These Statement of Work Terms and Conditions (“SOW Terms and Conditions”) apply to all Statements of Work (“SOW”) provided by Able-One Systems Inc. (“Able One”), a corporation organized under the laws of the Province of Ontario, with its principal place of business at 127 Victoria St. S. Kitchener, Ontario, N2G 2B4 (“Able One”) to Customer (as defined in the SOW). Able One and Customer hereinafter may be referred to individually as a “Party” and collectively as the “Parties”.

Unless otherwise agreed to in a SOW, Able One reserves the right to make changes to these SOW Terms and Conditions. Able One will notify Customer of changes by: (a) posting a notice on the Able One website for a period of 30 days before such changes will become effective (“Effective Change Date”); and/or (b) sending Customer an email notification of such changes at least 30 days prior to the Effective Change Date. As of the Effective Change Date, the most current and up to date version of these SOW Terms and Conditions will be accessible on the website and the continued use of the Services will signify acceptance to the revised SOW Terms and Conditions.

In the event of a conflict between these SOW Terms and Conditions and an applicable SOW, the terms and conditions of the SOW shall govern with respect to the conflict.

1. Scope of Services; Relationship to SOW

1. Able One shall use commercially reasonable efforts to provide the services described in the SOW (the “Services”).
2. These Standard Terms and Conditions, along with the SOW form the “Agreement” between the parties.
3.  

2. Payment

1. Customer agrees to pay to Able One the fees and expenses as set-out in the SOW for Services rendered by Able One under the SOW, plus applicable taxes. Such fees and expenses shall be billed 50% upon execution of this SOW with payment due upon receipt. The remaining fees under this SOW shall be invoiced upon the completion of the project, if within 30 days of execution of this SOW, or otherwise in accordance with a milestone-billing schedule as determined by Able One. In no event shall less than 10% of the total invoicing be deferred to project completion. If project completion does not occur within 180 days of SOW execution, and the delay is not caused by Able One, the final invoice will be generated and include a project deferral fee of 10% of total project fees, at Able One’s sole discretion. Customer will have 90 days thereafter to allow for the completion the project. Payment of such fees and expenses shall be due within 30 days after the invoice date, and at the place and in the manner set-out in the invoice. If not paid by the due date, there will be a late charge imposed on the next invoice at the rate of 24% per annum.  If overdue amounts are not received by Able One within 7 days of the date of the late notice, then Able One may suspend performance of the Services and may, at its sole option, terminate this Agreement.
2. Customer shall reimburse Able One for all reasonable out-of-pocket, travel and living expenses incurred by Able One’s personnel in the performance of the Services. Such expenses may be detailed in the SOW.
3. Taxes and duties for non-Canadian entities: Prices quoted are to be net of withholding taxes, duties and other deductions; Customer shall be responsible for all necessary gross up to Able One for any applicable sales, use, VAT, withholding and other taxes and import or export duties, or similar governmental charges or duties incurred in connection with this quote.

3. Term and Termination

1. This Agreement shall become effective upon execution by both parties and will terminate when the Services are delivered.
2. Either party may terminate this Agreement: (a) immediately upon written notice, if the other party materially breaches or materially fails to perform any of its obligations under this Agreement, and such breach or failure to perform remains unremedied (if capable of being remedied) for a period of 30 days (10 days, in respect of payment obligations) after the other party has been given written notice thereof; or (b) immediately upon written notice, if the other party becomes bankrupt, insolvent, makes a composition or arrangement with its creditors, has a receiver, administrator, administrative receiver or other encumbrancer take possession of or control over  any substantial part of its assets, or otherwise undergoes any event analogous to any event referred to above in any jurisdiction.
3. Upon termination of this Agreement, Able One shall be entitled to payment for, and Customer shall promptly pay to Able One (i) all fees and expenses due for Services performed prior to the effective date of termination; and (ii) all expenses reasonably related to winding down and terminating Able One’s Services hereunder.

