OVERSUSHI STANDARD TERMS AND CONDITIONS

THIS AGREEMENT GOVERNS CLIENT’S PURCHASE AND RECEIPT OF OVERSUSHI INC. (“COMPANY”) SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING A STATEMENT OF WORK (“SOW”) THAT REFERENCES THIS AGREEMENT, THE PARTY ACCEPTING THIS AGREEMENT (“CLIENT”) AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE SERVICES.

For good and valuable consideration, Company and the Client agree as follows:

Definitions

The following terms shall have the following meanings. All capitalized terms not otherwise set out in this section shall have the meaning as set out in the section of this Agreement in which they are defined.

“Affiliate” means, with respect to any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.
“Business Day” means any day except Saturdays, Sundays or statutory holidays.
“Fees” means the fees payable by the Client to Company and all applicable duties, levies, taxes, or similar governmental assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction, if any.
“Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), original works of authorship, algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
“Intellectual Property Rights” means all: (a) copyrights, (b) moral rights, (c) rights associated with works of authorship, (d) trademark rights, (e) trade name rights, (f) trade secret rights, (g) patent and industrial property rights (whether registered or not), and (h) other proprietary rights, in Intellectual Property.
“Salesforce” means the Salesforce.com software as a service (SaaS) platform, including, without limitation, the Salesforce software.
“Services” means the consulting services to be provided by Company to the Client as described in this Agreement and any related SOW(s).
“Statement(s) of Work” or “SOW(s)” means any statements of work including any changes and modifications, that describe the Services to be provided by Company to the Client.
“Third Party Developers” means third party cloud software, including but not limited to Salesforce’s software.

Services

Services. Company will provide to Client the Services specified in each SOW (as applicable), subject to Client’s payment of all applicable fees as set forth in the “Fees” section of this Agreement. Company will provide the Services, in accordance with the Agreement and the applicable SOWs.
Change Orders. Changes to a SOW will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
Terms. If there is a conflict between the terms of a SOW and this Agreement, this Agreement shall prevail unless explicitly overridden with a cross-reference to this provision. For conflicts related to indemnification, Intellectual Property, limitation of liability, confidentiality, or data privacy, the terms of this Agreement will always control for the purpose of that conflict.
Subcontractors. Company may use its Affiliates and or subcontractors to perform the Services. Company shall be liable for the actions and omissions of its subcontractors to the same extent as if such actions and omissions were performed directly by Company, and for purposes of this Agreement, all work performed by Company's subcontractors shall be deemed work performed by Company. Company shall be Client's sole point of contact regarding the Services, including with respect to payment.

Client requirements

The Client will:

ensure that sufficient and appropriate Salesforce licenses are purchased;
allocating sufficient resources and timely performing any tasks reasonably necessary to enable Company to perform its obligations under each SOW.
timely delivering any Client deliverables and other obligations required under each SOW
timely responding to Company’s inquiries related to the Services
assigning an internal project manager for each SOW to serve as a primary point of contact for Company
actively participating in scheduled project meetings
complete, accurate and timely information, data and feedback all as reasonably required.
providing, in a timely manner and at no charge to Company, access to appropriate and knowledgeable employees and agents of Client, and continuous administrative access to Client’s Salesforce instance.
be responsible for the content of any database, the selection and implementation of controls on access and use, backup and recovery of its data, and security of stored data, including implementing any procedures necessary to safeguard the integrity and security of software and data accessed by Company in the provision of the Services;
Any delays in the performance of Services caused by Client may result in additional applicable charges for resource time.

Payment Terms

Terms of Payment. The Client will pay all Fees in accordance with the payment terms as set out in the applicable SOW. Unless otherwise provided in the relevant SOW, Company will invoice the Client monthly and the Client will pay the Fees in respect of such invoice within thirty days of the date of such invoice. All invoices are deemed accepted by the Client within five Business Days after they have been delivered to the Client. All amounts owing on account of past due invoices will incur interest at a rate of 1.5% per month (18% per annum equivalency), calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full. Client shall be responsible for legal fees incurred by Company for the collection of any unpaid invoices. Client is responsible for providing Company with its complete and accurate billing and contact information and notifying Company of any changes to such information
Expenses. Client will reimburse Company for reasonable travel and out-of-pocket expenses incurred in connection with Services. If an estimate of incidental expenses is provided in the applicable SOW, Company will not exceed such estimate without the written consent of Client.
Suspension of Service and Acceleration. If any charge owing by Client under this or any other agreement for services is 30 days, Company may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, Company will give Client at least 10 days’ prior notice that its account is overdue, in accordance with the. “Notice” section below for billing notices, before suspending services to Client.
Payment Disputes. Company will not exercise its rights under the “Overdue Charges” or “Suspension of Services” sections above if Client is disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute

