Dell EMC Master Ordering Agreement (Canada)
MASTER ORDERING AGREEMENT (CANADA) (page 1 of 2)
This Master Ordering Agreement (“Agreement”) governs your (“you” or “Customer”) purchase and use of Dell EMC branded products and services ordered by you directly from EMC Corporation of Canada (“EMC”). By (i) issuing a purchase order to EMC for such products and/or services that references a quote to Customer from EMC; (ii) signing such quote and returning it to EMC; or (iii) sending an email or other writing to EMC referencing and ordering the items on such quote, you accept and are bound to the terms of this Agreement.
A. “Affiliate” means a legal entity that is controlled by, controls, or is under common control with EMC or Customer, respectively. “Control” means more than 50% of the voting power or ownership interests.
B. “Customer Support Tools” means any software or other tools made available by EMC to Customer to enable Customer to perform various self-maintenance activities.
C. “Documentation” means the then-current, generally available, written user manuals and online help and guides provided by EMC for Products.
D. “Installation Site” means the ship-to address or other location identified on the EMC quote or other document prepared by EMC as the site of installation and/or use of a Product, or a subsequent location approved by EMC.
E. “Maintenance Aids” mean any hardware, software or other tools, other than Customer Support Tools, used by EMC to perform diagnostic or remedial activities on Products.
F. “Products” mean “Equipment” (which is the hardware delivered by EMC to Customer) and/or “Software” (which is any programming code provided by EMC to Customer as a standard product, also including microcode, firmware and operating system software).
G. “Product Notice” means the Product and Services related information posted at the applicable EMC website at the time of the EMC quote, currently located at http://www.emc.com/products/warranty_maintenance/index.jsp.
H. “Services” mean (i) services for the support and maintenance of Products (“Support Services”) as set forth in Attachment 1 to this MOA; or (ii) consulting, installation, implementation, or other services that are not Support Services (“Professional Services”) as set forth in Attachment 2 to this MOA.
I. “Software Release” means any subsequent version of Software provided by EMC after initial Delivery of Software, but does not mean a new Product.
J. “Statement of Work” or “SOW” means a document agreed between Customer and EMC containing specifications and other transaction-specific details of the Professional Services to be provided by EMC. SOWs may, among other things, consist of (i) a separately executed, long form services specification; or (ii) a short form service description (called a “Service Brief”) with an accompanying EMC model number identified on a quote.
K. “Supplier(s)” means an entity (other than Customer) whose components, subassemblies, software and/or services have been incorporated into Products and/or Services.
2. QUOTING, PURCHASING AND PAYMENT.
A. Quoting. The description of the Products, Support Services, Services identified in a Service Brief, and related pricing are as stated in a quote to Customer from EMC. Each quote is valid for the time period specified thereon. The Product Notice informs Customer of product-specific use rights and restrictions, unit of measure (if any), warranty periods, warranty upgrades and maintenance (support) terms. The terms of the Product Notice shall be deemed to be incorporated into and made a part of the EMC quote and related Customer purchase order. Each Product Notice is dated and is archived when it is superseded by a newer version. EMC shall not change any Product Notice retroactively with regard to any Products listed on an EMC quote issued prior to the date of the applicable Product Notice. Upon request, EMC shall, without undue delay provide a copy of the applicable Product Notice and/or attach it to the relevant EMC quote.
B. Ordering and Order Acceptance. Customer may order the items on such quote by (i) issuing a purchase order to EMC that references such quote; or (ii) with the prior approval of EMC (a) signing such quote and returning it to EMC; or (b) sending an email or other writing to EMC referencing and ordering the items on such quote. Customer’s order is accepted by EMC (1) issuing an e-mail or other written communication to Customer accepting such order; or (2) shipping the applicable Products to or commencing performance of the applicable Services. Each SOW (excluding the Service Brief) becomes binding on both parties when it is signed by EMC and Customer countersigns and returns the SOW to EMC (along with a purchase order if so required in the SOW).
C. Payment. Customer shall pay EMC’s invoices in full and in the same currency as the EMC invoice within thirty (30) days after the date of EMC’s invoice, with interest accruing thereafter at the lesser of 1.5% per month (18% per annum). The charges due hereunder for Products and Services and any other items provided by EMC are exclusive of and Customer shall pay or reimburse EMC for all value added (VAT), GST, PST, HST, sales, use, excise, withholding, personal property, goods and services and other taxes, levies, customs and duties resulting from a Customer purchase order, except for taxes based on EMC’s net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to EMC at email@example.com.