4. Work Product

1. Customer agrees that Able One exclusively owns all right, title and interest in and to all developments, deliverables and work product resulting from the performance of the Services that Able One makes, conceives, invents, discovers, creates, writes or develops, either solely or jointly with others and either on or off Able One’s premises (the “Work Product”), including, but not limited to, all proprietary and intellectual property rights. Customer hereby irrevocably waives all moral rights (if any) and all similar rights (if any) that Customer has or may have in or to the Work Product.
2. Able One acknowledges that all equipment and materials that Customer provides to Able One or provides Able One with access to in connection with this Agreement are not part of the Work Product and, as between Able One and Customer, are owned by Customer. Customer grants to Able One a non-exclusive license to access and use such equipment and materials to the extent necessary for Able One to provide the Services, and Customer represents and warrants to Able One that it has all rights, consents and authorizations necessary to grant such license to Able One.

5. Confidentiality

1. “Confidential Information” means all non-public information and any information which ought reasonably to be considered confidential having regard to the circumstances surrounding disclosure, regardless of the format in which it is provided, of the disclosing party (“Disclosing Party”) or its affiliates (and, with respect to Able One, its suppliers), which is provided or disclosed to the receiving party (“Receiving Party”), or learned or accessed by the Receiving Party, in connection with the Receiving Party’s performance of its obligations pursuant to this Agreement or any Statement of Work. For the avoidance of doubt, Confidential Information includes (a) the terms of this Agreement; and (b) any information concerning the business and affairs of the Disclosing Party or its affiliates (and, with respect to Able One, its suppliers).
2. Each party agrees not to sell, license, transfer, publish, disclose, display or otherwise make available to others, or to use any Confidential Information, except in connection with the performance of this Agreement, without the prior written consent of the other party.
3. Each party acknowledges that unauthorized disclosure of any Confidential Information of the other party will cause irreparable injury to the other party, which injury may be inadequately compensable in damages. Accordingly, either party may seek to obtain injunctive relief against the breach or threatened breach by the other party of the confidentiality obligations hereunder, in addition to any other legal remedies which may be available.
4. Upon termination of this Agreement, each party shall return all Confidential Information in its possession or under its control that belongs to the other party.

6. Disclaimer, Limits on Liability, and Indemnification

1. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ABLE ONE CANNOT AND DOES NOT GUARANTEE OR MAKE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY, VALIDITY, SEQUENCE, TIMELINESS, OR COMPLETENESS OF THE SERVICES, OR THAT THE RESULTS OF THE SERVICES ARE OR WILL BE ERROR-FREE.  ABLE ONE FURTHER EXPLICITLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.
2. CUSTOMER ACKNOWLEDGES AND AGREES THAT DUE TO THE COMPLICATED, ORIGINAL AND UNCERTAIN NATURE OF THE SERVICES, THE SERVICES AND THE IMPLEMENTATION OF THE SERVICES MAY RESULT IN LOSS, DAMAGE OR DESTRUCTION OF DATA AND LOSS OF REVENUES, AND THAT ABLE ONE IS IN NO WAY LIABLE FOR ANY SUCH LOSSES OR DAMAGES. ABLE ONE IS NOT CUSTOMER’S RECORD KEEPER FOR REGULATORY OR OTHER PURPOSES AND SHALL HAVE NO OBLIGATION TO RETAIN, MAINTAIN OR BACKUP ANY RECORDS OR DATA ON CUSTOMER’S BEHALF DURING THE TERM OR AFTER TERMINATION OF THIS AGREEMENT.
3. CUSTOMER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES WILL ABLE ONE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST PROFITS, LOST REVENUES, LOST BUSINESS, OR GOODWILL, REGARDLESS OF THE FORM OF THE ACTION OR THE BASIS OF THE CLAIM, EVEN IF ABLE ONE HAS BEEN APPRISED OF THE POSSIBILITIES OF SUCH DAMAGES, AND WHETHER OR NOT SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED, EXCEPT TO THE EXTENT RESULTING FROM ABLE ONE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE EVENT ABLE ONE IS FOUND TO HAVE ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, THE TOTAL LIABILITY OF ABLE ONE FOR SUCH DAMAGES IS LIMITED TO TEN THOUSAND DOLLARS ($10,000).
4. Each party (the “Indemnifying Party”) agrees to defend and indemnify the other party (the “Indemnified Party”) against any and all claims, actions, liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees (collectively, “Losses”), arising out of any action brought by a third party resulting from (i) a material breach of this Agreement by the Indemnifying Party; or (ii) gross negligence, fraud or willful misconduct of the indemnifying party. In addition, Customer agrees to defend and indemnify Able One against any and all Losses arising out of any action brought by a third party resulting from Customer’s use of or implementation of the Services.

