These Master Services Terms and Conditions (“Terms” or this “Agreement”) govern the purchase of services by the client (“you”, “your”, “Client” and terms of similar meaning) from APII INC. (“we”, “us”, “Provider” and terms of similar meaning) made pursuant to an accepted, submitted or executed order form or service agreement that references these Terms (“Service Agreement”).

The Service Agreement is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Service Agreement expressly conflict with these Terms, the conflicting provisions of the Service Agreement control and shall take precedence over the conflicting provisions of these Terms, but only where the Service Agreement states that it is intending to supersede these Terms for that provision.

ARTICLE 1
DEFINITIONS

1.1            APPLICABLE LAW means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services or Deliverables.

1.2            CONFIDENTIAL INFORMATION has the meaning set out in Section 5.1.

1.3            CLIENT MATERIALS means: (a) all materials, including all Client logos, product and service descriptions, images, audio or video recordings, documentation, reports, specifications, technical information, and technologies, recorded in any form and on any media, that may be proprietary to the Client and provided to the Provider to enable the Provider to perform the Services (as defined below); and (b) all materials described in a Service Agreement as remaining the property of the Client.

1.4            DELIVERABLES means all Work Product (as defined below) that the Provider is required under any Service Agreement to deliver to the Client as part of the Services.

1.5            FEES means the fees to be paid by the Client pursuant to these Terms and the Service Agreement.

1.6            INTELLECTUAL PROPERTY RIGHTS means registered or unregistered patents, trade secrets, rights to inventions, copyright and related rights, trademarks, trade dress, service marks, know-how, knowledge, trade or business names, domain names, goodwill, software, algorithms, user interfaces, techniques, methods, moral rights, the right to sue for passing off, rights in designs, database rights (including rights to extraction), rights to use and protect the confidentiality of Confidential Information, and all other intellectual property rights recognized under Applicable Law, including the right to sue in respect thereof, pending or eligible for renewals or extensions for, and such rights and all similar or equivalent rights or forms of protection existing now or will exist in any part of the world.

1.7            PARTY means a party to these Terms.

1.8            SERVICES means the services to be provided by the Provider to the Client as described in these Terms or any Service Agreement and any additional services authorized by the Client, which the Provider agrees to perform or is required to perform hereunder.

1.9            PROVIDER TOOLS means software,  utility routines, generalized interfaces, algorithms, code, ideas, tools, methodologies, computer system designs, web applications, documentation, inventions (whether or not patentable or reduced to practice), developments or like materials, data, processes or methods that are of general purpose functionality that the Provider makes, conceives or devises in the course of the Services performed under any Schedule and that the Provider wishes to retain ownership of and any Intellectual Property Rights. Provider Tools shall be described in the Service Agreement to the Client and may be amended by the Provider from time to time.

1.10          WORK PRODUCT means all plans, reports, media content (including but not limited to audio, video, pictures, text), designs, generated content, presentations, software (including source code), computer system designs, websites, web applications, documentation, developments or like materials, data, processes, methods, improvements or enhancements that the Provider makes, conceives, or devises, either solely or jointly with the Client, in the course of Services performed under the Service Agreement. Work Product specifically excludes any Prior Intellectual Property, Provider Tools, pre-existing software, Open-Source Software or Third-Party Materials (including, but not limited to Required Programs that may be implemented in the Deliverables).

ARTICLE 2
SCOPE OF AGREEMENT

2.1            Change Request. If the Client wishes at any time to request a change in the Services under a particular Service Agreement, or if the Client requests the Provider to provide professional services outside the scope of the Services that are specifically specified in the Service Agreement, the Client will, unless otherwise specified in the Service Agreement, prepare a written change request. The Provider will evaluate and respond to any change request promptly and will advise the Client in writing of any impact on the cost and delivery schedule for any Services as a result of the proposed change. Upon written confirmation from the Client, the Provider will proceed with the change, at the price and upon the terms of which the Client was advised, and the Service Agreement shall be deemed to have been amended accordingly. The Provider reserves the right to charge the Client, at its standard time and materials rates, outlined in the applicable Service Agreement or another agreement or schedule, for any time spent evaluating and responding to a change request that the Client elects not to implement.