3. DELIVERY AND INSTALLATION.
A. Product Delivery. Title and risk of loss for sold Equipment and physical media containing Software shall transfer to Customer at the time and place when such Equipment and physical media containing Software clear Canadian Customs (“Delivery”). Unless otherwise agreed, a common carrier shall be specified by EMC. Software may be provided by (i) Delivery of physical media; or (ii) electronic download (when so offered by EMC).
B. Product Installation and Acceptance. All Products will be deemed to be delivered and accepted, meaning that Product operates in substantial conformity to the Product’s Documentation upon (i) Delivery of the Equipment or physical media; or (ii) transmission of a notice of availability for download (accompanied by the license key when required by EMC). Notwithstanding such acceptance, Customer retains all rights and remedies set forth in the Section entitled “Product Warranty.”
4. LICENSE TERMS.
A. General License Grant. EMC grants to Customer a non-exclusive, non-transferable (except as specified in this Master Agreement) license to use the Software and the Documentation during the period of the license solely for Customer's internal business operations, and subject to the provisions of this Master Agreement. Unless otherwise indicated in this Master Agreement or the applicable EMC quote, licenses granted to Customer will be perpetual, will be for use of object code only, and will commence on either Delivery of the physical media or the date Customer is notified of availability for electronic download. Use of Software may require Customer to complete EMC’s then current product registration process, if any, to obtain and input an authorization key or license file.
B. Licensing Models. Software is licensed for use only in accordance with the commercial terms and restrictions of the Software’s relevant licensing model, which are stated in the Product Notice and/or EMC quote. For example, the licensing model may provide that Software is licensed for use solely (i) for a certain number of licensing units; (ii) on or in connection with a certain piece equipment, CPU, network or other hardware environment; and/or (iii) for a specified amount of storage capacity. Microcode, firmware or operating system software needed by the Equipment with which it is shipped to perform its basic functions, is licensed for use solely on such Equipment.
C. Copying Permitted. Customer may copy the Software and Documentation as necessary to install and run the quantity of copies licensed, but otherwise for archival purposes only.
D. License Restrictions. Without EMC’s prior written consent, Customer must not, and must not allow any third party to: (i) use Software in an application services provider, service bureau, or similar capacity for third parties; (ii) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of EMC’s Products done by or on behalf of Customer; (iii) make available Software in any form to anyone other than Customer’s employees or contractors reasonably acceptable to EMC and which require access to use Software on behalf of Customer in a matter permitted by this Master Agreement; (iv) transfer or sublicense Software or Documentation to an Affiliate or any third party; (v) use Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in the Product Notice and/or EMC quote; (vi) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse assemble or disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software; (vii) remove any copyright or other proprietary notices on or in any copies of Software; or (viii) violate or circumvent any technological restrictions within the Software or specified in this Master Agreement, such as via software or services.
E. Software Releases. Software Releases shall be subject to the license terms applicable to Software.
F. Records and Audit. During the license term for Software and for two (2) years after its expiration or termination, Customer will maintain accurate records of its use of the Software sufficient to show compliance with the terms of this Master Agreement. During this period, EMC will have the right to audit Customer’s use of the Software to confirm compliance with the terms of this Master Agreement. That audit is subject to reasonable notice by EMC and will not unreasonably interfere with Customer’s business activities. EMC may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. Customer will reasonably cooperate with EMC and any third party auditor and will, without prejudice to other rights of EMC, address any non-compliance identified by the audit by promptly procuring additional licenses. Customer will promptly reimburse EMC for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by Customer for the period audited, or that Customer has materially failed to maintain accurate records of Software use.
G. Termination of license. EMC may terminate licenses for cause if Customer breaches the terms governing use of Software and fails to cure within thirty (30) days after receipt of EMC’s written notice thereof. Upon termination of a license, Customer shall cease all use and return or certify destruction of applicable Software (including copies) to EMC.
H. Reserved Rights. EMC reserves all rights not expressly granted to Customer and does not transfer any ownership rights in any Software.
I. Other License Terms. If a particular Product or component is provided with its own license terms (“Separate License Terms”), typically in the form of a (i) "click-to-accept" agreement included as part of the installation and/or download process, or (ii) "shrink-wrap" agreement included in the packaging for the Product, or (iii) notice indicating that by installation and/or use thereof the related license terms apply, then, in case of conflict with the terms of this Master Agreement, such Separate License Terms shall (a) prevail with regard to Products or components for which EMC is not the licensor; and (b) not prevail with regard to a Product or component for which EMC is the licensor.
