Schedule A: Terms of Service

Eris Canada Solutions Inc.   (“Contractor”) provides certain assistance and guidance in developing proposal for Canada’s Digital Adoption Program grant in accordance with CDAP program’s procedures and guidelines for CDAP eligible businesses (the “Services"). 

In connection with the use of the Services of the User’s Corporation (the “Customer”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).

BY ACCEPTING THE TERMS OF SERVICE, EITHER BY: A) ACCEPTING THE TERMS OF SERVICE ONLINE, B) SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, OR C) USING, OR ACCESSING THE SERVICE AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING THE CONTRACTOR’S PRIVACY POLICY LOCATED AT HTTPS://ERISCANADA.COM/POLICIES/PRIVACY-POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN the CONTRACTOR AND THE CUSTOMER. 

IF, AFTER READING THE TERMS OF SERVICE, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE SERVICE. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONTRACTOR MAY AMEND THESE TERMS OF SERVICE AT ANY TIME AND THAT THE CUSTOMER’S NOTIFICATION OF THE AMENDMENT AND SUBSEQUENT CONTINUED USE OF THE SERVICES SHALL CONSTITUTE ACCEPTANCE OF THESE TERMS OF SERVICE.

IF YOU ARE AN AGENT OR EMPLOYEE OF THE CUSTOMER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE IS DULY AUTHORIZED TO ACCEPT THESE TERMS OF SERVICE ON CUSTOMER’S BEHALF AND TO BIND THE CUSTOMER, AND (II) THE CUSTOMER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THESE TERMS OF SERVICE AND PERFORM ITS OBLIGATIONS HEREUNDER.

NOW THEREFORE, the parties hereto agree as follows:

1. Definitions

   1. In these Terms of Service, the following capitalized words and expressions, and other capitalized terms defined elsewhere in these Terms of Service, shall have the meanings ascribed thereto:

      1. “Background Intellectual Property” means:

         1. any intellectual property or technology in which Contractor owned or licensed the Intellectual Property Rights prior to the Effective Date or which it develops after such date where such development is not related to the Services provided hereunder or to the deliverables delivered hereunder, and

         2. Contractor Reconfigurations.

      2. “Business Day” shall mean any day excluding Saturdays, Sundays, statutory holidays and civic holidays in the city of Toronto, Ontario.

      3. “Change” shall mean a change to any applicable Service Order that would alter the functionality or technical environment of the work to be performed or the scope of the resources, the pricing, the Services, or the schedule for the performance and completion thereof.

      4. “Change Order” has the meaning given to such term in Section 3 hereof. 

      5. “Contractor Reconfigurations” means those specific reconfigurations of Contractor’s software forming part of the Background Intellectual Property performed by Contractor.

      6. “Developments” shall have the meaning set out in Section 9.2 hereof.

      7. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing:

         1. rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask works;

         2. trademark and trade name rights and similar rights;

         3. trade secret rights;

         4. patents, designs, algorithms and other industrial property rights;

         5. all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise; and

         6. all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including without limitation rights in any of the foregoing).

      8. “Moral Rights” means any and all moral rights arising under the Copyright Act (Canada) as amended (or any successor legislation of similar force and effect) or similar legislation in other applicable jurisdictions or at common law that such individual, as author, has with respect to any copyrighted works prepared by such individual hereunder including, without limitation, the right to attribution of authorship or not to have the authors name associated with such copyrighted works, the right to restrain any distortion, mutilation or other modification of such work and the right to prohibit any use of any such work in association with a product, service, cause or institution that might be prejudicial to such individual’s honour or reputation.

      9. “Service Order” means a completed order for Services through the Contractor’s website.

