TERMS AND CONDITIONS
By subscribing for Services from Noralta Technologies Inc. ("Noralta"), the client (the "Client") agrees that the following terms and conditions will apply to the Services provided by Noralta:
"Assets" means those assets of the Client identified by the Client from time to time in writing, by e-mail or through on-line subscription, and which are accepted by Noralta as assets in respect of which Services will be provided.
"Claim" means any claim or demand, by any Person, of whatever kind or nature for any actual or alleged Liabilities and Costs, including without limitation any such claim or demand whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, permit, ordinance or regulation, common law or otherwise.
"Client Hardware" means such third party manufactured hardware devices which have been pre-approved by Noralta for compatibility with the Services, whether purchased by the Client from Noralta or purchased by the Client from a Person other than Noralta.
"Confidential Information" means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.
"Effective Date" means the date on which the Client subscribes for Services, regardless of whether such confirmation is in writing, online subscription, telephone, e-mail or other electronic means.
"Environmental Laws" means:
any applicable federal, state, municipal or local laws, statutes, ordinances, by-laws, and regulations relating to (A) the management, manufacture, processing, distribution, use, storage, treatment, generation, transportation, processing, handling, labeling, production, containment, release or disposal of Hazardous Substances, (B) pollution or destruction of, or loss of, or injury to, or any adverse effect on the environment, or (C) the protection, clean-up or restoration of or remediation or mitigation of conditions affecting the environment; and
any common law that may impose liability or obligations for injuries or damage due to the presence of or exposure to any Hazardous Substance.
"Expiration Date" means the 30th day following the date the Client or Noralta provides notice to the other of the termination of Services, such notice being provided in writing, by online cancellation or e-mail, or such earlier date as results from a termination hereunder.
"Hazardous Substance" means any substance that because of its quantity, concentration or physical, chemical or infectious characteristics, either individually or in combination with other substances, is an existing or a potential threat to the environment, human health or other living organisms and without limiting the generality of the foregoing shall include any substance whether liquid, solid or gas which is from time to time listed, defined, designated or classified as hazardous, toxic, radioactive or dangerous, or as a pollutant or waste, under any applicable Environmental Laws, whether by quality, type or quantity
"Liabilities and Costs" means all liabilities, obligations, responsibilities, losses, damages of any nature, personal injury (including death), intentional, willful or wanton injury, damage or threat to the environment, costs and expenses (including, without limitation, legal, expert and consulting fees), fines, penalties, interest and costs and expenses reasonably undertaken to mitigate damages or other Liabilities and Costs, whether direct or indirect, known or unknown, absolute or contingent.
"Person" includes any person, individual, corporation, partnership, trust, trustee of a trust, limited liability company, non-governmental entity or any government or governmental authority
"Services" means all hosted software and associated services provided by Noralta, including but not limited to: (i) the installation and maintenance of automation hardware; (ii) the acquisition of data from, and monitoring of, Assets; (iii), the generation of reporting in respect of Assets; (iv) the managing of documents; (v) the configuration of asset settings; (vi) the provision of SCADA monitoring services in respect of Assets, which services may be comprised of: (A) the monitoring of Assets through the transmission of facility operational and instrumentation data to Noralta's servers; (B) the creation of standard and, for additional charges, non-standard graphical displays for Assets being monitored; (C) the provision of 24 hours a day, 365 days a year control center monitoring; (D) the communication to the Client of any alarms in respect of the monitored Assets via voice call, text message or e-mail and based upon the Client's response protocol; and (E) the preparation and delivery to the Client of daily, weekly or monthly reports, as agreed to between Noralta and the Client; (F) the storage of all data collected through Noralta's SCADA system; and (vii) such other services as may be agreed to between Noralta and the Client.
"Subcontractor" shall mean a third party that has entered into an agreement with Noralta to assist in providing services to Client.
"Third Party Services" shall mean and include all services provided to, or for the benefit of, the Client by a Person other than Noralta, including services provided by a Subcontractor.
Scope of Work
Noralta shall engage personnel and/or Subcontractors to provide the Services to Client in respect of those Assets as described from time to time by the Client through online subscription, e-mail or other communication in writing.
Client shall make readily available to Noralta in a timely fashion any equipment, material, information, data and facilities as Noralta may reasonably require to carry out its obligations and shall provide Noralta with timely access to appropriate members of Client's personnel and agents as may be reasonably required by Noralta for the provision of the Services.
