This Master Subscription Agreement (“Agreement”) applies to the use of the Platform and will be binding on Customer and Sleep Performance Inc. dba Fatigue Science of 200 – 110 W Hastings Street, Vancouver, B.C., Canada, V6B 1G8 (“Fatigue Science”) upon the earlier of (the “Effective Date”): (i) the date of the last signature on the applicable Order Form or (ii) when Fatigue Science makes the Platform available for Customer’s use under the Order Form. By using the Platform, Customer automatically agrees to the Agreement.
IN CONSIDERATION OF the premises and mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 “Affiliate” means venture, organization, association, or other enterprise or entity in which Customer directly, or indirectly through one or more intermediaries, has an ownership interest (as a result of ownership of stock or other voting securities, contractual relationship, or otherwise) or any entity controlling under common control with any such entity.
1.2 “Authorized User” means an individual authorized by Customer to access and use the Platform on behalf of and for the benefit of Customer, and who has been supplied with a user identification and password.
1.3 “Customer” means the Fatigue Science customer that is referenced on the Order Form.
1.4 “Documentation” means the user and technical documentation for the Platform made available on or through the Fatigue Science website.
1.5 “Platform” means the Fatigue Science proprietary software platform specified in an Order Form.
1.6 “Order Form” means an order form issued by Fatigue Science and signed by both parties pursuant to which Customer purchases subscriptions to the Platform, and any related services.
1.7 “Subscription Term” means the term of Customer’s subscription to the Platform under an Order Form, as defined in Section 6.1.
2.1 Platform. Subject to the terms and conditions of this Agreement and the applicable Order Form, Fatigue Science grants Customer and its Authorized Users a non-exclusive, non-transferable right and license to access and use the Platform during the Subscription Term for Customer’s internal business purposes for the number of licenses set out in the Order Form. Fatigue Science will provide the software, applications, hardware and infrastructure necessary for Customer to access and use the Platform in accordance with the applicable Order Form and the Documentation. Customer is responsible for providing and maintaining its own computer & data systems, network connectivity, electric power, and the hardware and software infrastructure necessary to access the Platform through the Internet. Fatigue Science will not be liable for any failures arising from or relating to Customer’s systems and infrastructure.
2.2. Platform Service Levels. Fatigue Science will use commercially reasonable efforts to make the Platform available 24 hours per day, 7 days per week, except for: (a) scheduled downtime, which will occur no more than every other week and for no longer than two (2) hours at a time, unless Customer is otherwise notified; and (b) any unavailability caused by circumstances beyond Fatigue Science’s reasonable control, including, but not limited to, natural disaster (fire, flood, earthquake), civil unrest, an act of government, strike, Internet service provider failure or delay, or denial of service attack.
2.3 Technical Support. During the Subscription Term, Customer will have access to technical support via telephone, email and the Fatigue Science website to assist Customer with its use of the Platform. Telephone and email assistance will be provided during Fatigue Science’s regular business hours (Pacific time). Technical support does not include consulting services or any instruction for custom enhancements or add-ons which are not part of the standard Platform release.
2.4 Services. Fatigue Science will provide any training or other services set out in the applicable Order Form. Such services will be provided in a professional and workmanlike manner by personnel with sufficient skill, knowledge and experience to perform such services. Fatigue Science will adhere to Customer’s applicable safety and security guidelines, of which Fatigue Science has been informed, while performing any services on Customer’s premises. Customer’s sole remedy for any breach of this provision will be re-performance of the applicable services at no additional cost.
3. USE OF THE PLATFORM
3.1 Access and Use. Customer will permit only Authorized Users to access and use the Platform. Customer will keep all Authorized User ID’s and passwords confidential and will not share them with anyone outside its organization. Customer will not impersonate another user or provide false identity information to gain access to or use of the Platform.
3.2 Platform Use Guidelines. Customer will use the Platform solely as contemplated by this Agreement and will not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material violative of third party privacy rights; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or (f) attempt to gain unauthorized access to the Platform or related systems or networks. Fatigue Science reserves the right to suspend Customer’s use of the Platform or take other appropriate remedial action to address any violation or suspected violation of this Section 3.2.
3.3 Authorized Users. Customer is responsible for all activities that occur under its Authorized User accounts, and will use commercially reasonable efforts to ensure that Authorized Users, when accessing their accounts or the Platform, comply with all of the restrictions set forth herein. Customer is solely responsible for (a) compliance with laws in Customer’s use of the Platform, including those related to privacy and the transmission or use of personal data; and (b) any claims, issues or disputes arising out of any acts or omissions of its Authorized Users, or out of any individual’s participation or involvement in Customer’s use of the Platform.