2.2            Effective Date. These Terms and the Service Agreement are effective from the effective date identified in the Service Agreement (“Effective Date”) and continues in full force and effect until terminated in accordance with the provisions of the Service Agreement and these Terms.

ARTICLE 3
SERVICES

3.1            Services. The Provider shall in all material respects perform the Services in accordance with these Terms and the Service Agreement, and in a timely, diligent and professional manner.

3.2            Work Schedule. Unless they are expressly described as firm deadlines, in which case the Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in a Service Agreement represent estimates that the Provider shall use its reasonable commercial efforts to achieve. The timely and effective completion of the Services requires the successful co-operation of the Parties and the timely performance by each of them of their obligations hereunder, including delivery by the Client to the Provider of information and materials and the timely performance by the Client of the various activities, in each case either expressly or implicitly described in a Service Agreement. The achievement of any schedules, deadlines or timeframes set forth in any Service Agreement is dependent upon such delivery and performance by the Client, and the Provider shall not be liable for any delay or cost or expense caused as a result thereof.

3.3            Client Materials. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use (during the term of the applicable Service Agreement) any Client Materials provided to the Provider solely to perform Services pursuant to the Service Agreement. The Parties agree that this grant of rights is expressly made subject to the Provider’s confidentiality obligations set forth herein and any other restrictions specified in the applicable Service Agreement.

3.4            Acceptance. Where a Service Agreement contemplates the development of Deliverables, the Client shall have a period to review and accept the completed Deliverables (such period to be as specified in the applicable Service Agreement, or a reasonable period if no period is specified) and the Provider shall have a period to remedy any deficiencies identified by the Client (such period to be as specified in the applicable Service Agreement, or a reasonable period if no period is specified). The Client shall provide the Provider prompt notice of any deficiencies identified by the Client (within such period as specified in the applicable Service Agreement, or a reasonable period if no period is specified). If the Client does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the Deliverables.

3.5            Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and Deliverables and the use of the Services and Deliverables by the Client’s directors, officers, employees, contractors, representatives and other agents will (a) be consistent with these Terms and the Service Agreement and any licenses provided; and (b) comply with all Applicable Law.

3.6            Client Responsibilities and Acknowledgements. In addition to any specific responsibilities set out in these Terms and the Service Agreement and/or any schedule, the Client shall be responsible for the following:

(a)    If applicable, the Client shall ensure that sufficient Client representatives are present as the Provider may require in connection with the performance of the Services;

(b)    The Client shall be liable for the acts and omissions of any of its directors, officers, employees, contractors, representatives and/or agents as if such act or omission were an act or omission of the Client; and

(c)    The Client acknowledges that delivery of the Services and/or operation of the Deliverables may require that the Client license from the Provider or obtain and install certain additional services, software programs or add-ons (“Required Programs”). Unless indicated in the Service Agreement, the Client shall be responsible, at its own expense, to acquire, maintain, upgrade, and replace as necessary, the Required Programs. The Client further acknowledges that the operation of any Deliverables and/or the Required Programs may require the Client’s hardware to be of sufficient quality, condition and repair, and the Client shall be responsible, at its sole expense, to maintain its hardware in the appropriate quality, condition and repair as necessary to operate the Deliverables and/or the Required Programs.

ARTICLE 4
FEES AND INVOICING

4.1            Invoices and Fees. The Provider shall invoice the Client for the Services to be provided under a Service Agreement in accordance with the applicable Service Agreement, and the Client shall pay such invoices within thirty (30) days of receipt (or such other time as is specified in a Service Agreement). For certain Services, the Client agrees to prepay the Provider in accordance with the terms of a Service Agreement. Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 1.5% per month on overdue amounts and interest thereon.

4.2            Rate Increases. The Parties agree that, after the initial thirty (30) days following the Effective Date, for Services provided on a time and materials basis, the Provider may increase its standard fee rates specified in the applicable Services Agreement provided that: (a) Provider notifies Customer in writing by email or another form of electronic communication, of such increases; and (b) such increases occur no more frequently than once per contract year of the Term.

4.3            Taxes. The Client is responsible for all sales, use, consumption, value added, goods and services and similar taxes which are based upon its acquisition or use of the Services and Deliverables to be provided under these Terms and the Service Agreement.

