Master Service Agreement
- Services and Support
- Restrictions and Responsibilities
- Payment of Fees
- Warranty and Disclaimer
- Limitation of Liability
- SERVICES AND SUPPORT
1.1 In consideration of (and subject to) the payment of the fees listed on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Master Service Agreement (“Agreement”), Focus Window Cleaning will use reasonable commercial efforts to provide Customer the Services selected in the Order Form (and as more fully described in Exhibit A attached hereto and incorporated herein) and the applicable Service Level Targets (as described on Exhibit B attached hereto and incorporated herein).
1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s account (the “Account”). Focus Window Cleaning reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
- RESTRICTIONS AND RESPONSIBILITIES
2.1 The Agreement is a contract for Services.
2.2 Customer acknowledges and agrees that Focus Window Cleaning’s ability to perform its obligations under this Agreement is entirely dependent upon Customer’s prompt performance of its obligations under this Agreement, its full and timely co-operation (which Customer agrees to provide), as well as the accuracy and completeness of any Customer materials and other information and data Customer provides to Focus Window Cleaning. In the event that Focus Window Cleaning’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, or by any changes in the scope or performance of the Services pursuant to this Agreement, Focus Window Cleaning shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
2.3 Customer shall: (a) respond promptly to any reasonable requests from Focus Window Cleaning for instructions, information, scheduling inquiries or approvals required by Focus Window Cleaning to provide the Services; (b) cooperate with Focus Window Cleaning in its performance of the Services and provide prompt access to, and use of, Customer’s premises, resources, facilities, employees, materials, content, information, data, specifications, documentation and equipment as required by Focus Window Cleaning to enable Focus Window Cleaning to provide the Services, and ensure that such materials, content, information, data, specifications and documentation are complete and accurate in all respects; (c) follow any and all instructions of Focus Window Cleaning with respect to the Services; (d) not make changes to any Order Form or any information thereon without the prior written consent of Focus Window Cleaning; (e) notify Focus Window Cleaning of the presence of any tempered glass on or near Customer’s premises or facilities; (f) ensure that Customer’s premises and facilities are safe, orderly and free of any animals and debris; and (g) secure and put away any and all data, information, valuable items, personal belongings, priceless artifacts, technology, pets or equipment (the “Belongings”).
2.4 Upon approval by Customer, Focus Window Cleaning may: (a) produce and publish a case study on its website regarding Customer’s use of the Services; and (b) create self-promotional materials such as press releases, advertisements, brochures, etc.
2.5 Customer hereby represents, warrants and covenants to Focus Window Cleaning that: (a) Customer has, and shall have throughout the Term, the full right, capacity, power and authority to enter into this Agreement and to perform fully Customer’s obligations in this Agreement; (b) Customer’s performance of the terms of this Agreement does not breach, and shall not breach throughout the Term, any other agreement to which Customer is or becomes a party; and (c) as of the date hereof, there are no claims, demands, actions, causes of action, suits, arbitrations, investigations, proceedings, complaints, grievances, charges, prosecutions, assessments or reassessments, including any appeal or application for review in progress, pending, or threatened against Customer which might materially and adversely affect Customer’s ability to perform its obligations under this Agreement.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
3.2 The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required by law to be disclosed. In the performance of the Services, Focus Window Cleaning is expressly authorized to collect general user data.
- PAYMENT OF FEES
4.1 Customer will pay Focus Window Cleaning the Fees for the Services as listed on the applicable Order Form. The Fees for any renewal term shall be at Focus Window Cleaning’s then standard rates currently in effect, or if applicable, as otherwise stated in the Order Form. All Fees paid under this Agreement are nonrefundable.
4.2 If Customer believes that Focus Window Cleaning has billed Customer incorrectly, Customer must contact Focus Window Cleaning no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Focus Window Cleaning’s customer support department. Focus Window Cleaning shall respond to Customer within three (3) business days after receiving such inquires.
4.3 Focus Window Cleaning may choose to bill through an invoice, in which case full payment for invoices issued in any given month must be received by Focus Window Cleaning thirty (30) days after the sending of the invoice, or the Services may be terminated. All late payments shall bear interest at the rate of 3% per month, calculated and compounded every four (4) weeks. Payment will be credited first to late payment charges and next to any unpaid balances. Customer shall also reimburse Focus Window Cleaning for all costs incurred in collecting any late payments, including any and all legal fees. In the event Customer fails to pay any amounts when due hereunder and such failure continues for fourteen (14) days following written notice thereof, in addition to all other remedies available under this Agreement, at law or in equity (which Focus Window Cleaning does not waive by the exercise of any rights hereunder), Focus Window Cleaning is entitled to suspend the provision of any Services until receipt of all of the outstanding amounts, including the late payment charges and Focus Window Cleaning may proceed with a collections claim against Customer. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial, territorial or local governmental entity on any amounts payable by Customer hereunder, whether currently assessed or which may be assessed in the future.