Warranties, Representations, Disclaimers & Remedies

Each party represents that: (i) it is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite power and authority to execute and deliver the Agreement and to perform its obligations under the Agreement; (iii) it owns all rights, title, and interest in and to, and sole and exclusive ownership of the documentation and any material claimed by it to be its intellectual property which do not and will not infringe any third party’s rights, and (iv) it will comply with all laws, regulations and ordinances applicable to its performance under this Agreement.
Company warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Client’s exclusive remedy and Company’s entire liability will be the re-performance of the applicable Services. If Company is unable to re-perform the Services as warranted, Client will be entitled to recover the Services fees paid to Company for the deficient Services. Client must make any claim under the foregoing warranty to Company in writing within 30 days of performance of such Services in order to receive warranty remedies.
THE WARRANTY IN SECTION 5.2 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Company makes no representations or warranties regarding Third Party Developers or their software, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose). No representation or warranty by such Third Party Developers is binding on Company nor shall breach of such warranty relieve the Client of its obligations to Company. Third Party Developers may require the Client to enter into license agreements or pay license fees for the use of their software which, unless expressly set out herein or in a SOW, are not included in the Fees. Third Party Developers may make changes to the software upon which the Services are based (“Third Party Software Changes”). Company will not be responsible for any fixes, patches, or replacement code that may be required as a result of such Third Party Software Changes.
The warranties provided in this Agreement comprise all the warranties made with respect to the Services. Any other representations, warranties, conditions, or other terms, whether express or implied and including, without limitation, implied warranties, conditions and other terms of merchantability, satisfactory quality or fitness for a particular purpose, are expressly excluded to the extent permitted by law.

Indemnification

Each party (“Indemnitor”) agrees to defend, hold harmless and indemnify the other party, its officers, directors, employees, agents, and subcontractors (“Indemnitee”)from and against any and all expenses, loss or liability incurred by the Indemnitee as a result of any third-party claim for: (a) it’s gross negligence, willful misconduct or fraud; (b) fines, penalties and levies assessed against Indemnitee by a regulatory authority or governmental entity having authority over the Indemnitee as a result of the Indemnitor’s failure to comply with applicable law in the performance of services under the Agreement; and (c) any claim that the Indemnitor’s Intellectual Property infringes or misappropriates any intellectual property right of any third party. The foregoing indemnification obligations are conditional upon the Indemnitee providing the Indemnitor with prompt written notice of any such claim or action. Any failure to provide such notice shall only relieve the Indemnitor of its indemnification obligations under this Agreement to the extent it can demonstrate actual, material prejudice to its ability to mount a defense as a result of such failure. The Indemnitor shall have sole control over the defence of any such claim or action and the Indemnitee shall cooperate in such defence. The Indemnitor shall obtain the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed, for any settlement or compromise of any claim that does not include the unconditional release of the Indemnitee from the indemnified liability hereunder or requires any specific performance, non-pecuniary remedy or for the payment of any amount by the Indemnitee.
This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.

Limitation of Liability

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT AND ITS AFFILIATES HEREUNDER FOR THE STATEMENT OF WORK OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION.

Intellectual Property

Client Intellectual Property. Client does not grant to Company any rights in or to Client’s intellectual property except such licenses as may be required for Company to perform its obligations hereunder.
Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
License for Contract Property. Upon Client’s payment of fees due under an applicable SOW, SFD grants Client a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for its internal business purposes associated with its use of Salesforce services anything developed by Company for Client, under this Agreement (“Contract Property”). Company and Client each retains all right, title and interest in its respective intellectual property and Company retains all ownership rights in the Contract Property.

Confidential Information

For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of Company providing the Services to the Client and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (c) is or becomes publicly available without breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
Each of Company and the Client agree with the other that it shall: (a)take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information; (b) not copy the Confidential Information except as may reasonably be required by Company in the provision of the Services; (c) not use the Confidential Information for its own purposes; (d) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons; (e) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and (f) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, the Receiving Party will only disclose such Confidential Information to those directors, officers, employees or agents (“Receiving Party’s Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Party’s Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.