ARTICLE 5
CONFIDENTIALITY

5.1            Definition. As used in these Terms, “Confidential Information” of a Party means secret or confidential information which is not generally known to the public and may include, but is not limited to: (a) Work Product, computer software, code, inventions, algorithms, know-how, ideas, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures, information respecting the customers or clients, of such Party or of its representatives; (b) information which due to its nature, or the circumstances surrounding its communication, would be reasonably interpreted as constituting confidential information, including the terms and conditions of these Terms; and/or (c) any other information of any nature, and in any form, received from or belonging to such Party which is marked or identified as confidential; (d) proprietary or confidential information of a third party or supplied in confidence by a third party, including that of third party suppliers, in the possession of such Party. Confidential Information does not include any of the foregoing items to the extent that the same have become publicly known or made generally available through no wrongful act of the disclosing party, or the Aggregate/Anonymous Data (as defined below).

5.2            Non-disclosure. Each Party shall hold in confidence and keep confidential all Confidential Information and shall not, directly or indirectly, in any manner and for any purpose whatsoever, use, copy, recreate, reproduce or allow to be used, copied, recreated or reproduced for the benefit of, or disclose, transmit, transfer or communicate or allow to be disclosed, transmitted, transferred or communicated to, any person any Confidential Information except as required, and only to the extent reasonably necessary for the performance of and as related to the Services and Deliverables and each Party agrees to disclose such Confidential Information only to those of its own employees, representatives, agents, contractors and/or those who have a need to know the information in connection therewith, and who are under an enforceable legal obligation to keep same confidential and subject to comparable restrictions as apply to the receiving Party under these Terms and the Service Agreement, and shall take appropriate action to ensure their compliance with such obligation. The foregoing prohibitions shall not apply to any Confidential Information if: (a) such Confidential Information is available to the public or in the   domain at the time of such disclosure or use, without breach of these Terms and/or the Service Agreement; (b) disclosure is required to be made by any present or future law, regulation, governmental body or authority or by court order; or (c) disclosure is made to a court which is determining the rights of the Parties under these Terms and the Service Agreement.

5.3            Aggregate/Anonymous Data. The Client hereby agrees that the Provider shall have the right to aggregate and/or anonymize certain Client data together with the anonymized and/or aggregated data of the Provider’s other clients. Such aggregated and/or anonymized data (“Aggregate/Anonymous Data”) shall not be considered Confidential Information for the purposes of Section 5.1. The Client further agrees that the Provider may use such Aggregate/Anonymous Data for any business purpose during and after the Term (including but not limited to developing and improving the Provider’s products and services and to distribute reports and other materials).

5.4            Equitable Relief. It is hereby agreed that upon any breach, or threatened breach, by the other Party relating to the Confidential Information, the non-breaching Party wishing to protect its Confidential Information will be entitled to seek and obtain equitable relief, including injunctive relief and specific performance, or any other relief as may be granted by any court, without the necessity of proving actual damages or posting of security or a bond.

5.5            Indemnity. Each Party agrees to indemnify and hold the other Party harmless from and against all loss or damage of any kind and nature suffered by the other Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Article.

5.6            Publicity and Promotion. Upon execution of these Terms, the Provider shall be permitted to disclose that the Client is a client of the Provider, but the specific terms of these Terms shall remain confidential. The Provider shall be entitled to use the Client’s business name and logo on the Provider’s website or in future presentations to identify the Client as a client of the Provider.

ARTICLE 6
OWNERSHIP, PRE-EXISTING WORKS AND THIRD-PARTY MATERIALS

6.1            Provider Ownership of Pre-Existing Software and Provider Tools. Unless otherwise provided in the applicable Service Agreement, (a) Provider or its licensors, as applicable, shall own all Prior Intellectual Property (as defined in Section 6.4 below) and Provider Tools and all Intellectual Property Rights therein; and (b) Should such Prior Intellectual Property form an embedded part of the Work Product, Provider shall license the Prior Intellectual Property and Provider Tools to Client in accordance with Section 6.2 below. Client shall execute and deliver such instruments and take such other steps as may be requested by Provider from time to time in order to give effect to the provisions of this Section.

6.2            License to Pre-Existing Software and Provider Tools. Subject to Sections 6.3 and to the provisions of and to any further limitations or restrictions contained in the applicable Schedule, and to payment by Client for the respective Services, Provider hereby grants to Customer a non-exclusive, non-sublicensable, royalty-free license to use the pre-existing software and Provider Tools (that are owned or licensed by the Provider) for the purpose specified in the Schedule (and if no purpose is specified, then for any purpose).

