Appendix A - Terms & Conditions 

These Terms and Conditions ("Terms") shall govern the Services provided by Difenda as set forth in the SOW, to which these Terms are attached.  If there is a conflict between these Terms and the terms of any Statement of Work, the SOW shall govern.  

Definitions 

Capitalized terms not otherwise defined in the SOW shall be defined as follows:  

"Confidential Information" means any information of a Party that is either non-public, confidential, private, personal or proprietary in nature, whether the information is conveyed orally or in written or other tangible form, including (but not limited to) trade secrets and technical, financial and business information and models, data, customer information, information about an identifiable person, ideas, concepts, know-how, corporate strategies, reports, plans, techniques, business requirements, specifications, software (in source code format) and programs, documentation and any other data belonging to a Party, or any other information that is designated as confidential or personal information or otherwise communicated on a confidential basis.  However, a Party's Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party's lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; or (c) is lawfully disclosed to the other Party by a third party without restriction on disclosure; or (d) is independently developed by the other Party by employees or agents without access to the Party's Confidential Information. 

"Deliverables" means any deliverable delivered by Difenda to the Customer pursuant to the SOW. 

"Disclosing Party" means a party who discloses Confidential Information. 

"Intellectual Property Right" means any right that is or may be granted or recognized under any Canadian or foreign legislation regarding patents, copyrights, moral rights, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing. 

"Party" shall mean each party to the SOW, and "Parties" shall mean both parties to the SOW. 

"Receiving Party" means a Party who receives Confidential Information of the other Party. 

Payment and Pricing 

The Customer agrees to pay Difenda the fees stated in the SOW executed by the Parties, plus materials stated on any bill of materials that is part of the SOW, and any pre-approved expenses or disbursements.  Unless otherwise agreed to in the SOW, all payments shall be due within thirty (30) days of the invoice date. 

Any fees or other amounts due hereunder that are not paid on or before their due date will accrue interest at 1.5% per month (18% per annum), calculated from the due date until paid or the maximum permitted by law, whichever is less. 

Intellectual Property Rights 

Unless otherwise specified in the SOW, the Parties agree that all Deliverables, including all Intellectual Property Rights therein, belong to Difenda. Difenda grants a limited, perpetual license to the Customer to use, copy or modify Deliverables for any internal purpose only. Difenda may freely use its ideas, concepts, know-how, and techniques that it develops during the course of providing Services and Deliverables under the SOW, subject to Difenda's confidentiality obligations and provided that such ideas, concepts, know-how, or techniques do not violate any Intellectual Property Right of the Customer.  

All Intellectual Property Rights to all property, data (including source data), information, equipment, servers, systems, supplies and materials provided by the Customer or its affiliates (the "Customer Materials") shall remain at all times vested in the Customer or its affiliates, and nothing contained herein shall be deemed in any way to transfer any ownership or other interest therein to Difenda. 

The Customer hereby grants to Difenda a non-exclusive, limited, fully paid license during the Term to use and/or access the Customer Materials for the sole purpose of performing Services for the Customer in accordance with the terms and conditions of the SOW and any SOW.  All rights not expressly granted to Difenda hereunder are expressly reserved to the Customer.  The Customer accepts sole responsibility at all times and in all circumstances for the accuracy and adequacy of the Customer Materials of whatever origin and their instructions, procedures, and the results obtained from them.  

Representation, Warranties, and Covenants 

Difenda covenants that it has and shall maintain during the Term of the SOW the proper licenses and rights to perform the Services and provide the Deliverables. 

Difenda represents, warrants and covenants that: (i) its employees, subcontractors, and affiliates performing Services on behalf of Difenda pursuant to the SOW and any related SOW, have the experience, capability and resources to efficiently perform the Services to be provided hereunder, and shall perform all such services in a professional and workmanlike manner and in accordance with the generally accepted standards, forms, procedures and techniques established from time to time by the industry; and (ii) each Deliverable shall  substantially conform to the specifications set forth in the SOW. 

Each Party covenants that shall comply with all applicable laws, statutes, ordinances, by-laws and regulations as it relates to the SOW or any part thereof, including environmental legislation, tax legislation, health and safety legislation and employment legislation. 

The Customer agrees to reasonably cooperate with Difenda's performance of Services. The Customer further agrees to take any and all actions reasonably necessary to enable Difenda to perform the Services contemplated herein in an effective and efficient manner. 

