Terms of Service

Last Updated: [October 2nd, 2023]

These terms and conditions (the “Terms and Conditions”) govern the supply of services by Saucal Inc. (“SAU/CAL”, “us”, “we”, “ours” and words of like import) to our clients under statements of work that we may enter into with them from time to time.

1. Definitions

2. The Agreement and Statements of Work

2. These Terms and Conditions apply to all of our services to you (the “Services”, and when used in reference to a particular Agreement or a particular Statement of Work, means the applicable Services) under any statement of work (each, a “Statement of Work”, and when used in reference to a particular Agreement or particular Services, means the applicable Statement of Work) we may from time to time enter into in writing with you. These Terms and Conditions apply notwithstanding the terms of any purchase order or RFP or other terms of Client of any kind, unless we have expressly agreed otherwise in the applicable Statement of Work. If we perform Services for you before we and you enter into a Statement of Work these Terms and Conditions apply to those Services for such period, and continue to apply to those Services even if we and you do not enter into any Statement of Work or any other written agreement concerning those Services.
3. These Terms and Conditions, together with the applicable Statement of Work, constitute a legally binding agreement (when used in reference to a particular Statement of Work or particular Services, the agreement resulting from these Terms and Conditions and the Statement of Work is referred to as the “Agreement”), and govern our delivery and your receipt and use of the Services. In the event of any conflict of inconsistency between these Terms and Conditions and a Statement of Work, the Statement of Work shall prevail.
4. An Agreement is effective from and after the effective date stated in the Statement of Work, or if no effective date is stated in the Statement of Work, from and after the earlier of the date on which you purchase the applicable Service, or the date we commence performing the Service at your request.
5. These Terms and Conditions include our Privacy Policy, which is located here, as it may be amended from time to time. When you agree to these Terms and Conditions you expressly consent to our collection, use and disclosure of your personal information in accordance with our Privacy Policy.

3. The Services

3. We shall perform, or cause to be performed (including through appropriate supervision and inspection), the Services, and otherwise fulfill our obligations under the Agreement, exercising reasonable skill, care and diligence, in accordance with recognized professional and industry standards, in a timely manner and in accordance with the terms and conditions of the Agreement.  We possess the knowledge, skill and experience necessary for the provision and completion of the Services in accordance with the terms of the Agreement, and each worker furnished or deployed by us under the Agreement shall be competent and qualified to perform the Services required of the worker.  We shall comply with all applicable laws in the performance of Services. We do not sell products, we sell services.  Accordingly, we provide no warranty or guarantee about any Deliverable except as expressly stated in the Agreement.
4. You acknowledge that unless a Statement of Work provides for particular dates, all deadlines and date milestones in a Statement of Work are approximate.  You also acknowledge that to the extent our performance of the Services is delayed by your acts or omissions, any deadline or date milestone that applies to us and is affected by such delay shall be extended on a day-for-day basis by the amount of the delay. Such delays are also subject to additional costs, to be discussed and agreed by you and us at the applicable time.
5. You shall have a reasonable period of time, not to exceed 15 days after delivery to you of any Deliverable, to test the Deliverable for compliance with the Agreement.  We will make reasonable efforts to correct, within a reasonable period of time not to exceed 15 days, any deficiency from the warranties in the Agreement that you notify to us in writing during that testing period.  If you do not give us written notice within any such testing period of any deficiency you will be deemed to have accepted the Deliverable.
6. Unless explicitly addressed in a Statement of Work, you shall be responsible for web hosting (including databases, CDNs, mail servers and other third-party services) related to Deliverables (“Web Hosting”). If you do not have Web Hosting then we shall provide it (unless you have provided explicit instructions that we are not to provide it) and invoice you at our cost plus 10%. If you request our assistance with respect to your Web Hosting then we shall invoice you our prevailing consulting rate without providing advance notice.
7. You must obtain and install all software and hardware required for us to perform the Services. We will provide assistance where possible, but software and hardware installation by us is not provided as part of the Services. You acknowledge and agree that that the timelines of this Agreement depend on the availability of such hardware and software and that delays in procurement or installation may increase the timelines and Fees for the performance of the Services and delivery of the Deliverables.

4. Fees, Expenses and Taxes, and Billing

4. In consideration of the provision of the Services, you shall pay to us the Fees in accordance with the Agreement.  You shall also reimburse us for any expenses that are set forth in a Statement of Work, or otherwise approved by you in advance in writing.  You shall pay for Services in accordance with the Statement of Work. Payment shall be due on presentation of our invoice.
5. You shall pay all applicable sales and excise taxes, including HST, on amounts due under the Agreement.  
6. In the event that any amounts properly due remain unpaid after the due date, in addition to any other remedies we might have under the Agreement or in law, we have the right without notice to you to (i) immediately discontinue providing the Services or any other Services, and/or (ii) alter the Fees and billing under the Statement of Work should you wish to continue receiving the Services after paying all overdue amounts.
7. If a Statement of Work includes a deposit requirement then we shall not be obligated to perform any services for you until the deposit is paid to us (and any estimated times shall be extended accordingly).