3.4 Acknowledgement and Indemnity. Customer acknowledges and agrees that: (a) the Platform is a tracking and reporting tool only for use in connection with Customer’s overall fatigue management practices for its personnel; (b) the output from the Platform, and any of Fatigue Science’s observations, interpretations or recommendations about such output, may not be accurate for any given individual or situation; and (c) no technology, including the Platform, can accurately predict fatigue or fatigue induced errors in all cases or for all individuals. Customer is solely responsible for its collection, use, interpretation and application of the information derived from its use of the Platform. Customer will indemnify, defend and hold Fatigue Science harmless from any claims, causes of action, losses, liabilities or damages (including reasonable attorney’s fees) brought against or incurred by Fatigue Science arising out of or related to Customer’s collection, use, interpretation and application of information (including Personal Data) derived from or used in connection with the Platform. This indemnity will not apply to the extent any such claim is caused by Fatigue Science’s breach of this Agreement.
4. DATA PROTECTION
4.1 “Customer Data” means any proprietary data or materials provided by Customer to Fatigue Science in conjunction with Customer’s use of the Platform, including data collected from or regarding any individual and any personally identifiable information about an individual (“Personal Data”).
4.2 Protection of Customer Data. Fatigue Science will maintain commercially reasonable administrative, physical and technical safeguards (including, but not limited to, with respect to access controls, monitoring and logging, vulnerability and breach detection, incident response and encryption) to prevent the unauthorized access, use or disclosure of Customer Data stored in the Platform. Fatigue Science will not access Customer Data, except as required (a) to provision the Platform for Customer, (b) to prevent or address service or technical problems, (c) as otherwise expressly permitted by this Agreement, or (d) as expressly requested or authorized by Customer. Customer agrees that Fatigue Science may generate analyses and anonymized, aggregated or non-personally identifiable data (“Analyses and Aggregate Data”) derived from Customer Data and Customer’s and its Authorized Users’ use of the Platform. Fatigue Science may freely use, publish and otherwise disclose Analyses and Aggregate Data, including for research, development, Platform improvement, and providing benchmarking against norms or groups, statistics and analyses to users of the Platform and others; in all cases provided that any such Analyses and Aggregate Data do not reveal the identity of Customer or any of its personnel or Authorized Users or contain any Customer Data. Analyses and Aggregate Data will be the sole property of Fatigue Science. It is further clarified that Fatigue Science shall not make publication containing Customer Data without express permission in writing from the Customer, in any journals/slides/podcasts or blogs etc.
4.3 Security Incident. Fatigue Science will notify Customer if Fatigue Science determines that the security of the Platform has been breached and this results in Customer Data being accessed by or disclosed to an individual or entity who is not authorized to access or receive such information. Fatigue Science will report to Customer on the corrective action being taken in response to such security breach and will reasonably cooperate with Customer in mitigating the effects of any lost or compromised Customer Data.
4.4 Customer Obligations. Customer will use commercially reasonable security precautions in connection with its use of the Platform and its collection, use and submission of Customer Data to the Platform. Customer will not upload, use or process Customer Data in the Platform unless Customer owns and/or has lawfully obtained such Customer Data and complies with all laws applicable to such Customer Data. Customer will notify Fatigue Science immediately if it becomes aware of any unauthorized use of its account or of any user ID and password, or if Customer becomes aware of any other known or suspected breach of security.
5.1 Fees. Customer will pay Fatigue Science the fees set forth in each Order Form. Interest at a rate of 1.5% per month (18% per annum), or at an interest rate equal to the maximum rate permitted by applicable law, whichever is less, may be charged on all overdue amounts. Except as expressly set forth in this Agreement, all fees are non-refundable and non-cancellable.
5.2 Taxes. Fatigue Science’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Fatigue Science has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Fatigue Science will invoice Customer and Customer will pay that amount unless Customer provides Fatigue Science with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Fatigue Science is solely responsible for taxes assessable against it based on its income, property and employees. Fatigue Science will ship hardware devices FCA (INCOTERMS 2010), Fatigue Science facilities. If withholding tax is required to be deducted from payment, fees will be grossed-up by the amount of such withholding tax.
