Standard terms - Service agreement
Last modified 08.25.21
1. Scope of services and compliance
Lexop Solutions Inc. (the “Vendor”) will perform, in accordance with the provisions set out in this Agreement, the services described in this Agreement, including, as applicable, the proof of concept services (collectively, the “Services”).
To the extent applicable to Vendor’s performance of its obligations hereunder, Vendor will comply with all applicable policies, processes, procedures, and standards of its client (the “Client”) provided by the Client to Vendor from time to time (collectively, the “Client Policies”). To the extent any requirements of Client Policies are inconsistent with the terms of this Agreement, the terms of this Agreement will apply.
2. Data security
Without limiting Vendor’s obligations under the NDA, Vendor has implemented and will continually maintain appropriate electronic, physical and organizational security procedures, measures, and controls in order to protect against accidental, unauthorized, or unlawful access, destruction, use, alteration, modification, disclosure or loss of data. Such procedures, measures, and controls shall meet SOC 2 compliance.
3. Term and termination
This Agreement will commence as of the Implementation Start Date and will continue in full force and effect until the end of the term, the whole as described in the Service Agreement - Letter (the ''Term"), unless superseded or otherwise terminated in accordance with the terms of this Section.
Vendor may terminate this Agreement if Client breaches a material obligation under this Agreement and fails to cure such breach within thirty (30) days following the date Client has received Vendor’s notice of the breach and demand for cure.
Client may, by providing written notice of termination to Vendor, terminate, in whole or in part,
3.1 with cause if Vendor
(a) breaches a material obligation, including failure to provide Services in a timely manner satisfactory to Client or failure to deliver deliverables in a manner satisfactory to Client and fails to cure such breach within thirty (30) days,
(b) violates Applicable Law; or
3.2 without cause, upon 90 days prior written notice
The aforementioned 90-day notice runs even if the Client is within the implementation phase. Accordingly, if Client terminates this agreement without cause, the Client shall pay Vendor 90 days of subscription.
If Client terminates in response to Vendor’s breach of a material obligation or a violation of Applicable Law, then Client is relieved from any obligation to pay Vendor for Services Client is unable to utilize completely and effectively as a result of Vendor’s breach or violation.
4. Relation of parties
This Agreement does not constitute an exclusive agreement between Vendor and Client. The Client may purchase the same or similar services from suppliers other than Vendor.
5. Proprietary rights
To the fullest extent permitted under law, all Work Product and all Intellectual Property Rights (both defined hereunder) therein will be the property of Client and all copyrightable works created or contributed to by Vendor that have been specially ordered or commissioned hereunder will also be the property of Client.
6. Service fees, expenses, and payment terms
The fees to be paid by Client for Services delivered by Vendor under this Agreement are set forth in the Service Agreement - Letter. For additional clarity, it is understood that Client shall pay the implementation cost upon signature. Subsequently, Client shall pay the subscription cost, upfront, monthly, as of the Subscription Start Date. In other words, notwithstanding the completion of the implementation, the Client shall start paying the subscription 60 days after the Implementation Start Date. If during the implementation there are delays caused by Lexop, the Client will benefit from an extension equal to the delay.
Vendor may invoice Client for sales and use taxes properly levied against or upon:
(a) the furnishing of Services to Client by Vendor pursuant to this Agreement; or
(b) Client's use of those Services.
However, Client will not be obligated to pay any penalties, interest, or late charges imposed as a result of Vendor's failure to remit such taxes to the taxing authority on a timely basis. Vendor will be solely responsible for the payment of all other taxes, including personal property taxes, franchise taxes, corporate excise or corporate privilege, property or license taxes, and all taxes based on the net income or gross revenues of Vendor.
6.2 Reimbursable expenses
To the extent applicable, Vendor will only be reimbursed for expenses that have been approved in advance by Client in writing.