2. Engagement and Services 

   1. Customer hereby engages Contractor to provide the Services as described in one or more Service Orders and Contractor hereby accepts such engagement. Customer acknowledges that the Contractor is dependent on input from the Customer on numerous aspects of the Services (the “Inputs”) and that a failure by the Customer to provide any Inputs in a timely fashion shall relieve the Contractor of any obligations in connection with such inputs. The parties further acknowledge that a failure to provide inputs may required additional time during non-working hours in order to meet specific project milestones in a timely manner (the “Overtime”).

   2. Customer shall complete a Service Order for each project or distinct provision of Services (each a “Project”).  Each Service Order shall be subject to these Terms of Service and shall become an integral part hereof upon its execution by Customer and Contractor. 

   3. Customer and Contractor shall, by mutual agreement, determine the size and composition of the team required for the delivery of Services (“Team”). Customer covenants that it will, at all times, treat the team with an appropriate level of respect and professionalism as well as provide any specific and necessary training and safety materials for the Team’s work with the customer.

   4. Contractor shall use its reasonable efforts to promote the interests and welfare of Customer.  Contractor represents and covenants that it has no agreements with or obligations to others, and during the term of these Terms of Service will not enter into any agreements or make any obligations with others in conflict with its obligations hereunder.

3. Change Orders

Customer may request Changes in the scope of the Services to be provided by Contractor under any Service Order. Substantial changes shall be effective only when authorized in a written change order (“Change Order”) executed by authorized representatives of both parties. Each Change Order shall refer to the applicable Service Order and shall state the specific Changes to be made, the amount of any related adjustment in the compensation to be paid to Contractor, and the extent of any related adjustment in the scheduled performance or completion date(s). All documentation supporting the Changes shall be attached to the Change Order. Each Change Order when properly issued shall amend, modify and supplement the applicable Service Order.

1. Term

   1. These Terms of Service shall commence for the Customer on the Effective Date and shall continue in full force and effect until terminated in accordance with the terms hereof.

   2. If at the time of expiration or termination of these Terms of Service there exists a Service Order that is not simultaneously being terminated and under which one or both of the parties have unfulfilled obligations, these Terms of Service shall continue to govern such Service Order until such Service Order is terminated or until full performance of the parties’ respective obligations under such Service Order. 

   3. The termination or expiration of these Terms of Service shall not relieve either party of its obligations incurred before the date of termination, including, without limitation, the obligations set forth in Section 5 (Fees and Payment).  

2. Fees and Payment

   1. In consideration of the Services to be provided under these Terms of Service, Customer agrees to pay Contractor a fee (the “Fee”) as provided in the Service Order. Customer acknowledges that the Fee may include additional costs for certain tools and services that must be procured by the Contractor in order to perform the Services. Customer acknowledges that the initial charge for any Overtime shall be $150 per hour, subject to periodic adjustment by the Contractor in its sole discretion.

   2. In addition to the Fee, Customer acknowledges that Contractor may provide Services that result in the Customer receives certain endowments, grants or other sources of funding (the “Grant”) for the completion of specific Projects. The Customer covenants to either:

      1. carry on such Projects with the Contractor pursuant to a Service Order; or

      2. pay an additional royalty (the “Royalty”) to the Contractor as follows:

         1. 35% of any Grant of less than or equal to $10,000;

         2. 25% of any Grant of less than or equal to $50,000 but greater than $10,000; and

         3. 15% of any Grant of greater than $50,000.

The parties acknowledge that this Royalty is in consideration for Contractor’s efforts in procuring the Grant and is not conditional on any further work by the Contractor.

1. All charges provided for in these Terms of Service are exclusive of, and Customer is responsible for, all applicable taxes, including without limitation, any withholding or value-added taxes, duties, transfers or similar charges imposed by any federal, state, provincial or local government entity for the Services provided under these Terms of Service, except for taxes based on Contractor’s income.

2. Contractor shall be reimbursed for all reasonable travel and living expenses incurred by it or its Consultants in providing the Services.

3. In the event of a failure of the Customer to pay the Contractor, Contractor reserves all rights to any legal remedy, including third party collection and filing reports with any applicable credit bureau.