6. TERM; TERMINATION
6.1 Subscription Term. This Agreement will commence upon the Effective Date and will continue for the subscription term(s) set forth in the applicable Order Form (“Subscription Term”), unless terminated earlier in accordance with the termination provisions below. Upon expiration of the Subscription Term, the parties will either enter into a new Order Form effective as of the expiration date of the expiring Order Form or the applicable Order Form or Customer’s subscription to the Platform will renew automatically for additional one (1) year periods (each, also a “Subscription Term”), unless either party gives the other party written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Subscription Term.
6.2 Termination for Breach; Insolvency. This Agreement and all Order Form(s) may be terminated immediately by either party if the other party: (a) is in material breach of this Agreement and such breach has not been remedied within thirty (30) days after receipt of notice of the breach from the non-breaching party; (b) becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law or statute in force for the winding up or liquidation of corporations; or (c) breaches the confidentiality provisions contained in this Agreement. Upon termination by Fatigue Science pursuant to this Section 6.2, Customer will forthwith pay to Fatigue Science all unpaid fees for the remainder of the then-current Subscription Term.
6.3 Suspension and Termination. Notwithstanding anything to the contrary herein, Fatigue Science may, upon fifteen (15) days advance written notice to Customer, suspend or terminate Customer’s subscription to the Platform, in its sole discretion, if Customer is in default of its payment obligations hereunder. A suspension under this Section 6.3 will not constitute a termination of the Agreement nor will it relieve Customer of any of Customer’s obligations or liabilities under the Agreement.
6.4 Data Retention Policy. Customer is responsible for removing its Customer Data from the Platform prior to expiration or termination of its subscription. Customer Data which is not removed may be retained in the Platform for up to three (3) years after expiration or termination. Upon written request, Fatigue Science will delete Customer Data from the Platform within thirty (30) days of such request and will confirm such deletion to Customer; provided however that Customer Data may reside in Fatigue Science backups for up to sixty (60) days after deletion before being fully purged.
6.5 Survival. The provisions of Sections 3.4, 4.2 (dealing with Analyses and Aggregate Data), 6, 7, 8, 9.3, 10, 11 and 14 will survive any termination or expiration of this Agreement.
7.1. Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written or machine-readable form, which is proprietary in nature and is not readily available to the public. Confidential Information includes, without limitation, the Platform and all information regarding performance of the Platform (including availability, uptime and performance benchmarks), all Customer Data and any financial information, product plans, product roadmaps, business methods, trade secrets or other non-public information regarding the Disclosing Party’s business, customers, employees or personnel.
7.2 Non Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (i) has entered the public domain through no action or failure to act of the Receiving Party; (ii) prior to disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (iii) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; provided however, that Personal Data will always be deemed and considered Confidential Information.
7.3 Obligation of Non-Disclosure. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties (except for its subcontractors or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision), and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party.
7.4 Compelled Disclosure. If the Receiving Party is compelled by law, regulation or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this Section.
8. PROPRIETARY RIGHTS
8.1 Ownership. As between Customer and Fatigue Science, Fatigue Science owns all right, title, and interest in and to the Platform (including Documentation and the hardware and software used to provide the Platform), and all intellectual property rights related thereto. Except for the limited rights expressly granted to Customer in this Agreement, Fatigue Science reserves all right, title and interest in and to the Platform and all related intellectual property rights.
8.2 Customer Data. As between Customer and Fatigue Science, Customer owns all right, title, and interest in and to the Customer Data, and all intellectual property or other rights related thereto. Customer hereby grants Fatigue Science a non-exclusive, limited license (with the right to sublicense to its subcontractors and licensees, as applicable) to use Customer Data solely in accordance with the terms of this Agreement.
8.3 Feedback. To the extent Customer provides any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Platform (“Feedback”), Customer hereby grants Fatigue Science a non-exclusive, royalty free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Feedback, including by incorporating it into future versions of the Platform.
9. PLATFORM WARRANTY
9.1 Performance Warranty. Fatigue Science warrants that the Platform, when used in accordance with this Agreement, will perform substantially in accordance with the functions described in the then current Documentation for the Platform. If the Platform fails to operate as warranted in this Section 9.1 and Customer notifies Fatigue Science in writing of the nature of the non-conformance (“Notice”), Fatigue Science will make commercially reasonable efforts to promptly repair the non-conforming Platform without charge. If, after a reasonable opportunity to cure, Fatigue Science does not remedy the non-conformance, Customer may, no later than sixty (60) days after giving the Notice, terminate the Agreement and receive a refund of the prepaid Platform fees for the period following the date of Notice. The foregoing provides Customer’s sole and exclusive remedy for breach of the warranty in this Section 9.1.