6.3            Limitations and License Restrictions. Neither Party shall perform any act, or permit any act to be performed by a third party, that would harm, or in any way negatively affect or diminish the other Party’s Intellectual Property Rights or other proprietary rights in or to the Deliverables, pre-existing software or Provider Tools (as the case may be) or any other rights in law or equity of the Provider.

6.4            Client Ownership of Work Product and Intellectual Property. Unless otherwise stated herein and/or provided in the applicable Service Agreement, upon payment of all Fees, the Client shall own all Work Product and all right, title and interest, including, without limitation, all copyright, patent rights, trade secret rights, trademarks and any other proprietary right or interest, therein. Notwithstanding the foregoing, the Client acknowledges that all or part of the Work Product may contain prior intellectual property of the Provider (“Prior Intellectual Property”) and/or Provider Tools that is used or useable in connection with the providing of services and/or products by the Provider to other customers or clients. Accordingly, the Client agrees that the Provider may use all such Prior Intellectual Property and/or Provider Tools in connection with the providing of services and products to other customers or clients.

6.5            Open-Source Software. The Work Product or Deliverables may include or operate in conjunction with certain open-source components that are subject to open-source licenses (“Open-Source Software”). The Open-Source Software is not subject to the terms and conditions of Sections 6.2 and 6.4. Instead, each item of Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Any Open-Source Software incorporated into the Work Product shall be licensed under a commercially permissive licensing regime. On written request to the Provider, the Provider shall provide the Client with a list of all Open-Source Software included in the Work Product or Deliverables.

6.6            Pre-Existing or Third-Party Material or Software.  If applicable, the Service Agreement shall include (a) a sufficient description of any known pre-existing or third party material, software or intellectual property (the “Third-Party Material”) that is to be included in the Work Product or Deliverables; (b) any applicable license terms to such Third-Party Material or the website specifying where the Client can access such documentation and license agreements; and (c) the responsibility for payment of such licenses as between the Parties. All Third-party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement and the Client shall comply with all such third-party license agreements. The Provider shall promptly advise the Client of an intent or desire to include any additional Third-Party Material that was not known prior to the execution of such Service Agreement.

ARTICLE 7
 DISCLAIMER OF WARRANTIES AND DAMAGES, LIMITATION OF LIABILITY AND INDEMNITY

7.1            Disclaimer. The Provider expressly disclaims all warranties except for those expressly provided under the Services Agreement, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Provider does not represent or warrant that the Services or any Deliverables will be accurate, complete, reliable, current or error-free, and expressly disclaims any warranty or representation as to the accuracy or proprietary character of the Services or any Deliverable. For greater certainty, except as described herein, the Services and any Deliverables are provided on an “as is” basis. All Third-Party Material and Open-Source Software are provided “as is” and any representation or warranty of or concerning any Third-Party Material and Open-Source Software is strictly between the Client and the third-party owner or distributor of the Third-Party Materials and Open-Source Software.

7.2            No Indirect, Etc. Damages. Under no circumstances shall the Provider be liable to the Client for any claim for (a) indirect, special or consequential damages; (b) compensation for loss of profits, anticipated revenue, savings or goodwill, or other economic loss of the Client; (c) exemplary, aggravated or punitive damages howsoever incurred; (d) contribution or set-off in respect of any claims against the Client; (e) any damages whatsoever relating to third party products or services, including without limitation, Required Programs, or the Client Materials; (f) any damages whatsoever relating to interruption, delays, errors or omissions and/or (g) any loss or disclosure of data or funds contained in, dispensed by or associated with any Deliverable; in each case under any theory of law or equity, arising out of or in any way related to these Terms, or Deliverables or any Services, even if advised of the possibility thereof.

7.3            Limitation of Aggregate Liability. Except as otherwise specifically provided under these Terms, the Provider’s liability to the Client for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from these Terms shall not exceed an amount equal to the Fees paid by the Client for each Service Agreement in the twelve (12) months prior to the claim being made.