If Noralta is required to access Client's facilities, Client shall provide Noralta with such access during its normal business hours or at such other times as may be reasonably requested by Noralta to facilitate the timely performance of the Services.
Client acknowledges and agrees that Noralta may retain the services of Subcontractors and other agents to perform, or to assist Noralta in providing, the Services. Noralta personnel, Subcontractors and other agents shall remain under the direction and control of Noralta.
Client acknowledges that Noralta and its Subcontractors, including telecommunication carriers and service providers, whether cellular or satellite, require standard maintenance windows. Except in respect of emergency maintenance, Noralta will notify the Client of any scheduled Noralta maintenance windows which Noralta reasonably expects to interfere with the provision of Services at least fourteen (14) days in advance of any outage to be caused as a result thereof and will use reasonable efforts to notify the Client of any maintenance windows of Subcontractors, of which it is aware. Noralta reserves the right to perform emergency maintenance and upgrades that are system critical at any time without notification and will make every reasonable effort to avoid and minimize such emergencies.
Network/Cellular/Satellite Limitations on Service, Liability and Indemnity. Client acknowledges and agrees that all network, cellular and satellite services (including networks of Noralta and networks of third parties or Subcontractors) are made available only within the operating range of the applicable network. Such network, cellular and/or satellite service may be temporarily refused, interrupted, or limited because of: (a) hardware failure relating to network, cellular and/or satellite equipment; (b) facilities limitations; (c) transmission limitations caused by atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, and other causes reasonably outside of Noralta's and any third party or Subcontractor's control; or (d) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of service. Connections may be "dropped" (i.e., involuntarily disconnected) for a variety of reasons, including, without limitation, atmospheric conditions, topography, power interruption, system overcapacity, movement outside a service area or gaps in coverage within a service area. Neither Noralta nor any third party or Subcontractor shall incur any liability for the failure to provide network, cellular and/or satellite services as a result thereof. Neither Noralta nor any third party or Subcontractor makes any representations or warranties as to the availability or quality of roaming or other service provided by network, cellular and/or satellite systems, where required, and neither Noralta nor any third party or Subcontractor shall have any liability whatsoever for any errors, outages, or failures of roaming services provided by network, cellular and/or satellite service carriers (including Noralta's own systems). Client acknowledges that it has no contractual relationship with any third party or Subcontractor providing network, cellular and/or satellite service and that the Client is not a third party beneficiary of any agreement between Noralta and any third party or Subcontractor. Client hereby expressly acknowledges, understands and agrees that Noralta and any such third party or Subcontractor shall have no legal, equitable, or other liability of any kind to the Client. Client agrees that it shall indemnify and hold harmless Noralta and such third parties and Subcontractors and their respective directors, officers, employees, and agents against any and all Claims, arising in any way, directly or indirectly, in connection with this Agreement or the use, failure to use, or inability to use the network, cellular and/or satellite services except where the claims result from Noralta's or such third party or Subcontractor's gross negligence or intentional misconduct. This indemnity shall survive the termination of the Agreement.
Charges and Payment
The charges for the Services are as communicated by Noralta to the Client from time to time. Unless otherwise stated, all charges are payable in Canadian Dollars and exclude applicable federal, state, provincial, use, value-added and local taxes. Client shall pay to Noralta the amount of any such tax.
All amounts payable under this Agreement shall be paid by Client to Noralta within thirty (30) days of the date of invoice. Unpaid invoices more than thirty (30) days overdue may be subject to an interest charge of one percent (1%) per month.
Warranty and Limitations of Liability
Noralta represents and warrants to Client that the Services shall be performed in keeping with reasonable industry practice. In the event of a breach of this warranty by Noralta, the sole and exclusive remedy of the Client shall be re-performance of the offending Services by Noralta or receiving a refund of the fees paid for the offending Services, such remedy to be at Noralta's election. While Noralta will use reasonable commercial efforts to respond to Client personnel within the parameters of the Client's response protocols, Noralta shall for all purposes hereof be deemed to have satisfied its obligations to provide the Client with notification of any notifiable event or alarm if Noralta contacts any authorized contact of the Client to report such event or alarm.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NORALTA DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL NORALTA (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) BE LIABLE TO CLIENT FOR: (I) ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY OR LOSS OF LIFE; OR (II) FOR ANY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS OR OTHER SIMILAR ECONOMIC LOSS.