9.2 Device Warranty. Fatigue Science warrants that each hardware device provided to Customer by Fatigue Science for use in connection with the Platform will be free of defects in materials and workmanship for a period of one (1) year from the date the device is delivered to Customer, provided the device is used in accordance with the Documentation and this Agreement. This warranty excludes damage resulting from accidents, modification, improper care, unauthorized repairs, normal wear or other causes which are not defects in materials or workmanship. In the event a hardware device fails to meet this warranty, Fatigue Science will, at its option and expense, either repair or replace the device free of charge. Replacement of lost or stolen devices are not covered by this warranty and may be subject to a replacement fee. This warranty does not apply to any third party hardware provided to or used by Customer in connection with the Platform, or to any consumable parts such as batteries.
9.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, FATIGUE SCIENCE MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, OR ENDORSEMENTS, OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, ANY RELATED SOFTWARE, HARDWARE OR SERVICES, OR THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT (BUT NOT IN DEROGATION OF FATIGUE SCIENCE’S OBLIGATIONS UNDER SECTION 10 BELOW), MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges and agrees that neither Fatigue Science nor its suppliers operates or controls the Internet and that: (i) viruses, worms, Trojan horses, or other undesirable data or software exist; and (ii) unauthorized users (e.g., hackers) may attempt to obtain access to Customer’s data, account or networks. Fatigue Science uses reasonable efforts consistent with industry standards, and as set out in this Agreement, to protect the Platform from such unauthorized use, but Fatigue Science is not responsible for issues related to acts or omissions of third parties (excluding any subcontractors, employees or any agents working on Fatigue Science’s behalf).
10. INTELLECTUAL PROPERTY INDEMNITY
10.1 Indemnity. Fatigue Science will defend any claim or action brought against Customer by a third party to the extent it is based upon a claim that the Platform, as provided by Fatigue Science to Customer under this Agreement and used within the scope of this Agreement, infringes any third party copyright, trade secret, trademark or U.S. patent, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against Customer or agreed upon by Fatigue Science in settlement. The above defense and indemnity obligations do not apply to the extent the claim arises from Customer’s breach of this Agreement.
10.2 Indemnity Conditions. Fatigue Science’s obligations under Section 10.1 are subject to Customer complying with the following conditions: (a) Customer will notify Fatigue Science promptly (within at least thirty (30) days) after being made aware of the claim or action; (b) Customer will provide Fatigue Science with sufficient information to show the extent to which the Platform is the cause of the infringement; (c) Customer will provide reasonable assistance and information to Fatigue Science, at Fatigue Science’s expense, for the defense of the claim; and (d) Customer will allow Fatigue Science to control the defense of the claim. Customer may, at its own cost, engage counsel of its choice.
10.3 Injunction. If Customer’s use of the Platform hereunder is, or in Fatigue Science’s opinion is likely to be, enjoined due to the type of infringement specified in Section 10.1 above, or if a claim is brought against Customer due to the type of infringement specified in Section 10.1 above, then Fatigue Science may, at its sole option and expense: (a) procure for Customer the right to continue using the Platform under the terms of this Agreement; (b) modify the Platform so that it is non-infringing and substantially equivalent or better in function to the enjoined Platform; or (c) if options (a) and (b) above cannot be accomplished despite Fatigue Science’s commercially reasonable efforts, then Fatigue Science may terminate Customer’s subscription to the Platform and remit to Customer any pre-paid Platform fees for the remainder of the then-current Subscription Term.
10.4 Sole Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 10 SET FORTH FATIGUE SCIENCE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
11. LIMITATION OF LIABILITY
11.1 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF SECTION 7 (CONFIDENTIALITY): (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER OR TO ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THE PLATFORM OR THIS AGREEMENT, OR DAMAGES FOR LOST PROFITS OR LOST SAVINGS, EVEN IF SUCH LOSS OR DAMAGES IS CAUSED BY EITHER PARTY’S NEGLIGENCE AND EVEN IF EITHER PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE; AND (B) EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF PLATFORM FEES PAID TO FATIGUE SCIENCE BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION CANNOT BE USED BY CUSTOMER TO LIMIT A MULTI-YEAR LICENSE TERM COMMITMENT. The limitations and exclusions in this Section 11 will not apply to any liability which cannot be limited or excluded under applicable law, including, but not limited to, the tort of deceit, or death or personal injury caused by a party’s negligence.