7.4            Limitations Reasonable. The Client agrees that the limitations of liability set out in this Article are fair and reasonable in the commercial circumstances of these Terms and that the Provider would not have entered into these Terms but for the Client’s agreement to limit the Provider’s liability in the manner, and to the extent, provided for herein. This Article shall apply even in the event of a breach of condition, a breach of an essential or fundamental term, or an essential or fundamental breach of these Terms.

7.5            Intellectual Property Indemnity:

(a)  Subject to the limitations and disclaimers set forth in these Terms, the Provider shall indemnify the Client against any direct damages and reasonable legal fees and expenses arising from any third-party claim that has been adjudicated by a court and held to be valid, following the exhaustion of all appeals, that any Deliverables infringe any registered U.S. or Canadian patent, or U.S. or Canadian copyright, provided that (a) the Client notifies the Provider in writing within ten (10) days of becoming aware of a claim; (b) the Client gives Provider the right to assume sole control over the defense, settlement or compromise of any such claim; and (c) the Client provides the Provider with the information, assistance and authority to enable the Provider to perform its obligations under this Section and co-operates fully in the Provider’s defense or settlement of such claim.

(b)  Exceptions: The Provider will have no indemnity obligation towards the Client if a claim described in Section 7.5(a) above, resulted from (i) specific instructions provided by the Client regarding the design, architecture or functionality of the Deliverables, (ii) a modification of the Deliverables not provided by the Provider; (iii) the failure by the Client to promptly install an upgrade or any enhancement made available by Provider that would have eliminated the actual or alleged infringement; (iv) the failure by the Client to use the latest version of the Deliverables or any component of the latest version of the Deliverables where the use of the latest version would eliminate the actual or alleged infringement; or (v) the combination by the Client of the Deliverables with other items (including Client customizations) not provided by the Provider, but only if the claim would not have arisen from use of the Deliverables alone.

(c)  Replacement, etc.: Should the use of any Deliverable be enjoined, or if in Provider’s opinion any Deliverable may become the subject of a suit or action for infringement, the Provider may (i) obtain, at no expense to the Client, the right to continue to use such Deliverable; or (ii) at no expense to the Client, provide the Client promptly with a substitute, modified or replacement Deliverable that is functionally equivalent to such Deliverable and with comparable or better performance and quality characteristics; or (iii) terminate the applicable license(s) and refund to the Client any amounts paid by the Client for use of the applicable intellectual property, such amounts to be determined in the sole discretion of the Provider.

(d)  Sole Liability: This Section states the Provider’s sole liability with respect to claims of infringement of third-party Intellectual Property Rights of any kind.

(e)  Indemnity by Client for Client Materials and Instructions: The Client shall indemnify the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including reasonable legal costs, that the Provider may incur as a result of or in connection with (a) any valid claim that the Client’s use of any Client Materials infringes the Intellectual Property Rights of any third party; (b) any claim or suit made by any customer of the Client, other than to the extent that such claim or suit relates to the acts or omissions of the Provider; (c) any claim that the Deliverables infringe the Intellectual Property Rights of a third party that results from specific instructions provided by the Client regarding the design, architecture or functionality of the Deliverables; or (d) any breach of the Client’s obligations under this Agreement.

ARTICLE 8
TERMINATION

8.1            Insolvency. Subject to the terms of the Service Agreement, either Party may immediately upon written notice terminate the Service Agreement and these Terms in the event the other Party (a) suspends or ceases conducting business in the normal course; (b) becomes insolvent; (c) makes a general assignment for the benefit of creditors; (d) suffers or permits the appointment of a receiver, receiver and manager, or interim receiver, for its business or assets; (e) avails itself of, or becomes subject to, any proceedings under any other statute of any federal government, province or state relating to bankruptcy, insolvency, reorganization, moratorium, arrangement of debt or the protection of rights of creditors; or (f) makes any proposal, arrangement or compromise with its creditors under applicable bankruptcy or insolvency legislation.

8.2            Breach. Subject to the terms of the Service Agreement, either Party may immediately upon written notice terminate the Service Agreement in the event the other Party fails in any material respect to perform its obligations under the Service Agreement or these Terms and the failure continues for a period of ten (10) days after the other Party receives written notice of the failure. If the breach is corrected within the applicable notice period, the Service Agreement and these Terms shall continue in full force and effect, without limitation of any right to damages resulting from the breach.