Customer agrees to keep such records in respect of the provision of the Services under these Terms of Service as are customary in relation to the type of services provided hereunder and any other such records as the Customer may request from time to time.  Customer agrees to make such records available at any time for inspection by Contractor or its representatives. Customer agrees not to disclose such records to any third parties without the prior written consent of Contractor.  

These Terms of Service does not constitute and shall not be construed as constituting a partnership, joint venture or principal/agency relationship between the parties. Each party is and will at all times remain an independent contractor and is not and neither party shall represent itself to be an agent of the other.  Neither party by virtue of these Terms of Service shall have the right, power or authority to act or to create any obligations, express or implied, on behalf of the other party.

1. Confidential Information

   1. “Confidential Information” means all information and data, including, without limitation, all business, planning, performance, financial, product, trade secret, technical, sales, marketing, contractual, employee, supplier and customer information and data, disclosed orally, in writing or electronically to one party (the “Recipient”) by the other party (the “Discloser”) hereunder.  Confidential Information shall not include information which:

      1. is generally known or in the public domain at the time of disclosure;

      2. was rightfully in the Recipient’s possession before receipt from the Discloser;

      3. though originally Confidential Information, subsequently becomes a matter of public knowledge through no fault of the Recipient, as of the date of its becoming part of the public knowledge; or

      4. is rightfully received by the Recipient without obligations of confidence from a third party who is free to disclose the information.  

   2. Recipient shall maintain the confidentiality of all Confidential Information disclosed to it and shall take all necessary precautions against unauthorized disclosure of the Confidential Information.  Recipient shall not directly or indirectly disclose, allow access to, transmit or transfer any Confidential Information to any third party without the prior written consent of Discloser except as permitted herein.   Recipient shall not use or copy any Confidential Information except as may be reasonably required to perform the Services.  All copies, records, notes or reproductions, in whole or in part, shall contain notices identifying them as containing the Confidential Information of the Discloser and shall be protected from unauthorized disclosure and access.

   3. Recipient shall:

      1. use the Confidential Information only in connection with the provision of the Services; and

      2. hold all Confidential Information in confidence and provide access to such information to only those third parties who:

         1. have a need to know the information for the purpose of providing the Services;

         2. have been informed of Recipient obligations hereunder; and

         3. have entered into an agreement with the Recipient to hold such information confidential on terms similar to the confidentiality provisions of these Terms of Services.

   4. Upon the request of Discloser, and in any event upon the termination or expiration of these Terms of Service, Recipient shall immediately return to Customer all materials, including all copies in whatever form, containing any Confidential Information which are in Recipient’s possession or under its control unless that Confidential Information is being stored as part of a bona fide archival or backup process of the Recipient.

   5. Recipient acknowledges and agrees that monetary damages may not be an adequate remedy to compensate Discloser for any breach of Recipient’s obligations hereunder in respect of Confidential Information.  Accordingly Recipient agrees that, in addition to any and all other remedies available to Discloser under these Terms of Service or at law or in equity, Discloser shall be entitled to seek injunctive relief against the breach, or threatened breach of these Terms of Service, and specific performance of its obligations hereunder, without being required to prove damages, post a bond or give an undertaking.  The injunctive relief contemplated hereunder is in addition to any other legal or equitable remedies available. 

   6. Recipient represents and warrants to the Discloser that its performance during the period of engagement hereunder shall not breach any agreement or other obligation to keep confidential the proprietary information of any other third party.