12.1 Coverage. Fatigue Science will, at its own expense and without limiting its obligations for liability under this Agreement, obtain and maintain the following insurance coverage in full force and effect during THE Subscription Term: (a) commercial general liability insurance with limits no less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) as an annual aggregate against liability for bodily injury and property damage; (b) employer’s liability insurance with limits no less than two million dollars ($2,000,000); (c) professional liability insurance with limits no less than two million dollars ($2,000,000) per claim and two million dollars ($2,000,000) as an annual aggregate; (d) non-owned automobile liability insurance with limits no less than one million dollars ($1,000,000); (e) cyber and privacy liability insurance with limits no less than two million dollars ($2,000,000); and (f) workers compensation insurance as required by applicable law.
12.2 Evidence. Fatigue Science will have the above insurance in full force and effect as of the Effective Date and, if requested by Customer, will provide Customer with a certificate or memorandum of insurance confirming the insurance coverage.
13.1 Publicity. Fatigue Science may identify Customer in Fatigue Science customer lists and on the Fatigue Science website using Customer’s name and logo. Fatigue Science will obtain Customer’s prior written consent for any other use of Customer’s name and logo. Neither party will take any action or publish any information, act or thing that may be detrimental to the business reputation of the other party.
13.2 Referral. Fatigue Science may from time to time refer potential new customers to Customer as a reference for the Platform and Fatigue Science, and Customer agrees to respond reasonably to all such reference contacts.
14.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable in that Province without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this Agreement or to the transactions contemplated by this Agreement. Subject to Section 14.2, the parties agree to submit to the exclusive jurisdiction of the courts of Vancouver, British Columbia, Canada and waive all objections as to the venue thereof.
14.2 Disputes. Subject to and without restricting the rights of a party to injunctive relief and any other interim measures of relief, the parties will attempt to settle any claim or controversy relating to this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. By mutual agreement, the parties may agree to use some form of non-binding alternative dispute resolution, such as mediation, neutral fact-finding or a mini-trial. The use of any alternative dispute resolution procedure will not be construed as a waiver or estoppel to affect adversely the rights of either party. Any dispute which the parties cannot resolve between themselves within one (1) month after the claim or controversy first arose will be referred to, finally settled and determined by the courts of Vancouver, British Columbia, Canada.
14.3 Complete Agreement. This Agreement, together with each Order Form, is the complete and exclusive statement of the agreement between the parties with respect to the subject matter contained herein and supersedes and merges all prior representations, proposals, understandings and all other agreements, oral or written, express or implied, between the parties relating to the matters contained herein. This Agreement may not be modified or altered except by written instrument duly executed by both parties. The terms of any Customer purchase order or any other Customer ordering document will not be binding on Fatigue Science and will not be construed to modify this Agreement.
14.4 Injunctive Relief. The parties acknowledge and agree that, notwithstanding any other provisions of this Agreement, a breach of the provisions of this Agreement by one party may cause the other party to suffer irreparable damage for which recovery of money damages would be an inadequate remedy, and that the non-breaching party may, therefore, be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law.
14.5 Force Majeure. Except for payment obligations, neither party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labour conditions, earthquakes, acts of terrorism or war, Internet or telecommunications failure or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party.
14.6 Notices. Any notice that either party is required or permitted to give to the other party under this Agreement will be in writing and be delivered to the address shown below. Either party may, from time to time, change their address for notice by providing written notice of the change to the other party. The delivery of notice will be by personal delivery, courier or mail. Delivery of notice will be deemed effective upon receipt.
Sleep Performance Inc.
dba Fatigue Science
200 – 110W Hastings Street
Vancouver, British Columbia
Canada, V6B 1G8
Attention: Legal Department
Notices to Customer will be delivered to the address set out on the applicable Order Form,
14.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8 Waiver and Severability. The waiver of, or failure of a party to exercise, any right provided for in this Agreement will not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable statute or rule of law, such provision will be limited or severed the minimum extent necessary so that the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired.
14.9 No Agency. The parties acknowledge that each is an independent contractor and nothing herein constitutes a joint venture or partnership and neither party has the right to bind or act for the other as agent or in any other capacity.
14.10 Execution. Each Order Form may be executed in as many counterparts as may be necessary or by facsimile or by other electronic means producing a printed copy, each of which when so executed will be deemed to be an original, and such counterparts, facsimiles or other electronic copies will together constitute one and the same agreement.
14.11 No Third Party Beneficiaries. Unless otherwise expressly stated in this Agreement, no person, other than a party to this Agreement will be entitled to enforce any term of this Agreement.