5. EMC SELECT OR BROKERAGE PRODUCTS. EMC may offer to supply or license certain products or services that are made or provided by a third party supplier or manufacturer and not EMC. Some of such products or services are specifically identified as “EMC Select Products” and are listed at: http://www.emc.com/partnersalliances/programs/select.jsp. Other such third party supplier or manufacturer products may be provided by EMC on a case-by-case basis in response to a Customer request (“Brokerage Products”), and will be identified on the EMC quote using “Brokerage” or a similar descriptor. Notwithstanding any other provisions of this Master Agreement, EMC Select Products and Brokerage Products are subject to the standard license, warranty, indemnity, support and other terms of the third party supplier or manufacturer (or an applicable agreement between Customer and such supplier or manufacturer), to which Customer shall adhere. Even if support fees are invoiced through EMC, EMC Select Products and Brokerage Products are not supported by EMC and Customer must contact such third party directly for support services. Any warranty or indemnity claims against EMC in relation to EMC Select Products or Brokerage Products are expressly excluded. In no event shall EMC be liable to Customer for any damages that in any way arise out of or relate to any EMC Select Products or Brokerage Products. EMC Select Products and Brokerage Products are provided by EMC “AS IS.”
6. PRODUCT WARRANTY.
A. Equipment and Software Media. EMC warrants that (i) Equipment, and Equipment upgrades installed into Equipment, when purchased from EMC and operated with normal usage and regular recommended service; and (ii) the physical media, if any, on which software is provided by EMC, shall be free from material defects in materials and workmanship, and perform substantially in accordance with Documentation provided for Equipment or the physical media until the expiration of the warranty period. Unless otherwise noted on the Product Notice or EMC quote, the warranty coverage for the microcode, firmware or operating system software that enables Equipment to perform as described in its Documentation shall be no less than that which applies to such Equipment. To the extent specified in the Product Notice, Support Services in the form of the Support Option noted on the Product Notice are included free of charge during the Equipment warranty period. In some cases, a Support Option upgrade during the Equipment warranty period may be available by separate purchase.
B. Equipment and Software Media Warranty Duration. Unless otherwise stated on the EMC quote, the warranty period from EMC for Products shall be as set forth at the Product Notice. Equipment warranty commences upon Delivery. Equipment upgrades are warranted in the same manner as the Equipment in which the upgrades are installed from Delivery of the upgrade until the end of the warranty period for the Equipment into which the upgrades are installed. The warranty for physical media for Software provided by EMC, if any, is ninety (90) days and commences upon Delivery.
C. Equipment and Software Media Warranty Remedies. EMC’s entire liability and Customer’s exclusive remedies under the Equipment and physical media for Software warranties described in this Section 6 shall be for EMC, at its option, to remedy the non-compliance or to replace the affected Product, and if EMC is unable to effect such within a reasonable time, then EMC shall refund the amount paid by Customer for the affected Product as depreciated on a straight line basis over a five (5) year period, upon return of such Product to EMC. All replaced Products or portions thereof shall be returned to and become the property of EMC. If such replacement is not so returned, Customer shall pay EMC’s then current spare parts price therefore. EMC shall have no liability hereunder after expiration of the applicable warranty period.
D. Software Warranty, Duration and Remedy. EMC warrants to Customer that the Software will, for a period of ninety (90) days following Delivery or notice of availability for electronic download (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software: (i) has been properly installed and used at all times in accordance with the applicable Documentation; and (ii) has not been modified or added to by persons other than EMC or its authorized representative. EMC will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to EMC by Customer in writing during the Warranty Period. If EMC determines that it is unable to correct the error or replace the Software, EMC will refund to Customer the amount paid by Customer for that Software, in which case the license for that Software will terminate.
E. Exclusions. Warranty does not cover problems that arise from (i) accident or neglect by Customer or any third party; (ii) any third party items or services with which the Product is used or other causes beyond EMC’s control; (iii) installation, operation or use not in accordance with EMC’s instructions or the applicable Documentation; (iv) use in an environment, in a manner or for a purpose for which the Product was not designed; (v) modification, alteration or repair by anyone other than EMC or its authorized representatives; or (vi) in case of Equipment only, causes not attributable to normal wear and tear. EMC has no obligation whatsoever for Software installed or used beyond the licensed use, for Equipment which was moved from the Installation Site without EMC’s consent or whose original identification marks have been altered or removed.
F. Disclaimer of Warranty. OTHER THAN THE WARRANTIES SET FORTH IN THIS MASTER AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMC AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS MASTER AGREEMENT, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. EMC AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET CUSTOMER’S REQUIREMENTS.