2. Intellectual Property Rights

   1. Contractor agrees that all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to any materials, data, or information, including all computer programs (in source code or object code) and documentation related thereto, which have been provided by Customer to Contractor in connection with the performance of the Services (“Materials”) are owned and shall continue to be owned by Customer and/or its licensors.  Notwithstanding the foregoing, for the term of the applicable Project, Customer grants Contractor a royalty-free, personal, non-transferable, non-exclusive license to use and reproduce the Materials for the sole purpose of performing the Services.  Neither the Contractor nor its Consultants shall remove any Materials from the Customer’s premises without Customer’s prior consent.  Should Customer permit the removal of Materials from its premises, Customer shall have unrestricted access to all Materials.   Contractor shall return any or all Materials to Customer immediately upon the request of Customer.

   2. Customer agrees that all right, title and interest, including all Intellectual Property Rights, in and to any methods, processes, procedures, systems, inventions (whether patentable or not), devices, discoveries, concepts, know-how, data, databases, technology, products, software (in executable and source code), templates, documentation, specifications, compilations, designs, reports, trade-marks, and any enhancements, modifications, or additions to the foregoing, which have been created or developed by or for Contractor in connection with the performance of any of the Services hereunder (the “Developments”) shall be owned exclusively by Contractor.  To the extent that Customer has any right, title or interest, including Intellectual Property Rights, in the Developments, Customer hereby transfers, conveys and irrevocably assigns in perpetuity all such right, title and interest worldwide to Contractor.

   3. Customer agrees to do and execute or cause to be made, done or executed all such further and other things, acts, deeds, documents, applications, specifications, oaths, assignments and assurances as may be necessary or reasonably required to give full effect to the transfer and assignment set out in Section 9.2 and to evidence Contractor’s right, title and interest in the Developments. 

   4. Customer further agrees that Contractor shall retain all of its right, title and interest in and to Background Intellectual Property. To the extent that any Background Intellectual Property is incorporated into any deliverable hereunder, including any Customer product, process or machine, Customer is hereby granted and shall have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell, and to sublicense such licenses to, such Background Intellectual Property as part of or in connection with such product, process or machine.

3. Warranties

   1. Each party represents and warrants that it has the authority to enter into these Terms of Service and has obtained all rights and waivers necessary to grant the rights, titles and interests granted to the other party hereunder.  

   2. Contractor represents and warrants that all Services provided hereunder will be performed in a diligent and workmanlike manner consistent with standards generally observed in the industry for the same or similar services.

   3. Except as provided explicitly herein, the Services are provided “as is” with no warranty of any kind and Contractor expressly disclaims any and all warranties of merchantability, fitness for a particular purpose, particular outcome, availability, security, title and non-infringement. Under no circumstances will Contractor be liable for the results of Customer’s subsequent use or misuse of the Services, including any use contrary to law. Without limiting the foregoing, Customer acknowledges that from time to time, the Customer may provide certain physical items to the Contractor in connection with the Services and that aside from Contractor’s maintenance of a general policy regarding the handling of Customer items, Contractor makes no warranties as to the treatment of such items.

4. Indemnities

   1. Customer shall indemnify and hold Contractor and its partners, directors, officers, employees, agents and contractors harmless from and against all claims, actions, liabilities, damages, losses, awards, judgments, settlements, proceedings, demands and expenses (including reasonable legal fees):

      1. in respect of personal injury, including death, or loss of, damage to, tangible property or loss of data related to, arising out of or in connection with the Services, 

      2. in connection with any breach by the Customer of these Terms of Service or applicable law, and 

      3. related to, arising out of or in connection with any claim or action that Customer’s use of any Development or Background Intellectual Property infringes any Intellectual Property Right of any third party,

and in each case will pay all resulting settlements and/or costs, claims, damages or charges whatsoever.

