taxes, duties, and charges of any kind required by Applicable Law on the Fee and any other amounts payable by Customer to Digicon under this Contract. For greater certainty, Customer will have no responsibility for fees, taxes, or duties based on the net income or profits of Digicon.  

7.7. Customer acknowledges and agrees that it is its sole responsibility to finance the Fee on a basis which is commercially appropriate for its business. Where finance is provided by a third party, whether such third party is introduced by Digicon or otherwise, then Customer is solely responsible for discharging its obligations to such third party including where the Contract is terminated. In the event that the Customer chooses to cancel the services of such third party, the Customer is liable for the remaining value of the Fee.

8. Customer Materials

8.1. The Customer and its licensors shall retain ownership of the Customer Materials, including all Intellectual Property Rights therein,  and Customer is solely responsible for ensuring that the Customer Materials are accurate and complete.

8.2. Digicon shall not, in any circumstance, be liable for the legality, reliability, integrity, quality or accuracy of the Customer Materials.

8.3. Digicon accepts no responsibility for any liability arising from the use of the Customer Materials by third parties in the course of the Customer’s use of the Services.

9. Additional Services

9.1. If Customer requires a variation to the Services or for Digicon to conduct additional services (“Additional Services”) to those set out in the Digicon Order Form, Customer must request such Additional Services in writing. 

9.2. In response to such request, Digicon shall provide a price and timescale to Customer for the delivery of such services (“Additional Quote”) based on estimated Working Days. If Customer agrees to the Additional Quote, then Customer will confirm this in writing to Digicon, at which point Digicon shall provide the Additional Services, and these Terms and Conditions shall apply to such Additional Services.

10. Intellectual Property Rights

10.1. The Services and any materials, drawings, reports, Specifications, and other documents provided or created by Digicon in connection with the provision of the Services, including all Intellectual Property Rights in the foregoing, are, and shall remain at all times, the sole and exclusive property of Digicon or its licensors. All such rights are reserved by Digicon. Customer shall acquire no rights in the Services, or the materials created or used in the provision of the Services, except as expressly provided for in these Terms and Conditions.

10.2. Without prejudice to the generality of clause 10.1, the Digicon and NBS logos and all other Digicon and NBS trademarks, product names, and trade names logos appearing in, on or in connection with the Services are owned by Digicon or NBS, or its licensors, as appropriate. Customer may not use or display any such trademark, product name, trade name, or logo without Digicon’s or NBS’s, or the relevant owner’s prior written consent.

10.3. Customer hereby grants Digicon a non-exclusive, transferrable, royalty free licence (including a right to sub-licence) to access, use, copy, modify, reproduce, publish, adapt, translate, distribute, communicate and host the Customer Materials for the purposes of Digicon exercising its rights and performing its obligations under the Contract and to enable Customer to obtain the benefit of the Services during the Contract Term.

10.4. Digicon hereby grants Customer a limited, non-exclusive, non-transferrable licence to use any materials, drawings, reports, Specifications, and other documents provided or created by Digicon in connection with the provision of the Services, for the sole purpose of completing the Project.

10.5. Customer will indemnify, defend, and hold harmless Digicon, NBS and their directors, officers, employees, contractors and agents, successors, and assigns from and against all claims, loss, and damages to the extent arising, directly or indirectly, out of or in connection with any claims that the Customer Materials, or the Customer’s use or modification of the Services (including, for greater certainty, the Specifications), other than in accordance with and as expressly permitted under this Contract, infringes the Intellectual Property Rights of a third party. 

10.6. Digicon will indemnify, defend, and hold harmless Customer from and against all claims, loss, and damages to the extent arising, directly or indirectly, out of or in connection with any claims brought by a third party (“IPR Claim”) that a Specification infringes that third party’s Canadian Intellectual Property Rights (“Infringing Item”). 

10.7. If any third party makes an IPR Claim against Customer in relation to an Infringing Item and in respect of which Customer is entitled to indemnification hereunder, or in Digicon’s reasonable opinion, is likely to do so: (a) the Customer shall immediately cease using the Infringing Item; and (b) Digicon shall at its option, with minimal disruption to the Customer, promptly and at its own expense either: (i) procure for the Customer the right to continue using, possessing and receiving the Infringing Item in accordance with the Contract; or (ii) modify or replace the Infringing Item with a substitute item that is reasonably equivalent to the Infringing Item.  If neither (i) nor (ii) are commercially achievable, then Digicon will refund any advance payments made by the Customer for the use of the Infringing Item in the period following cessation of use.