4.5 Customer agrees to reimburse Focus Window Cleaning for all actual, documented expenses incurred by Focus Window Cleaning in connection with the performance of the Services.
4.6 Focus Window Cleaning is entitled to increase fees specified in any Order Form as follows: (a) in the event of changes in the scope or performance of the Services; (b) in the event Focus Window Cleaning determines, in its sole discretion, that the scope or performance of the Services in the applicable Order Form are not representative of the services required to be performed by Focus Window Cleaning; and (c) its standard fee rates for Services once per contract year of the Term by providing written notice to Customer and Customer may terminate this Agreement within fourteen (14) days of receipt of such notice by providing written notice to Focus Window Cleaning, failing which Customer is presumed to have accepted the increased fees.
5.1 Subject to earlier termination as provided below, the initial Service term is as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current Term.
5.2 In addition to any other remedies it may have, Focus Window Cleaning may also terminate this Agreement or any Order Form upon ten (10) calendar days written notice if Customer materially breaches any of the terms or conditions of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer shall pay in full all remaining Fees payable through the remainder of the Initial Service Term. If the Order Form is terminated as a result of a material breach by Customer after the Initial Service Term, Customer will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement at least 48 hours prior to the Service Date outlined in the applicable Order Form.
5.4 Termination (which includes expiration or non-renewal) of the Order Form shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form.
5.5 Upon the termination of the Agreement or Services, Customer’s right to access or use the Services shall terminate.
5.6 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination of the Agreement.
6.1 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Focus Window Cleaning against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any demand, claim, action, suit or proceeding that arises from any breach of Customer’s responsibilities, obligations, representations, warranties or covenants under this Agreement or otherwise from Customer’s use of the Services.
- WARRANTY AND DISCLAIMER
FOCUS WINDOW CLEANING DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND FOCUS WINDOW CLEANING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL (EXCEPTING ANY PAYMENT OBLIGATIONS); OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO FOCUS WINDOW CLEANING FOR THE APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF FOCUS WINDOW CLEANING SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED HEREIN. FOCUS WINDOW CLEANING SHALL NOT BE LIABLE FOR ANY DESTRUCTION OF, OR DAMAGE TO, ANY BELONGINGS, WINDOWS OR WINDOW SCREENS WHETHER RESULTING FROM THE ACTS OR OMMISSIONS OF FOCUS WINDOW CLEANING OR OTHERWISE. If applicable law limits the application of the provisions of this Section 8, a party’s liability will be limited to the maximum extent permissible.
9.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Focus Window Cleaning’s prior written consent but may be assigned by Focus Window Cleaning without restriction. Both parties agree that the Order Form and this Agreement, including all exhibits, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Focus Window Cleaning in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and legal fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The Agreement shall be governed by the laws of the Province of Alberta without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to the Agreement must be brought in the Province of Alberta and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.2 Focus Window Cleaning retains the right to perform the Services or the same or similar type of services for any person or entity during the Term and following the expiration or termination of this Agreement.
9.3 Focus Window Cleaning shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Focus Window Cleaning including acts of God, flood, fire, earthquake, explosion, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), cyber-attacks, restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of one hundred and eighty (180) days, Customer shall be entitled to give notice in writing to Focus Window Cleaning to terminate this Agreement.
9.4 If any dispute shall occur between the parties relating to the interpretation or implementation of any of the provisions of this Agreement, the parties shall make a good faith attempt to resolve such dispute via non-binding mediation. If non-binding mediation is unsuccessful, such dispute shall be resolved by arbitration. The arbitration shall be conducted by a single arbitrator. The arbitrator shall be appointed by agreement between the parties. The arbitration shall be held in the City of Calgary. The procedure to be followed shall be agreed by the parties or, in default of agreement, determined by the arbitrator. The arbitration shall proceed in accordance with the provisions of the Arbitration Act, RSA 1980, c A-43. The arbitrator shall have the power to proceed with the arbitration and to deliver his award notwithstanding the default by any party in respect of any procedural order made by the arbitrator. It is further agreed that such arbitration shall be a condition precedent to the commencement of any action at law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
9.5 By clicking accept and then confirming, Customer indicates its acceptance of all terms and conditions outlined in this Agreement.