Term and Termination

This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this section.
Termination for Convenience. Either party may terminate this Agreement at any time for convenience upon 90 days’ written notice to the other. To the extent there are SOWs s in effect when a party terminates this Agreement, such SOWs s shall continue to be governed by this Agreement as if it had not been terminated. Client may terminate an individual SOW for convenience to the extent set forth in such SOW.
Either party may terminate this Agreement and any SOW by providing written notice if the other party: (a)is in material breach of this Agreement (including, without limitation, failure to pay the Fees) and such breach has not been cured within thirty (30) days, or such time period as is mutually agreed upon by the parties, of the provision of notice of such breach to the breaching party; or (b)is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator 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.
Payment Upon Termination. Upon any termination of an SOW, Client will pay, in accordance with the “Payment terms” section of this Agreement, any unpaid fees and expenses incurred on or before the termination date (such Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that Client terminates an SOW for cause and Client has pre-paid any fees for Services not yet received, Company will refund such pre-paid fees. In the event that Company terminates an SOW for cause, any pre-paid fees for Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW.
Upon termination of the Services, each party will immediately, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, the Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data
Sections: Definitions, Services, Client Requirements, Payment Terms, Warranties, Representations, Disclaimers & Remedies, Limitation of Liability, Intellectual Property, Confidential Information, Term and Termination, Dispute Resolution, and General shall survive the termination of the provision of the Services and the Client hereby acknowledges and agrees that the provisions of and all restrictions contained in this Agreement are reasonable and are necessary for the protection of the parties’ legitimate interests and proprietary rights and are an essential condition of this Agreement.

Force Majeure

Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, acts of God, war, terrorism, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labour disputes, civil insurrection, civil or military authority, inability to obtain necessary labour, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement having regard to the applicable circumstances. An event of Force Majeure shall not relieve the Client of its payment obligations pursuant to this Agreement.

Dispute resolution.

If there is a dispute or difference (“Dispute”) between the parties arising out of or in connection with this Agreement, then within five (5) business days of a party notifying the other party in writing of the Dispute, a senior representative from each party shall meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this Section 12.1, unless the party seeks injunctive or other interlocutory relief.
Both parties must continue performing their respective obligations and responsibilities under this Agreement while any Dispute is being resolved in accordance with this Section 12, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
The Parties agree that monetary damages may be an inadequate remedy for any breach or threatened breach of any provision of this Agreement concerning Confidential Information, Intellectual Property Rights or other matters for which equitable rights may be granted. Accordingly, such provision may be enforced by injunction or other order of a court of competent jurisdiction.

General

headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.
Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. currency.
The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement
In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of this Agreement may be made accordingly as the context requires.
Unless otherwise expressly prohibited, Company may use the name, logo, and identifying description of the Client in its list of customers and Company may generally make known the relationship between Company and the Client. In the event the Client has brand guidelines and notifies Company of those brand guidelines, Company will only use the Client’s name and logo in accordance with the Client’s brand guidelines.
No alteration or amendment to this Agreement shall take effect unless it is in writing duly executed by each of the parties.
This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, and the parties agree to attorn to the exclusive jurisdiction of British Columbia.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.
Any notice, payment or other communication required or permitted to be given or served pursuant to this Agreement shall be in writing and shall be delivered personally or forwarded by registered mail to the party concerned at the address specified in this Agreement, or to any other address as may from time to time be notified in writing by any of the parties. In the case of Company, any such notices must be sent to Legal@oversushi.com . Any notice, payment or other communication shall be deemed to have been given on the day delivered, if delivered by hand, and within four Business Days following the date of posting, if mailed; provided that if there shall be at the time or within four Business Days of mailing a mail strike, slow-down or other labour dispute that might affect delivery by mail, then the notice, payment or other communication shall be effective only when actually delivered.
The provisions of this Agreement constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.
The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to this Agreement.
Except with written consent of the other party, neither party may assign any of their respective benefits, obligations or liabilities under or in respect of this Agreement, provided, however that: (a) Company may assign this Agreement to an Affiliate of Company, at its sole discretion; and (b) either party may assign this Agreement, in its entirety, in the event of sale of all or substantially all of its assets or a merger or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder.
This Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.
This Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. This Agreement may be executed and delivered electronically. An executed copy of this Agreement delivered electronically will constitute valid execution and delivery.