5. Default and Termination

5. The term of an Agreement (the “Term”) will be set forth in the Statement of Work and will continue until its expiration or early termination in accordance with this Article 5.
6. The following events are a Default by a party where the default is not cured in the relevant cure period:
   1. a party fails to perform or observe any of its material obligations under the Agreement and the failure continues unremedied for 15 days following receipt of a notice of the failure from the other party;
   2. a party becomes insolvent, commits any act of bankruptcy (as set out in the Bankruptcy and Insolvency Act (Canada)) or makes a proposal under the Companies Creditors Arrangement Act (Canada); or
   3. a party fails to make payment when due to the other party, and such failure continues unremedied for 30 days following receipt of notice of Default from the other party.
7. Upon Default, the non-defaulting party may do any or all of the following:
   1. it may immediately terminate the Agreement by giving notice; and
   2. it may exercise any of its other rights and remedies provided for hereunder or otherwise available to it at law or in equity.
8. You may terminate the Agreement for convenience upon 30 days written notice to us.  If you give us such notice we will as soon as reasonably practicable cease performing the Services, and you shall be obligated to pay the full price quoted in the Statement of Work. If the Statement of Work quotes an hourly rate (not a fixed fee) then you shall be obligated to pay for all hours worked at the agreed upon rate plus a 10% administrative charge. 
9. Upon termination, each party shall return to the other the other party’s Confidential Information or, upon request, destroy the Confidential Information and all copies and certify in writing that they have been destroyed.  All obligations arising prior to termination shall be complied with and any provisions of the Agreement that by their nature operate beyond the termination or expiry of the Agreement shall survive such termination.  

6. Intellectual Property and Licenses

6. We grant to you a non-exclusive, royalty-free (except for amounts due hereunder) perpetual license to use any Work Product or Pre-Existing Materials included in a Deliverable, such license to become effective automatically upon the later of (i) the delivery of the applicable Deliverable, and (ii) your payment for the applicable Deliverable (or in the case of your termination for convenience, the amount required to be paid hereunder in such event) in accordance with the Agreement.  This license allows you to use such Work Product and Pre-Existing Materials in connection with the Deliverable, allows you to modify the Work Product and Pre-Existing Materials to the extent necessary to modify the Deliverable, can be sublicensed to any user of the Deliverable and can be assigned to any transferee of the Deliverable.  This license survives any termination or expiry of the Agreement, except for a termination by us for your breach of the Agreement.
7. If Deliverables include any Third-Party Materials (e.g. WordPress, JQuery, etc.) then the applicable third-party license shall apply to your use of those materials.

7. Confidentiality

7. Each party acknowledges that it would be damaging to the other party if its Confidential Information were disclosed to or obtained by third parties.  Each party shall make all commercially reasonable efforts during the term of the Agreement and thereafter to prevent the other party’s Confidential Information from being disclosed to or obtained by any person or entity for any purpose except as described in the Agreement.  Each party’s efforts will not be less than those that it takes to prevent disclosure of its own Confidential Information.  The Receiving Party will be responsible for breaches by its Representatives of the Agreement.  Without limiting the generality of the foregoing, (i) SAU/CAL will keep confidential all Confidential Information furnished to it or its Representatives and will use such Confidential Information solely for the purpose of providing the Services., (ii) SAU/CAL may provide Client’s Confidential Information to SAU/CAL’s Representatives as reasonably required for the purpose of providing the Services, and (iii) SAU/CAL’s Representatives may from time to time include subcontractors that provide artificial intelligence services, including generative AI, that SAU/CAL uses in the course of providing the Services.
8. It is not a breach of Section 7.1 to disclose Confidential Information required to be disclosed by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of any required disclosure pursuant to such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible and fully cooperates with the Disclosing Party, in any efforts Disclosing Party may reasonably take to challenge or delay such disclosure.
9. This Article 7 shall not be construed to limit either the Disclosing Party or the Receiving Party’s right to independently develop or acquire products, provided it is done without use of the other party’s Confidential Information.  Further, the Receiving Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of the Agreement. The term “residuals” means information in intangible form, which is retained in unaided memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein.  The Receiving Party shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.