7. INDEMNITY. EMC shall (i) at its own expense, defend Customer against any third party claim that a Product as provided by EMC to Customer infringes a patent or copyright enforceable in a country that is a signatory to the Berne Convention; and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction to the extent that such are the result of the third party claim, or pay the amounts stated in a written settlement negotiated and approved by EMC. The foregoing obligations are subject to the following: Customer (a) notifies EMC promptly in writing of such claim; (b) grants EMC sole control over the defense and settlement thereof; (c) reasonably cooperates in response to an EMC request for assistance and information; and (d) is not in material breach of this Master Agreement. Should any such Product become, or in EMC’s opinion be likely to become, the subject of such a claim, EMC may, at its option and expense, (1) procure for Customer the right to make continued use thereof; (2) replace or modify such so that it becomes non-infringing; or (3) if, in EMC’s opinion, neither of the foregoing are reasonably available, EMC shall notify Customer to return the Product and, upon receipt thereof, EMC shall refund the price paid by Customer, less straight-line depreciation based on a five (5) year useful life for Products. EMC shall have no obligation or liability to the extent that the alleged infringement arises out of or relates to: (A) combination, operation or use of a Product as provided by EMC to Customer with any products, services, items, or technology that (i) were not provided by EMC to Customer; or (ii) were provided by EMC to Customer but were obtained by EMC from a third party (such as an EMC Select Product, Brokerage Product or any other technology, item or service not developed, performed or manufactured by EMC), except if provided by EMC to Customer as an embedded component of an EMC Product; (B) use for a purpose or in a manner for which the Product was not designed or use after EMC notifies Customer to cease such use due to a possible or pending claim of infringement; (C) any modification made by any person other than EMC or its authorized representatives; (D) any modifications to a Product made by EMC pursuant to instructions, designs, specifications or any other information provided to EMC by or on behalf of Customer; (E) use of any version of a Product when an upgrade or newer iteration of the Product made available by EMC would have avoided the infringement; (F) services provided by Customer and/or any revenue Customer derives therefrom; or (G) any data or information which Customer or a third party records on or utilizes in connection with Products. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND EMC’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS PERTAINING TO PRODUCTS.
8. LIMITATION OF LIABILITY.
A. Limitation on Direct Damages. EXCEPT WITH RESPECT TO CLAIMS PURSUANT TO SECTION 7 ABOVE, EMC’S TOTAL LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF PRODUCT OR SERVICE PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY EMC’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED (i) US$1,000,000, FOR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; AND (ii) THE PRICE PAID TO EMC FOR THE SPECIFIC SERVICE (CALCULATED ON AN ANNUAL BASIS, WHEN APPLICABLE) OR PRODUCT FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE NOT IDENTIFIED IN (i) ABOVE OR OTHERWISE EXCLUDED HEREUNDER.
B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF EMC’S INTELLECTUAL PROPERTY RIGHTS, NEITHER CUSTOMER NOR EMC SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
C. Regular Back-ups. As part of its obligation to mitigate damages, Customer shall take reasonable data back-up measures. In particular, Customer shall provide for a daily back-up process and back-up the relevant data before EMC performs any remedial, upgrade or other works on Customer’s production systems. To the extent EMC’s liability for loss of data is not anyway excluded under this Master Agreement, EMC shall in case of data losses only be liable for the typical effort to recover the data which would have accrued if Customer had appropriately backed up its data.
D. Limitation Period. All claims must be made within (i) the time period specified by applicable law; or (ii) eighteen (18) months after the cause of action accrues if (a) no such period is specified at law; or (b) the applicable law allows the parties to agree to a shorter period than that specified therein.
E. Suppliers. The foregoing limitations shall also apply in favor of EMC’s Suppliers.
11. CONFIDENTIALITY. “Confidential Information” means any information that is marked “confidential” or “proprietary” or any other similar term or in relation to which its confidentiality should by its nature be inferred or, if disclosed orally, is identified as being confidential at the time of disclosure and, within two (2) weeks thereafter, is summarized, appropriately labeled and provided in tangible form. Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (ii) a matter of public knowledge; (iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information. Each party shall (a) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Master Agreement or any purchase order hereunder; and (b) protect from disclosure to any third parties, by use of a standard of care equivalent to that as used by recipient to protect its own information of a similar nature and importance, and, no less than the use of reasonable care, any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until three (3) years thereafter, except with respect to (1) Customer data to which EMC may have access in connection with the provision of Services, which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies; and (2) Confidential Information that constitutes, contains or reveals, in whole or in part, EMC proprietary rights, which shall not be disclosed by the receiving party at any time. Notwithstanding the foregoing, the receiving party may disclose Confidential Information (A) to its Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing; and (B) to the extent required by law (provided the receiving party has given the disclosing party prompt notice).