6.3 Terms of Payment
No amount arising under this Agreement will be due from Client to Vendor prior to Client's receipt of a fully executed Agreement and Client's receipt of an invoice:
(a) referencing this Agreement;
(b) separately itemizing the fees for the Services and other items covered therein;
(c) including, in the case of any reimbursable expenses or other charges (including taxes), receipts, or other documentation acceptable to Client.
All invoices will be submitted to Client in accordance with Client's instructions. Client payments will be made to Vendor within thirty (30) days of receipt of such invoices by Client for all items not in dispute.
6.4 Disputed Invoices
Client will not be required to pay any amount which Client, in good faith, has disputed by giving Vendor written notice thereof and setting out sufficient facts to substantiate the basis of its dispute. Pending settlement or resolution of the dispute, Client's non-payment of such disputed amount will not constitute a default in payment by Client and will not entitle Vendor to suspend or delay performing or furnishing the Services to Client.
7. Representations, warranties, and covenants
Vendor represents and warrants to and covenants with Cient that: (1) it has full power, authority, and right to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery, and performance of this Agreement has been duly authorized by all necessary corporate action; (2) it will comply with all applicable laws in the performance of the POC Services; (3) it will refrain from engaging in any unfair or deceptive trade practice, or unethical business practice whatsoever; and (4) it will ensure that no Vendor Personnel has given or will give any commissions, payments, kickbacks, lavish or extensive entertainment, or other inducements of more than minimal value to any Bank employee, agent, or independent contract personnel of any Bank group member, in connection with this Agreement.
8.1 Confidential Information
In this Agreement, "Confidential Information" means and refers to all tangible or intangible information and materials, in any form or medium (and without regard to whether the information or materials are owned by a party or by a third party), whether furnished or disclosed to a party by another party or otherwise obtained, which from its nature is reasonably understood to be confidential or proprietary.
8.2 Duty of Care and Use Restriction
A party receiving Confidential Information ("Receiving Party") of the other party ("Disclosing Party") will exercise at least the same degree of care with respect to the Disclosing Party's Confidential Information that the Receiving Party exercises to protect its own Confidential Information; and, at a minimum, the Receiving Party will adopt, maintain and follow security practices and procedures that are sufficient to safeguard the Disclosing Party's Confidential Information from any:
(a) unauthorized disclosure, access, use, modification;
(b) misappropriation, theft, destruction, or loss; or
(c) inability to account for such Confidential Information.
Without limiting the generality of the foregoing, the Receiving Party will only use or reproduce the Disclosing Party's Confidential Information to the extent necessary to enable the Receiving Party to fulfill its obligations under this Agreement, or in the case of Client, to exercise its rights or remedies related to this Agreement. In addition, the Receiving Party will disclose the Disclosing Party's Confidential Information only to those of the Receiving Party's personnel who have a "need to know" such Confidential Information (and only to the extent necessary) in order to fulfill the purposes contemplated by the Agreement. Vendor will ensure that each of its personnel permitted access to any portion of the Confidential Information will abide by the terms of the confidentiality obligations set forth herein and Vendor will be liable to Client for any breach of such obligations. Without limiting the foregoing, Vendor will require its personnel to agree in writing to abide by the terms of the confidentiality obligations set forth herein.
If the Receiving Party becomes aware of any threatened or actual violation of the obligations or restrictions agreed to by Receiving Party with respect to the Disclosing Party's Confidential Information or any threatened or actual disclosure of the Disclosing Party's Confidential Information, the Receiving Party will:
(a) immediately notify the Disclosing Party;
(b) to the extent possible, curtail an actual or threatened violation thereof; and
(c) investigate the incident, and, to the extent possible, cure and remedy such violation and assist the Disclosing Party with any of its efforts to do the same. The Receiving Party will be liable to the Disclosing Party for any non-compliance by its personnel.
8.4 Removal or transmission of confidential information
Vendor will not remove or transmit Client's Confidential Information from the premises of Client without, in each case, obtaining the express prior written consent of Client.