IN NO EVENT SHALL NORALTA (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) BE LIABLE, NOR SUBJECT TO ANY CLAIMS BY THE CLIENT (OR ANYONE CLAIMING THROUGH THE CLIENT), FOR ANY LIABILITIES AND COSTS RELATED TO ANY ASPECT OF THE CLIENT HARDWARE AND THE CLIENT ACKNOWLEDGES AND AGREES THAT ITS SOLE RECOURSE FOR ALL CLAIMS, LIABILITIES AND COSTS ARISING AS A RESULT, WHETHER DIRECTLY OR INDIRECTLY, OF THE CLIENT HARDWARE SHALL BE AGAINST THE MANUFACTURER OF SUCH CLIENT HARDWARE.
IN NO EVENT SHALL NORALTA (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) BE LIABLE, NOR SUBJECT TO ANY CLAIMS BY THE CLIENT (OR ANYONE CLAIMING THROUGH THE CLIENT), FOR ANY LIABILITIES AND COSTS RELATED TO ANY FAILURE OF THIRD PARTY SERVICES AND THE CLIENT ACKNOWLEDGES AND AGREES THAT ITS SOLE RECOURSE FOR ALL CLAIMS, LIABILITIES AND COSTS ARISING AS A RESULT, WHETHER DIRECTLY OR INDIRECTLY, OF ANY THIRD PARTY SERVICES SHALL BE AGAINST THE SUPPLIER OF SUCH THIRD PARTY SERVICES.
THE TOTAL LIABLITY OF NORALTA TO THE CLIENT PURSUANT TO THIS AGREEMENT SHALL BE LIMITED, IN THE AGGREGATE TO THE AMOUNTS PAID BY THE CLIENT TO NORALTA FOR THE SERVICES (AS DEFINED HEREIN) PROVIDED IN RESPECT OF THE SINGLE SPECIFIC ASSET IN RESPECT OF WHICH LOSS AND/OR DAMAGES ARE ALLEGED DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE OCCURRENCE RESULTING IN THE LOSS OR DAMAGE, WHICH FOR GREATER CERTAINTY SHALL NOT INCLUDE AMOUNTS PAID BY THE CLIENT IN RESPECT OF SERVICES PROVIDED FOR ANY OTHER ASSET OR SERVICE.
THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE UNDERLYING CAUSE OF ACTION IS IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY.
THE CLIENT ACKNOWLEDGES THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES AND THAT NORALTA WOULD NOT AGREE TO PROVIDE THE SERVICES BUT FOR SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY BEING IN PLACE.
The Client shall indemnify and hold harmless Noralta from and against all Liabilities and Costs sustained or incurred by Noralta, and all Claims which may be made or brought against Noralta by any Person, to the extent based upon, related to, occasioned by, arising out of, resulting from or attributable to: (i) any act or omission of the Client arising out of or related to this Agreement or the performance or non-performance of the Client's responsibilities under this Agreement; or (ii) any violation of laws (including Environmental Laws) to the extent caused by or resulting from the operations, acts or omissions of the Client.
Confidentiality and Protection of Proprietary Information and Processes
Each party shall retain the Confidential Information of the other party in confidence and shall use and disclose it solely for the purpose of, and in accordance with, this Agreement. Each party shall only disclose Confidential Information of the other party to those of its employees and Subcontractors with a need to know such Confidential Information, provided that Noralta may disclose such Confidential Information as Noralta deems necessary to perform the Services or comply with applicable laws, including Environmental Laws. Each party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use or disclosure of the other party's Confidential Information.
Neither party shall be bound by any obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information of the other party, or any part thereof, which:
was known to the receiving party prior to disclosure;
was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement;
was disclosed to the receiving party by a third party, provided that such third party is not in breach of any confidentiality obligation in respect of such information; or
is independently developed by the receiving party.
If the receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of the disclosing party, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, and (ii) provide prior notice to the disclosing party to allow the disclosing party to seek protective or other court orders.
Upon request from the disclosing party, the receiving party shall immediately return to the disclosing party all Confidential Information and copies thereof, or if directed by the disclosing party, shall immediately destroy such Confidential Information and all copies thereof, and shall furnish proof of their destruction to the disclosing party.
By subscribing for Services, the Clients agrees and acknowledges that all Noralta systems, software and hardware that the Client obtains access to are proprietary designs of Noralta to be used and accessed solely in connection with the Client's subscription for Services. The Clients also agrees that such systems, hardware and software will not be disassembled or reverse engineered for any purpose without the express with written consent of Noralta. The Client further warrants and agrees that at no time and under no circumstance shall any such system, hardware or software of Noralta used in the provision of Services be used or distributed or allowed to be used or distributed for any other purpose, including but not limited to the purpose of recreating the design of Noralta's systems, hardware or software or using features of such systems, hardware or software in its own or other parties' products or services.