Limitation of Liability 

Except as specifically stated in the SOW, Difenda makes no representations or warranties regarding its services, including, without limitation, express or implied warranties, and Difenda expressly disclaims the warranties of fitness for a particular purpose or merchantability and any other warranty, express or implied. 

In no event will either Party, or their suppliers, be liable to the other Party, whether in contract or in tort or under any other legal theory (including, without limitation, strict liability and negligence), for lost profits or revenues, loss of use or loss of data, or for any indirect, special, exemplary, punitive, multiple, incidental, consequential or similar damages, arising out of or in connection with the performance or non-performance of the SOW, even if advised of the possibility of such damages.  In no event will Difenda's liability under any claim made by the Customer exceed an amount equal to the total amount of fees actually paid by Customer to Difenda under the SOW to which the claim relates, in the twelve (12) month period immediately preceding the time that the cause of action arose. Notwithstanding the foregoing, however, in no event shall a Party's liability be limited in amount of damages arising from (a) gross negligence or willful misconduct, or (b) breach of its confidentiality obligations under the SOW. 

Confidential and Personal Information 

During the Term of the SOW, and for so long as the Disclosing Party considers any of its information as confidential, the Parties agree that any and all Confidential Information of the Disclosing Party will not be disclosed to any third person without the express consent of the Disclosing Party. 

Receiving Party will not use Disclosing Party's Confidential Information for any purpose other than as and to the extent required to exercise its rights or perform its obligations under the SOW. 

In the event of any impermissible disclosure, loss or destruction of Confidential Information, the Receiving Party will immediately notify the Disclosing Party and take all reasonable steps to mitigate any potential harm or further disclosure, loss or destruction of such Confidential Information, including complying with the applicable requirements set out in the SOW. 

The foregoing prohibitions on disclosure of Confidential Information shall not apply to the extent Confidential Information is required to be disclosed by the Receiving Party as a matter of law or by order of a court. 

Term, Termination, and Survival 

These Terms shall operate for the duration of the SOW. 

In the event that either Party breaches or fails to perform or observe any material term, obligation, agreement, covenant, representation or warranty set forth in the SOW, the other Party may immediately terminate the SOW upon written notice to the other Party if such breach or failure is not fully remedied or corrected within thirty (30) days after delivery of written notice thereof to the Party in default. 

Upon the termination of the SOW for any reason: (i) Difenda shall immediately cease performing Services under this SOW; (ii) except as otherwise noted in the SOW, each Party's respective rights and obligations under the SOW shall automatically terminate; (iii) the Customer shall pay Difenda compensation due for the entire SOW; (iv) Difenda shall promptly return to Customer all Customer Confidential Information and Customer Materials; and (v) Customer shall promptly return to Difenda all Difenda Confidential Information then in the possession or under the control of Customer. 

Termination of the SOW and/or any SOW by either Party shall not act as a waiver of any breach of the SOW and/or any SOW and shall not act as a release of either Party from any liability for breach of such Party's obligations under the SOW and/or any SOW. 

General 

Customer agrees that it and its employees will not, either during the term of the SOW and for a period of twelve (12) months after its termination for any reason, solicit to hire as an employee or contractor any Difenda personnel. If Customer hires Difenda personnel prior to expiration of the said twelve (12) month period, Customer agrees to pay to Difenda, within thirty (30) days of the hiring date, an amount equal to the person's annual compensation at Difenda at the time of their departure. 

The relationship between the Parties shall be that of independent contractors.  Nothing in the SOW shall create, or be deemed to imply the creation of, any partnership, joint venture or other relationship.  Neither Party shall have the authority to incur any obligation, contractual or otherwise, in the name or on behalf of the other Party.  

No waiver of any breach of any provisions of the SOW or these Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, and no waiver shall be effective unless made in writing and signed by the duly authorized representative of the Party to be charged. 

These Terms and the SOW shall be binding on Difenda and the Customer and the respective successors and assigns of each Party.  Neither Party assign, transfer, delegate or subcontract its rights or obligations under the SOW in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party.  Notwithstanding the foregoing, either Party may assign the SOW pursuant to a merger, acquisition, or other substantial change of control event. 

The SOW and these Terms shall be governed and construed in accordance with the internal substantive laws of the Province of Ontario without regard to its conflicts of laws principles.  The Parties agree that jurisdiction and venue in the courts of the Province of Ontario is appropriate, and that any legal proceedings shall be brought only in the Province of Ontario.