Vendor will not remove any copyright or other proprietary notice of confidentiality contained on or included in Client's Confidential Information; and Vendor will reproduce any such notice on any reproduction, modification or translation of Client's Confidential Information.
The obligations of confidentiality set forth in this Section 8 will not apply to the extent the Receiving Party can demonstrate that such information:
8.6.1 is or has become generally known to the public, without any breach by the Receiving Party of the provisions of this Agreement or any other applicable agreement between the Disclosing Party and the Receiving Party;
8.6.2 was rightfully in the possession of the Receiving Party, without confidentiality restrictions or breach of an obligation of confidentiality, prior to such party's receipt pursuant to this Agreement;
8.6.3 was rightfully acquired by the Receiving Party from a third party who was entitled to disclose such information, without confidentiality or proprietary restrictions;
8.6.4 was independently developed by the Receiving Party without using or referring to the Disclosing Party's Confidential Information; or
8.6.5 is subject to a written agreement pursuant to which the Disclosing Party authorized the Receiving Party to disclose the subject information.
8.7 Legally Required Disclosures
The obligations of confidentiality assumed under this Agreement will not apply to the extent that the Receiving Party is required to disclose the Disclosing Party's Confidential Information under any applicable law, regulation or an order from a court, regulatory agency or other governmental authority having competent jurisdiction. Notwithstanding the foregoing, in the event the Vendor is served with a request from one of the aforementioned authorities, Vendor shall:
8.7.1 where legally permitted, promptly notify the Disclosing Party of the order in order to provide the Disclosing Party an opportunity to seek a protective order;
8.7.2 provide the Disclosing Party with reasonable cooperation in its efforts to resist the disclosure, upon reasonable request by the Disclosing Party and at the Disclosing Party's expense; and
8.7.3 disclose only the portion of the Disclosing Party's Confidential Information that is required to comply with such law, regulation or order.
8.8 Accounting for confidential information
Except as otherwise expressly provided in this Agreement, upon the request of the Disclosing Party, the Receiving Party will return (or purge its systems and files of, and suitably account for) all Confidential Information supplied to, or otherwise obtained by, the Receiving Party, subject to legislative data retention obligations. The Receiving Party will certify in writing that it has fully complied with its obligations under this Section 8.8 within seven (7) days after its receipt of a request from the Disclosing Party for such a certification.
Vendor will not disclose the identity of Client as a Client of Vendor or the existence, nature or terms of this Agreement, without the prior written consent of Client, which Client may withhold in its sole discretion. Vendor will not use Client's trademarks, service marks, trade names, logos, symbols or brand names, or otherwise refer to or identify Client in advertising, publicity releases, or promotional or marketing publications or correspondence to third parties without, in each case, securing the prior written consent of Client.
Vendor will indemnify, defend, and hold harmless Client from and against any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs, and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants, and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment), suffered or incurred by any of them arising from or in connection with or relating to the following: (i) any violation of or non-compliance with any applicable law by Vendor; (ii) any amounts assessed or reassessed against, or imposed on Client that are the obligation of Vendor, including any such amounts in respect of any taxes and any such amounts that may arise or be imposed on Client as a consequence of a breach by Vendor of any provision of this Agreement.
11.1 Required Coverage
While this Agreement is in effect, Vendor will obtain and maintain the following minimum insurance coverage throughout the term of this Agreement:
11.1.1 Commercial general liability insurance in the minimum amount of Five Million Dollars ($5,000,000.00) per occurrence and no less than Two Million Dollars ($2,000,000) annual aggregate, including broad form contractual liability, personal injury coverage and advertiser's liability coverage providing coverage for bodily injury, death and property damage;
11.1.2 Employer's liability coverage of at least Two Million Dollars ($2,000,000.00) per occurrence;
11.1.3 Fidelity/Crime coverage of at least Two Million Dollars ($2,000,000.00) per occurrence providing coverage protecting any loss sustained by Client as a result of dishonesty by Vendor theft, robbery, forgery, and altered documents, such fidelity/crime insurance coverage to cover:
(a) property of Vendor,
(b) property of others which Vendor holds in its care, custody or control, and
(c) property of others for which Vendor is legally liable, and
11.1.4 Professional liability insurance (errors and omissions) coverage in the minimum amount of Two Million Dollars ($2,000,000.00) per occurrence covering losses from any act, errors, omissions, negligence, breach of duty, and/or misrepresentations related to Vendor's obligations under this Agreement.
12. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY, INCLUDING AN AFFILIATE OF SUCH PARTY) FOR LOST PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT WILL NOT APPLY TO DAMAGES THAT ARISE AS A RESULT OF OR IN CONNECTION WITH: (A) THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF A PARTY OR ITS PERSONNEL; (B) PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE CAUSED BY A PARTY OR ITS PERSONNEL; (C) CLAIMS FOR WHICH VENDOR HAS AGREED TO INDEMNIFY CLIENT PURSUANT TO THE PROVISIONS OF THIS AGREEMENT.
Vendor and Client may upon written notice, assign this Agreement or any of its rights or interests hereunder, or delegate any of its obligations hereunder, to:
13.1 an Affiliate;
13.2 a successor pursuant to a merger, amalgamation, reorganization, consolidation, or sale; or
13.3 an entity that acquires all or substantially all of that portion of assets or business for which the Services were acquired or are being used.
Except as otherwise provided above, neither party may assign this Agreement or any of its rights or interests hereunder, nor delegate any obligation to be performed hereunder, without the prior written consent of the other Party. Any attempted assignment or delegation in contravention of this Section 13 will be null and void. This Agreement will be binding upon and will inure to the benefit of, the legal successors and permitted assigns of the parties.
Any notice, demand, or other communication (collectively "notice") required or permitted under this Agreement will be made in writing and will be deemed to have been duly given:
(a) when delivered personally;
(b) when mailed by certified mail (return receipt requested)
(c) when sent by overnight courier; or
(d) when sent by email.
The parties may change their address(es) or representative(s) for receiving notices upon notice to the other.
15. Choice of Law and Dispute Resolution
15.1 Governing Law
This Agreement and the respective rights and obligations of the Parties will be governed by the laws of the Province of Quebec and the laws of Canada in force therein.
15.2 Dispute Resolution
Any and all disputes, claims, or controversies (hereinafter called the "Issue") arising out of or in any way connected with this Agreement, or the negotiation, performance, breach, existence, termination or validity hereof or thereof, will be resolved by the use of the following procedure:
(a) The Parties will attempt to resolve the Issue through negotiations between senior representatives of the Parties who have authority to negotiate and settle the dispute.
(b) If the matter is not resolved by negotiation within ten (10) days of a Party’s receipt of a written notice of the dispute from the aggrieved Party, then the senior representatives of each Party will escalate the matter to their respective management who will attempt to fully and finally resolve the dispute.
(c) If management cannot resolve the dispute or agree upon a written plan of corrective action to do so within ten (10) days after their initial meeting, then either Party may request that the matter be submitted for resolution to the executive management of each Party.
Nothing in this Section is to be construed as a waiver of either Party’s exercise or partial exercise of any right or remedy under this Agreement.
16.1 Modification. The terms, conditions, covenants, and other provisions of this Agreement may hereafter be modified, amended, supplemented, or otherwise changed only by a written instrument (excluding e-mail or similar electronic transmissions) that specifically purports to do so and is physically executed by a duly authorized representative of each Party.
16.2 Severability. If a court of competent jurisdiction declares any provision of this Agreement to be invalid, unlawful, or unenforceable as drafted, the Parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. If such provision cannot be so amended and construed, it will be severed, and the remaining provisions will remain unimpaired and in full force and effect to the fullest extent permitted by law.
16.3 Survival. The provisions of this Agreement that, by their nature and content are intended to survive the completion, rescission, termination, or expiration of this Agreement, will so survive and continue to bind the Parties.
16.4 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, and all of which together will constitute one instrument.