1. If Contractor receives any notice of claim or demand relating to matters in respect of which the indemnity given by Customer may extend (“Claim”), Contractor shall promptly after receipt thereof notify Customer of the Claim and deliver a copy of same to Customer.  Failure to so notify the Customer shall not relieve the Customer of any liability it may have to the Contractor hereunder except to the extent Customer has been prejudiced thereby.  Customer shall be obligated to assume the defence of the Claim, at its own expense, with counsel chosen by Customer and reasonably satisfactory to Contractor.   Notwithstanding that Customer will be obligated to assume the defence of any Claim, the Contractor shall be entitled to participate in the investigation and defence thereof, with separate counsel chosen by Contractor, but in such event the fees and expenses of such counsel shall be paid by Contractor unless:

   1. Customer shall have agreed to pay such fees and expenses;

   2. Customer shall have failed to assume or continue the defence of such claim with counsel reasonably satisfactory to Contractor; or

   3. in the reasonable judgment of Contractor, based on the advice of its counsel, a conflict of interest exists between the Contractor and the Customer with respect to such claim, in which case, if Contractor notifies Customer that Contractor elects to employ separate counsel, the Customer will not assume the defence of such claim on behalf of Contractor and shall be obligated to pay the reasonable fees and expenses of such separate counsel.  

2. Notwithstanding anything to the contrary in this Section 11, Customer shall not, without the prior written consent of Contractor, which consent shall not be unreasonably withheld, settle or compromise any action in any manner that, in the reasonable judgment of Contractor or its counsel, may materially and adversely affect Contractor or its counsel, other than as a result of money damages or other money judgments; provided however, that Customer may, without the written consent of Contractor, settle or compromise any action or consent to the entering of any judgment which is for money damages only and includes as an unconditional term thereof the delivery by the claimant or plaintiff to Contractor of a duly executed written release of Contractor from all liability in respect of such Claim, which release shall be satisfactory in form and substance to counsel to Contractor.

3. Limitation of Liability

   1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR REVENUE, HOWSOEVER CAUSED, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE PARTY IN DEFAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES WHETHER ANY SUCH DAMAGES OR LOSSES ARISES OUT OF CONTRACT (INCLUDING FUNDAMENTAL BREACH) TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.

   2. Notwithstanding any other provisions of this Agreement, in no event will Contractor’s aggregate liability to Customer in connection with the Services exceed the total amount paid or payable by Customer to the Contractor in the six-month period preceding the claim or action.

4. Termination

   1. These Terms of Service may be terminated by Contractor, without further liability on thirty (30) calendar days’ prior written notice to Customer or without notice in the event that Customer is in breach of its obligation to pay the Fee to Contractor or to provide necessary Inputs to Contractor and has not cured such breach within ten (10) Business Days of receipt of written notice of such breach from Contractor. 

   2. Either party may terminate these Terms of Service upon thirty (30) calendar days’ prior written notice to the other party of such other party’s material breach of any of its obligations under these Terms of Service, unless such material breach is remedied within such thirty (30) calendar day period.  In addition, either party may terminate these Terms of Service by written notice to the other party, effective immediately upon its sending, if the other party shall file a petition in bankruptcy, shall be adjudicated as bankrupt, shall take advantage of the insolvency laws of any jurisdiction to which it is subject, shall make an assignment for the benefit or creditors, shall be voluntarily or involuntarily dissolved, shall admit in writing its inability to pay debts as they come due, or shall have a receiver, trustee or other court officer appointed for its property. Upon volunteer termination of this agreement by the Customer, the Customer agrees to pay all fees and expenses that is incurred by the Contractor regardless of the status of the CDAP grant application to be paid immediately. 

   3. In addition to the foregoing, Contractor reserves the right to immediately suspend the provision of the Services upon the discovery of any unlawful or improper activities on the part of the Customer or its representatives or if the Customer’s usage of the Services would jeopardize the safety of the Services for any user or the Contractor. Any costs incurred by such suspension shall be borne by the Customer outside of the existing Fees and Royalties under the Service Order.

5. Exclusivity

The Contractor agrees that it has exclusivity with the Customer, which means the Contractor agrees not to enter into any contracts with any other business entities that are competing with the Customer for services provided under this Contract. This exclusivity agreement will remain in full force and effect during the entire term of the Contract and after the termination of this agreement.