12. TRADE COMPLIANCE. All content, Services and the technology included therein (collectively the “Materials”) provided under this Master Agreement are subject to governmental restrictions on exports and imports including without limitation (i) exports from the U.S and the European Union as well as re-export from third countries in the form received; (ii) exports from other countries in which the Materials may be produced or located; (iii) disclosures of technology to non-U.S persons; (iv) exports from other countries of the same or products derivative of Materials; and (v) the importation and/or use the Materials outside of the U.S. or other countries (collectively, “Trade Laws”). Customer must comply with all Trade Laws. Diversion contrary to U.S. law or other Trade Laws is expressly prohibited. In addition, Customer shall not send or deliver to EMC any data controlled by the International Traffic in Arms (“ITAR”), and shall not request Materials or Service from EMC where an ITAR license is required in order for EMC to provide such Materials or Service, unless the EMC Global Trade Compliance Group Office has signed a specific agreement consenting to provide ITAR controlled Materials or Service to Customer. Customer represents and warrants that it is not (a) listed on any of the lists of restricted parties found at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern; (b) located in any country subject to embargo by the U.S. (identified as an E:1 country in Supplement 1 to Part 740 of the United States Export Administration Regulations (“EAR”), as shown here and updated from time to time: http://www.ecfr.gov/cgi-bin/text-idx?SID=7f51b38428b0614519eea4b4fdc8640e&node=15:184.108.40.206.220.127.116.11.28&rgn=div9; or (c) engaged in the proliferation of weapons of mass destruction (i.e., nuclear, chemical or biological weapons or missiles). Customer will not participate or ask EMC to participate in any illegal boycott.
13. TERM AND TERMINATION.
A. Term of Master Agreement. The term of the Master Agreement begins on the Effective Date and continues until the Master Agreement is terminated in accordance with this Section 13 (“Term”).
B. Termination of Master Agreement. The Master Agreement may be terminated by either party at any time, effective sixty (60) days after delivery of written notice to the other party. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including provisions relating to payment of outstanding fees, records and audit, confidentiality and liability.
A. References. EMC may identify Customer as a user of EMC’s Products and/or Services. Each party shall not, and shall not authorize or assist another to, originate, produce, issue or release any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to this Master Agreement, without the prior written approval of the other, which approval shall not be unreasonably withheld.
B. Notices. Any notices hereunder shall be in writing.
C. Entire Agreement. This Master Agreement and each purchase order (i) comprise the complete statement of the agreement of the parties with regard to the subject matter thereof; and (ii) may be modified only in a writing with evidence of acceptance by both parties. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Master Agreement and/or EMC quote, shall be null and void and of no legal force or effect, even if EMC does not expressly object to such terms when accepting a purchase order or similar document provided by Customer; however, terms in such document deviating from an EMC quote do become binding upon the parties when such deviating terms are expressly accepted by EMC in writing in an order acknowledgement or similar document.
D. Force Majeure. Except for payment of fees, neither party will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
E. Assignment. Customer will not assign this Master Agreement or a purchase order or any right or obligation herein or delegate any performance without EMC’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by Customer will be void. EMC may use its Affiliates or other sufficiently qualified subcontractors to provide Services to Customer, provided that EMC remains responsible to Customer for the Services’ performance.
F. Governing Law. This Master Agreement is governed by the laws of the Province of Ontario. To the extent permitted by law, the courts located in the Province of Ontario shall be exclusively competent to rule on disputes arising out of or in connection with this Master Agreement and all purchase orders. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
G. Waiver. Failure to enforce a provision of this Master Agreement will not constitute a waiver.
H. Independent Contractors. The parties shall act as independent contractors for all purposes under this Master Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party shall have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party.
I. Severability. If any part of this Master Agreement, purchase order, quote or Statement of Work is held unenforceable, the validity of all remaining parts will not be affected.
J. Exhibits. The following Exhibits form part of this Master Agreement, and in the event of a conflict between an Exhibit and the main terms of this Master Agreement, the terms of the Exhibit shall prevail.
Attachment 1 – Support Services Exhibit
Attachment 2 – Professional Services Exhibit
Attachment 3 – Pivotal™ Products Exhibit
K. Language. The parties have required that this Master Agreement be drawn up in English and have also agreed that all notices or other documents required by or contemplated in this Master Agreement be written in English. Les parties ont requis que cette convention soit rédigée en anglais et ont également convenu que tout avis ou autre document exigé aux termes des présentes ou découlant de l'une quelconque de ses dispositions sera préparé en Anglais.