17. Support & SLA
17.1 Service availability
17.1.1 The service shall be available 24 hours per day 365 days per year;
17.1.2 The service shall be available no less than 99.9% of the time per month, excluding the maintenance periods;
17.1.3 The maintenance periods as specified in the Maintenance section below should limit the downtime to no more than 40 hours per calendar year;
17.1.4 The service shall be fully operational within 4 hours after any unscheduled downtime;
17.1.5 Vendor shall use redundancy in the IT infrastructure to minimize the risk of downtime.
Vendor shall provide Client with a minimum 48-hours advance notice when ordinary system maintenance and/or downtime is scheduled to take place. The notice shall contain the time and duration of the intervention, and detail the risk and impact on the product (availability or addition/removal of functionalities).
17.3 Support and Contact
24 hours a day, 7 days a week, 365 days a year.
17.3.2 Target Response Times
Severity 1 incidents within 1 hour. (The problem results in serious interruptions to normal operations and could negatively impact urgent deadlines.)
Severity 2 incidents within 4 hours. (The problem causes interruptions in normal operations during their business hours.)
All other incidents by the next business day.
Issues can be downgraded at Vendor’s discretion, acting reasonably.
17.4 Backup and recovery
Vendor considers as best practices to have in place two different schemes for backing up data at minimum in two separate locations. As such:
Vendor shall maintain service and data replication in distinct geographical locations as well as timely (15 minutes) backups;
The infrastructure put in place by Vendor shall ensure recovery of both service and data, towards full operation within 24 hours.
17.5 Disaster Recovery
Vendor shall ensure measures are in place to recover in the event of a disaster, including geographical infrastructure redundancy, full service data replication, and incremental backups (15 min).
The site shall be fully operational and able to support full load (based on historical peak usage) within 24hrs.
It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.
"Agreement" means this Services Agreement, together with, as applicable, any work order agreed to between the parties.
"Intellectual Property Rights" means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
"Party" means Vendor or Client, individually, as the context so requires; and "Parties" means Vendor and Client, collectively.
"Work Product" means and includes all copyrightable works, ideas, concepts, know-how, techniques, inventions, discoveries, improvements, specifications, designs, methods, devices, systems, reports, studies, computer software (in object or source code), programming and other documentation, flow charts, diagrams and all other information or tangible material of any nature whatsoever (in any medium and in any stage of development or completion) relating to the subject matter of this Agreement or the applicable Work order, that are conceived, designed, practiced, prepared, produced or developed, in whole or in part by Vendor, (i) during the course of providing the Services, or (ii) based upon knowledge or information learned or gained from Client, or (iii) resulting from the use of Client's facilities, personnel or materials. It is understood however that “Work Product” excludes any or all rights related to Vendor’s proprietary software and any improvements thereof (even if said improvements are resulting from Client’s suggestions).
20. Description of services
Vendor’s core application is a Collections Platform (CP) that enables medium and large enterprises to send payment requests to their overdue accounts, as well as to track the progress and performance of their campaigns. The service supports the current tasks:
Importing overdue account information;
Sending out payments requests and providing a payment portal to resolve all balances;
Managing payment campaigns;
Processing payments and payment agreements made by the overdue account owners;
Producing reports to reconcile all account information between Vendor and the customer’s systems;
Providing analytics to track and assess organization performance, to various degrees of granularity;
The CP system tracks all overdue accounts and incoming payment information, which it stores in its database in real-time. It also registers and persists subsequent payment-related events (e.g. message delivered, message opened, portal accessed, payment made). This data can be retrieved for the purpose of analytics and reporting. It can also serve to produce payment history for specific customers in the event of dispute. Said data can be fetched a number of different ways (e.g. by client number, email, full name and date of occurrence).
The CP provides a web and an API interface. The web portal is used by Vendor users to create and manage payment activities, as well as by debtors to execute and review transactions. The API interface serves 3rd-parties looking to integrate with Vendor to supplement their own offering.