7. General

1. During the term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement, each party (“Breaching Party”) shall not, without the consent of the other party (“Non-Breaching Party”), solicit, seek out or employ, either directly or indirectly (as a consultant, independent contractor or otherwise) any employee or consultant engaged by the Non-Breaching Party who is or was associated with the performance of the Non-Breaching Party’s obligations pursuant to this Agreement (“Subject Individual”). It is understood that any such act by the Breaching Party could result in the immediate termination of this Agreement by the Non-Breaching party. In addition, the Non-breaching party shall be entitled to liquidated damages from the Breaching Party equal to 50% of the Subject Individual’s annual salary. It is acknowledged and agreed by the parties that this restriction is reasonable and that such restriction is not an unreasonable restraint of trade of any affected employee, agent, consultant, or contractor.
2. The parties acknowledge and agree that Able One and Customer are independent contractors and will have no power, nor will either party represent that it is has any power, to bind the other party or to assume or to create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name. This Agreement will not be construed as constituting Able One and Customer as partners, joint venturers or agents or to create any other form of legal association that would impose liability upon one party for the act or failure to act of the other party.
3. The provisions of this Agreement are for the sole benefit of Able One and Customer. This Agreement confers no rights, benefits, or claims upon any person or entity not a party to this Agreement.
4. These SOW Terms and Conditions, together with the SOW, constitute the entire Agreement between parties and supersedes all previous agreements, promises, and representations, whether written or oral, between the parties with respect to the subject matter hereof.
5. This Agreement will be governed by and construed and interpreted in accordance with the laws of Ontario and the applicable laws of Canada. The parties hereby agree that the exclusive forum for all disputes related to or arising out of this Agreement shall be an appropriate provincial or federal court in the Regional Municipality of Waterloo.
6. Customer may not assign this Agreement without the prior written consent of Able One. Able One may assign this Agreement without obtaining Customer’s consent so long as such assignment is to an affiliate of Able One, to a successor entity resulting from the merger of Able One with one more third party, or to a purchaser of all of the shares in the capital of Able One or of all or substantially all of Able One’s assets.  This Agreement shall enure to the benefit of and be binding upon each party and their respective successors and permitted assigns.
7. This Agreement may not be modified except in a written document signed by the parties.
8. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement entitled to grant the waiver.
9. If any provision of this Agreement or its application to any party or circumstance is determined to be illegal, invalid or unenforceable, the provision will be ineffective only to the extent of the illegality, invalidity or unenforceability without affecting the validity or the enforceability of the remaining provisions of this Agreement and without affecting its application to other parties or circumstances.
10. Sections 2, 3.3, 5, 6 and 7 survive termination or expiration of this Agreement.
11. This Agreement may be signed in any number of counterparts with the same effect as if the parties had signed the same document. Delivery by facsimile or by electronic transmission in portable document format (PDF) or TIF format of this Agreement is as effective as delivery of an original of this Agreement.
12. Each party shall promptly notify the other party in the event it: (a) becomes subject to any bankruptcy or insolvency proceedings; (b) has a dispute with the other party; or (c) otherwise is required to provide notice hereunder. Any and all notices required to be delivered hereunder shall be sent by email to the e-mail address set-out in the SOW (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address set out in the SOW (“Mail Notification”). Any such notification shall be deemed effective: (i) upon transmission when delivered by Email Notification; or (ii) when delivered by Mail Notification