10.8. If any third party makes an IPR Claim, or notifies an intention to make an IPR Claim against the Customer, the Customer shall:

10.8.1. promptly give written notice of the IPR Claim to Digicon, specifying the nature of the IPR Claim in reasonable detail;

10.8.2. not make any admission of liability, offer of settlement or compromise in relation to the IPR Claim without the prior written consent of Digicon;

10.8.3. give Digicon and its professional advisors copies of any relevant assets, accounts, documents and records within the possession or control of the Customer, so as to enable Digicon and its professional advisers to examine them for the purpose of assessing the IPR Claim; and

10.8.4. take such action as Digicon may reasonably request to compromise or defend the IPR Claim (at Digicon’s expense).

10.9. Digicon shall have no liabilities or obligations in relation to an IPR Claim to the extent that it relates to:

10.9.1. the use of Customer Materials in the Infringing Item;

10.9.2. any modification of the Specification(s), other than by or on behalf of Digicon, or any use of the Specification(s) for a purpose or in a context other than the purpose or in the context for which it was designed; 

10.9.3. compliance with the Customer’s instructions; 

10.9.4. Customer’s failure to use any new or corrected versions of the Specification(s) made available by Digicon; 

10.9.5. Customer’s failure to use the Specification(s) in accordance with this Agreement; and/or 

10.9.6. the use of the Specification(s) in combination with any software not provided by Digicon.

10.10. Clause 10.7 sets out Customer’s exclusive remedy, and Digicon’s sole obligation, with respect to an IPR Claim.  

11. Confidentiality and Data Protection

11.1. In this clause 11, the terms Personal Information shall have the meaning given in Data Protection Legislation.

11.2. Any information imparted by either party relating to the Services and use thereof, shall be kept confidential by the parties, and shall be used solely in connection with the normal use of the Services strictly in accordance with these Terms and Conditions. 

11.3. Customer shall be solely responsible for adjusting the Sharing Settings within NBS Chorus to indicate where certain information cannot be shared or disclosed by Digicon and NBS. Digicon and NBS shall have no liability where Customer fails to adjust such Sharing Settings.

11.4. Digicon shall, in providing the Services, comply with its privacy policy relating to the privacy and security of any Personal Information comprised in the Customer Materials available, at www.thenbs.com/legal or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by NBS in its sole discretion.

11.5. Both parties will comply with all applicable requirements under Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

11.6. If Digicon collects, uses, discloses, handles, and/or processes Personal Information on behalf of Customer pursuant to this Contract, then Digicon and Customer will comply with the terms of the NBS Data Processing Agreement, currently available at NBS Data Processing Agreement | NBS (thenbs.com), the terms of which are incorporated by reference into this Contract. 

11.7. Where Customer discloses the Personal Information of any third parties to Digicon, Customer represents and warrants that it has obtained the necessary consents, permits and authorizations from such third parties to disclose such Personal Information to Digicon and for Digicon to use such Personal Information for the purposes set out in the NBS Data Processing Agreement.

12. Warranties, Remedies and Limitation of Liability

12.1. Digicon warrants that:

12.1.1. it will provide the Services in accordance with Applicable Law; and

12.1.2. it has full power and authority to execute, deliver and perform its obligations under this Contract. 

12.2. EXCEPT AS EXPRESSLY STATED IN SECTION 12.1 AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ALL SERVICES ARE PROVIDED “AS IS” AND DIGICON MAKES, AND THERE ARE, NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS CONTRACT OR ANY DIGICON ORDER FORMS, REGARDING ANY MATTER, INCLUDING NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

12.3. The Customer warrants that:

12.3.1. it will comply with Applicable Law;

12.3.2. is the owner of, or otherwise has a right or licence to provide or make available the Customer Materials to Digicon;

12.3.3. Customer Materials does not and will not infringe, violate, or misappropriate the Intellectual Property Rights, confidential information, or other proprietary interests of any third party;

12.3.4. it has the necessary rights, permits, authorizations and powers to grant the rights, licences, consents, and approvals granted by Customer to Digicon pursuant to this Agreement, including to enable Digicon to use the Customer Materials to provide the Services and otherwise for the purposes of this Contract; and

12.3.5. it has the full power and authority to execute, deliver and perform its obligations under this Contract.