The Client is responsible for compliance with all laws applicable to the Client including, without limiting the generality of the foregoing, the Client's business and monitored Assets.
The Client shall provide Noralta in writing with a detailed alarm escalation protocol and a detailed emergency response plan ("Emergency Response Plan").
The Client shall provide Noralta in writing with full contact particulars for all Client designated contact personnel and the Client shall ensure that it provides immediate notice to Noralta of all changes to such contact particulars and personnel.
Upon Noralta advising a Client designated contact, during the regular business hours of the Client, of an reportable situation, the Client shall be responsible for reporting to, and liaising with, all EMT, police and regulatory authorities as necessary.
The Client shall provide immediate feedback to Noralta of any concerns, deficiencies, malfunctions and/or defects with the Client Hardware and/or with the Services and the Client agrees to work together with Noralta and/or the Subcontractors and/or the Client Hardware manufacturer to implement appropriate solutions therefor.
The Client shall be solely responsible for reviewing and monitoring all alarm systems on Assets subject to this Agreement. Noralta shall have no liability whatsoever in respect of any failures associated with malfunctioning alarm systems on the Assets.
Term and Termination
This Agreement shall commence on the Effective Date and shall continue until the Expiration Date.
In the event either party (the "defaulting party") is in a material breach of, or fails to perform a material obligation under, this Agreement, the other party may, by notice, require the breach to be cured or the obligation to be performed. If, within ten (10) days of the receipt of such notice, the defaulting party fails to undertake a reasonable course of action to cure such breach, or fails to perform such obligation, the non-defaulting party may upon notice, in addition to any other rights or remedies it may have at law or in equity, terminate this Agreement.
Either Noralta or the Client may terminate this Agreement without cause and for convenience upon at least 30 days prior written notice to the other.
Termination of this Agreement shall not entitle Client to withhold payment of any amount due or accruing to Noralta prior to the date of such termination, or to reimbursement of any amount previously paid to Noralta.
Sections 3, 4, 5, 6 and 9 shall survive termination of this Agreement.
Client may terminate the Services to be provided by Noralta in respect of a specific Asset by notice in writing to Noralta or by such other means accepted by Noralta in its sole discretion.
Safety. Client shall take all steps reasonably necessary to ensure the health and safety of the employees and Subcontractors of Noralta when such personnel are performing the Services at Client owned or controlled sites and Client shall advise such personnel of the rules and regulations governing their conduct at Client sites.
No Partnership.. Nothing contained in this Agreement shall be deemed to constitute either party as the partner, agent or legal representative of the other party or to create any joint venture or fiduciary relationship for any purpose whatsoever. Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall confer on either party any authority to act for, bind, or create or assume any obligation or responsibility on behalf of the other party.
Notice. Any notice to be given hereunder shall be given to the party's project contact in writing by prepaid receipted mail, facsimile, or overnight courier, and shall be effective as follows (i) in the case of facsimile or courier, on the next business day, and (ii) in the case of receipted mail, five (5) business days following the date of deposit in the mail.
Force Majeure.. Neither party shall be deemed in default hereunder or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with the terms of this Agreement due to any causes beyond its reasonable control, other than a term requiring the payment of any sum to Noralta, which causes include but are not limited to acts of God or the public enemy; riots and insurrections, war, accidents, fire, strikes and other labor difficulties (whether or not the party is in a position to concede to such demands), embargoes, judicial action, lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, utilities, components or machinery, acts of civil or military authorities.
Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
Assignment. Neither Client nor Noralta shall assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the other party, except that Noralta may assign this Agreement to any party which acquires all or substantially all of its related business by merger, sale of Assets, or otherwise or to any joint venture partner of Noralta.
Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.
Governing Law. This Agreement shall be governed by the laws of the Province of Alberta, without regard to its conflict of law principles. The jurisdiction for any legal action shall be a court in the City of Calgary, Alberta.
Entire Agreement. This Agreement and any permitted communications concerning the scope of Services to be provided constitute the entire agreement between the parties on the subject matter hereof and supersede all prior agreements, communications and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized representative of both parties. All terms and conditions on a purchase order document shall be of no contractual effect between the parties.