8.3            Termination for Convenience. Subject to a Service Agreement, either Party may terminate the Service Agreement and these Terms for any reason by giving at least the requisite amount of prior written notice to the other Party provided in the Services Agreement, if applicable.

8.4             Payment Upon Termination. Upon termination of the Service Agreement and/or the Terms for any reason, the Provider reserves the right to charge the early termination fees provided in the Service Agreement, if applicable, and invoice the Client for such amounts due and owing as reasonably determined in the sole discretion of the Provider. The Provider shall not deliver any in-process or completed Deliverables in its possession until the entirety of the Fees owing upon termination are paid. In addition, each Party shall promptly deliver to the other all papers, databases, documents, software programs, and other tangible items (including all copies) constituting the other Party’s Confidential Information in its possession or under its control, or on request destroy such materials and certify that it has done so.

ARTICLE 9
GENERAL

9.1            Non-Exclusivity. The Provider shall provide the Services to the Client on a non-exclusive basis and shall be free to provide its services to third parties during the term of these Terms and the Service Agreement.

9.2            Force Majeure. Notwithstanding any other provision contained in these Terms or the Service Agreement, neither party shall be liable to the other for delays in the performance of or completion of the Services or delivery of the Deliverables under these Terms or the Service Agreement (except for payment obligations) if such delay is caused by strikes, earthquakes, riots, wars, government regulations, acts of God, fire, flood, pandemics, epidemics, or other similar causes beyond its control.

9.3            Assignment. The Client may not assign or transfer its rights, duties or obligations under these Terms or the Service Agreement, in whole or in part, to any person or entity, without the prior written consent of the Provider, which consent shall not be unreasonably withheld. Any attempted assignment in contravention of this Article shall be null and void. The Provider may subcontract any Services to be performed hereunder without the consent of the Client in each instance, in which case the Provider will: (a) be responsible and liable for the acts and omissions of each subcontractor in the scope of its performing any Services to the same extent as if such acts or omissions were made by the Provider or its employees; and (b) be responsible for all fees and expenses payable to any subcontractor.

9.4            Notices. Notices under these Terms shall be in writing, addressed to the party at its last provided address, and shall be deemed given when delivered personally, or by email (with confirmation of receipt) or conventional mail (registered or certified, postage prepaid with return receipt requested).

9.5            Waiver. No term or provision of these Terms or the Service Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the Party claiming to have it waived or consented. Any consent by any Party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.

9.6            Governing Law. This Agreement and the Service Agreement is governed by and construed in accordance with the applicable laws of the Province of Ontario and the federal laws applicable therein. The Parties irrevocably and unconditionally consent, submit and attorn to the non-exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals from them for the purpose of any action or proceeding brought by either of them in connection with or arising out of the Service Agreement and these Terms.

9.7            Entire Agreement. The Service Agreement and these Terms (including any agreement and schedule incorporated by reference) constitutes the entire agreement between the Parties with respect to the subject matter of these Terms and the Service Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever, whether oral or written, unless they are expressly incorporated by additional reference in the Terms or the Service Agreement.

9.8            Amendments. The Provider reserves the right to change or modify any of the terms and conditions contained in these Terms and the Provider Tools, at any time and in its sole discretion. If the Provider does so, the Provider will notify the Client at the e-mail address provided by the Client under its applicable Service Agreement. Unless otherwise specified, any changes or modifications will be effective 60 (sixty) days following such notice from the Provider to Client, and the Client’s continued use of the Services after such time will constitute the Client’s acceptance of such changes or modifications. These Terms will always show the ‘last updated’ date at the top. If the Client does not agree to any amended Terms, the Client shall promptly notify the Provider and, if such amended terms are not acceptable to the Client, the Client may terminate these Terms and the Service Agreement pursuant to these Terms and the Service Agreement. No other modification, amendment, supplement to or waiver of these Terms or the Service Agreement, or any of their provisions shall be binding upon the Parties hereto unless made in writing and duly signed by both Parties. If any consents of a Party are required pursuant to the Service Agreement or these Terms, such consents shall not be unreasonably withheld or unduly delayed.

9.9            Benefits. This Agreement and the Service Agreement are binding upon and enures to the benefit of the Parties and their respective successors and permitted assigns, if any, except that nothing contained in this provision shall be construed to permit any attempted assignment which would be unauthorized or void pursuant to any other provision of these Terms or the Service Agreement.