Contractor shall implement and maintain industry standard safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access or use of the Service. Customer acknowledges and agrees that notwithstanding the security measures, such methods and procedures may not prevent unauthorized electronic intruders from accessing the Service through the Internet or through other forms of electronic communication. Except for the maintenance of industry standard safeguards, which are designed to frustrate access from unauthorized electronic intruders, Contractor shall not be liable and disclaims responsibility to Customer with respect to any action by any unauthorized electronic intruder.

1. Restrictive Covenants

   1. During the Term of these Terms of Service, and for a period of one (1) year thereafter:

      1. Customer shall not, without the prior written consent of Contractor, hire, retain or engage, or make an offer in respect of same to, any employee, contractor or consultant of Contractor who directly participated in the provision of the Services hereunder.

      2. Customer shall not, without the prior written consent of Customer, solicit, or attempt to divert to any competitor of Contractor, any customer of Contractor by direct or indirect inducement or otherwise.

   2. During the Term of these Terms of Service, and for a period of one (1) year thereafter:

      1. not make (or direct anyone to make) any negative or derogatory comment to any third party, including employees, consultants and contractors of the Contractor, regarding the Contractor, the business of the Contractor or the relationship between the Contractor and the Customer;

      2. communicate in all respects in a positive and supportive manner about the Contractor and the business of the Contractor; and

      3. not say anything that is likely to cause prejudice, loss or injury to the Contractor or the business of the Contractor and any of its employees, contractors, consultants, directors and officers.

   3. The parties acknowledge and agree that the restrictions contained in this Section 16 hereof are reasonable and necessary.

2. General

   1. These Terms of Service shall not be assigned by Customer (whether voluntarily, by operation of law, or otherwise) without the prior written consent of Contractor, which consent may be withheld for any reason.  

   2. Contractor shall have the right to refer to its work for and relationship with Customer for marketing and promotional purposes, including any logos, trade names, copyrights or other publicly displayed information of the Customer.

   3. No waiver by Contractor of any rights arising from the breach of these Terms of Service shall be construed as a continuing waiver, nor shall failure to assert a breach be deemed to waive that breach or any further breach. No waiver of any of the provisions or a breach of these Terms of Service shall constitute a waiver of any other provision or other breach of these Terms of Service.  No waiver shall be binding unless executed in writing.  

   4. The provisions of Sections 5, 8, 9, 10, 14 and 16.3 hereof shall survive the termination or expiration of these Terms of Service.

   5. Each party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under these Terms of Service (each, a “Notice”) in writing and addressed to the other party at the addresses set forth on the first page of these Terms of Service (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Each party shall deliver all Notices by email. Except as otherwise provided in these Terms of Service, a Notice is effective only:

      1. upon receipt by the receiving party, and

      2. if the party giving the Notice has complied with the requirements of this Section.

   6. Each of the parties hereto agrees to do and execute or cause to be made, done or executed all such further and other things, acts, deeds, documents, assignments and assurances as may be necessary or reasonably required to carry out the intent and purpose of these Terms of Service fully and effectually.

   7. These Terms of Service shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms of Service and each party hereby consents to the exclusive jurisdiction of such courts.

   8. These Terms of Service together with each Service Order entered into between Customer and Contractor represent the full and complete understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous representations and understandings, whether oral or written.  Contractor acknowledges that he or she has had the opportunity to obtain independent legal advice with respect to the terms and conditions hereof. 

   9. In no event shall the Contractor be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Contractor shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances.

   10. In the event that any provision or part thereof is determined by a court of competent jurisdiction to be unenforceable, such provision, or part thereof, shall be deemed to be severed from these Terms of Service and the remaining provisions of these Terms of Service shall continue in full force and effect and shall be binding upon the parties hereto as though such severed provision had not formed part of these Terms of Service.

   11. The obligations of Contractor under these Terms of Service shall be binding upon and shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.