12.4. Digicon has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in these Terms and Conditions reflect the insurance cover Digicon has been able to arrange, and Customer is responsible for making its own arrangements for the insurance of any excess loss.

12.5. Except as expressly provided in this Contract, and to the fullest extent permitted by Applicable Law:

12.5.1. Customer shall be solely responsible, as against Digicon, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Customer, any Customer Client or any other third party based (wholly or in part) on the results obtained from the use of the Services, or the Specifications, by the Customer or any third party; and

12.5.2. Digicon shall have no liability for any damage caused by errors or omissions in any Customer Materials, information or instructions provided to Digicon by the Customer in connection with the Services, the Specifications or the Project.

12.6. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

12.6.1. a party’s gross negligence or criminal, fraudulent, or wilful misconduct; or

12.6.2. Customer’s payment obligations. 

12.7. Subject to clause 12.6, Digicon’s total liability to Customer shall not exceed the aggregate amount of the Fees paid to Digicon under the applicable Digicon Order Form in the immediately preceding period of twelve months. Digicon’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.

12.8. Subject to clause 12.6 the following types of loss are wholly excluded, even if a party has been advised of the possibility of such damages in advance:

12.8.1. loss of profits;

12.8.2. loss of production;

12.8.3. loss of sales or business;

12.8.4. loss of agreements or contracts;

12.8.5. loss of anticipated savings or wasted expenditure;

12.8.6. loss of use or corruption of software, data or information;

12.8.7. loss of or damage to reputation or goodwill; 

12.8.8. any loss or liability under or in relation to any other contract; and

12.8.9. indirect, consequential, incidental, exemplary, punitive, or special damages.

12.9. This clause 12 shall survive termination of the Contract.

13. Miscellaneous

13.1. These Terms and Conditions (together with the relevant Digicon Order Forms) constitute the entire agreement between the parties relating to the Contract and neither party has relied on any representation made by the other party unless such representation is expressly included in these Terms and Conditions or on the Digicon Order Form. These Terms and Conditions shall apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

13.2. In entering into this Contract neither party has relied on any pre-contractual statement, written or oral. The only remedy available to either party for breach of this Contract shall be for breach of Contract and it shall have no right of action against any other party in respect of any pre-contractual statement.

13.3. If any provision of these Terms and Conditions or any part of them shall be found by a court of competent jurisdiction to be invalid, illegal, or unenforceable for whatever reason, it shall be severed from this Contract and the remaining provisions shall continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either of the parties.

13.4. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between Customer and Digicon or the relationship between them of principal and agent or employers and employee.

13.5. Except as expressly provided in these Terms and Conditions, nothing shall confer or purport to confer on a third party any benefit or any right to enforce any provision of the Contract.

13.6. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case, whether voluntarily, involuntarily, by operation of law, or otherwise, without Digicon’s prior written consent, which Digicon may withhold for any reason whatsoever. No delegation or other transfer will relieve Customer of any of its obligations or performance of this Agreement. Any purported assignment, delegation or transfer by Customer in violation of this Section 13.6 is void. Notwithstanding the foregoing, Digicon may freely assign or otherwise transfer any or all of its rights, or delegate or otherwise transfer any or all of its obligations or performance, under this Contract without Customer’s consent.

13.7. Except as otherwise expressly permitted or specified herein, this Contract will not be amended or supplemented except by a Digicon Order Form or other mutual written agreement that: (a) is signed by the authorized signing officers of each of the parties; and (b) expressly states that it is intended to amend or supplement, as the case may be, this Contract.

13.8. The parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including all notices, be drawn up in the English language only.  Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.

14. Force Majeure

14.1. Neither party shall be liable for any Force Majeure Event.

14.2. Where a Force Majeure Event continues for more than two months, either party may terminate this Contract or part thereof on 14 days’ notice to the other party. For certainty, Customer will not be entitled to any repayment of Fees as a result of a Force Majeure Event.

15. Notices

15.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by personal delivery, email, or by registered mail at its registered company address or email address for legal notices as stated on the Digicon Order Form, or in the case of notices given to Digicon, to the relevant Project Leader. Any notice shall be deemed to have been received:

15.1.1. if sent by email, at the time of transmission or, if this falls outside of a Business Day in the place of receipt, on the next Business Day; and

15.1.2. if sent by registered mail, on signature of a delivery receipt by a representative of the other party.

16. Governing Law and Jurisdiction

These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and the parties agree to submit to the exclusive jurisdiction of the Courts of Alberta. 

Updated: 27th March 2024