9.10          Survival. Any terms and conditions of these Terms or the Service Agreement which by their nature extend beyond the termination of these Terms or the Service Agreement shall survive such termination. This includes, without limitation Section 3.5 (Client Representations and Warranties), Section 3.6 (Client Responsibilities and Acknowledgements), Article 5 (Confidentiality) Article 6 (Ownership, Pre-Existing Works and Third-Party Materials)  Article 7 (Disclaimer of Warranties and Damages and Limitation Of Liability), Article 8 (Termination), Section 9.6 (Governing Law), Section 9.14 (Non-Solicitation of Personnel) and Section 9.15 (Non-Solicitation of Clients and Suppliers).

9.11          Severability. If any provision of these Terms or the Service Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provision of these Terms or the Service Agreement, and these Terms and the Service Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

9.12          Independent Contractors. Each Party’s relationship with the other Party will be that of an independent contractor. Nothing in the Service Agreement or these Terms is to be construed as designating either Party as an agent, employee, joint venture or partner of the other Party. Neither Party shall permit its personnel or agents to hold themselves out to be, or claim to be officers, directors or employees of the other Party, or make claims, demands or applications with respect to any right or privileges available to any officer, director or employee of the other Party. Neither Party shall have the authority to serve as agent for the other Party, to make any statement, representation or commitment of any kind on behalf of the other Party and neither Party shall take any action which may be binding on the other Party, unless so approved in writing by such other Party. The Parties shall at all times during the term of these Terms and the Service Agreement maintain such supervision, direction and control over its personnel and agents as is consistent with and necessary to preserve the Provider’s independent contractor status.

9.13          Additional Provisions. The Parties acknowledge that they may from time to time agree to additional rights and obligations that shall apply solely to particular Services or Deliverables, and that the Service Agreement applicable thereto may contain additional rights and obligations of the Parties.

9.14          Non-Solicitation of Personnel. Neither Party shall without the other Party’s prior written consent solicit for hire any of the other Party’s employees or contractors who are directly involved in the provision or receipt of the Services and/or Deliverables during the time such personnel are involved providing or receiving the Services and/or Deliverables and for two (2) years thereafter. 

9.15          Non-Solicitation of Clients and Suppliers. During the term of these Terms and the Service Agreement and for twelve (12) months after termination of the Service Agreement and these Terms, neither party shall, without the other Party’s prior written consent, directly or indirectly (i) request, induce or attempt to influence any supplier of goods or services of the other Party to curtail any business it transacts with such Party; (ii) request, induce or attempt to influence any customers or clients of the other Party which have done business with, or potential customers or clients which may, to the knowledge of such Party, have been in contact with, the other Party during this period, to curtail or cancel any business they may transact with such Party. This Section shall not apply to clients, customers or suppliers who both Parties are in business with as of the Effective Date of the first Service Agreement (“Existing Clients and Suppliers”). The Parties shall include any such Existing Clients and Suppliers in the first Service Agreement.

9.16          Counterparts. The Service Agreement may be executed in counterparts, each of which is deemed to be an original and all of which together are deemed to be one and the same instrument. The delivery of a facsimile or electronic copy of an executed counterpart of the Service Agreement shall be deemed to be valid execution and delivery of the Service Agreement.

9.17          Headings. Headings in these Terms and in the Service Agreement are for convenience of reference only and shall in no way affect interpretation of the Terms and/or the Service Agreement.

9.18          Language. The Parties have requested that the Service Agreement, these Terms and all documents contemplated thereby or relating thereto be drawn up in the English language. Les Parties ont requis que cette Convention ainsi que tous les documents qui y sont envisagés ou qui s’y rapportent soient rédigés en langue anglaise.

9.19          Independent Legal Advice. The Client acknowledges and declares that it has carefully considered and understands the terms of these Terms and the Service Agreement, including, but without limiting the generality of the foregoing, the restrictions on the Client after termination and that it executes the Service Agreement voluntarily and of its own free will, having had the opportunity to seek, and has not been not prevented by the Provider from seeking, independent legal advice with respect to it and that it has either received or expressly waived the same.

9.20          Questions. If you have any questions regarding these Terms, the Service Agreement, the Services or the Deliverables, please contact us here:

APII INC.

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