8. Warranties, Limitation of Liability and Indemnities

8. Except as specifically set forth in the Agreement, SAU/CAL makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services or any Deliverable.  SAU/CAL does not represent or warrant (a) that the use of the Services or any Deliverable will be uninterrupted or error-free or operate in combination with any other hardware, software, system or data, or (b) that all errors or defects will be corrected.  Except as specifically set forth in the Agreement, all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantable quality, merchantability, fitness for a particular use or purpose, or non-infringement of third party intellectual property rights, are disclaimed to the maximum extent permitted by applicable law.
9. SAU/CAL shall not have any responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of the Client Materials, or for obtaining rights to use or title to any Client Materials, or for any loss or damage they or their use causes.  We have no responsibility for any Third Party Materials, or for any loss, damage or claim you may suffer from their inclusion in a Deliverable.
10. Except for direct damages neither party shall be liable to the other for any damages whatsoever (including without limitation loss of profits or other economic loss, or any indirect, exemplary, incidental, special or consequential damages, even if it has been advised of the possibility of such damages). Other than liability for unpaid amounts for Services, in no event shall either party’s liability for damages for any Services exceed, in the aggregate, the total fees paid by Client to SAU/CAL for the Services in the 12 months immediately preceding the event which caused the damage or injury. The exclusions and limitations in this Section 8.3 shall apply regardless of whether any action is brought in contract or in tort, including breach of warranty, negligence and strict liability, or fundamental breach and/or failure of essential purpose of the Agreement or of any remedy contained herein, and shall survive the expiration, termination or repudiation of the Agreement, but shall not apply to indemnification under the Agreement or to breaches of Article 7.
11. SAU/CAL shall defend or settle at its own expense any and all suits, actions or claims against you alleging that (i) any part of the Services or a Deliverable, or (ii) the use of the Services or a Deliverable by you in the manner contemplated by the Agreement, infringes any copyright or trade secret in Canada, the EU or the United States of America, provided that we are notified promptly in writing of such claim, have the exclusive right to control such defense or settlement and, at our request and expense, are given authority and assistance by you reasonably required for such defense.  We will pay any settlement amount, or any damages and costs finally awarded, in any such suit, action, or claim. If any part of a Deliverable is, or in our opinion is likely to become, the subject of such a suit, action or claim, we at our option may: (i) and at no expense to you obtain for you from all persons who claim an interest in the Deliverable, the right to allow you to use it as contemplated by the Agreement; or (ii) and at no expense to you substitute non-infringing equivalent materials, or (iii) purchase the Deliverable by refunding to you all amounts paid by you to us for the Deliverable.  Nothing in this Article shall require us to indemnify you for any matter arising from any of: (i) any modifications made by you; (ii) any Default by you; (iii) the combination of a Deliverable by you with other software, equipment, systems or process; or (iv) the Client Materials or Third-Party Materials.  For clarity, unless we agree to the contrary in writing, we have no responsibility or liability under an Agreement or otherwise to you for any third party claims of infringement of patent rights in relation to a Deliverable or the Services or other damages you might suffer as a result thereof. 
12. You shall defend or settle at its own expense any and all suits, actions or claims against SAU/CAL alleging that (i) any part of the Client Materials; or (ii) the use of the Client Materials by SAU/CAL in the manner contemplated by the Agreement; infringes any copyright or trade secret in Canada or the United States of America, provided that Client is notified promptly in writing of such claim, has the exclusive right to control such defense or settlement and, at its request and expense, is given authority and assistance by SAU/CAL reasonably required for such defense.  Client will pay any settlement amount, or any damages and costs finally awarded, in any such suit, action, or claim.

9. General

9. Neither you nor we shall, during the term of the Agreement and for twelve (12) months thereafter, without the other’s prior written consent, solicit for hire any of the other’s employees.  This provision shall not restrict the right of either party (1) to solicit or recruit generally in the media, and (2) to hire, without the prior written consent of the other party, any personnel of the other party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
10. Neither of us may assign our rights and obligations under the Agreement without the prior written consent of the other, provided that each of us may assign our rights under this Agreement in connection with the purchase of all or substantially all of our assets.
11. We may with your prior written approval disclose that you are a client and give a high-level overview of services delivered to you. On your prior written approval we shall be entitled to use your logo and name in connection with disclosing that you are or were a client. 
12. Neither party shall be liable to the other for any delay or failure to perform due to fire, flood, earthquake, acts of God, acts of war, riots, civil disorder, strikes, lock-outs or labor disruptions, the failure of telecommunications systems or any other cause whether similar or dissimilar beyond its reasonable control (a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance of those of its obligations pursuant to the Agreement affected by the Force Majeure Event only for so long as such Force Majeure Event continues and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.
13. Notices and other communications required or permitted under the Agreement shall be sent by email to the email address routinely used by the parties in their communications with each other, or via any other electronic messaging or communications system that the parties determine to or do use. 
14. Except as expressly set out herein, nothing contained in the Agreement shall create or imply any employment or agency relationship between the parties, nor shall the Agreement be deemed to constitute a joint venture or partnership between the parties.
15. The Agreement constitutes the entire agreement between the parties relating to the Services, and may not be amended except with the written agreement of both parties.  Sections 5.5, 7, 8 and 9 shall survive any termination or expiry of the Agreement.
16. The Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.  The courts situate in the City of Toronto shall have exclusive jurisdiction over all disputes.  The parties agree that jurisdiction and venue in such courts is appropriate and each irrevocably attorns to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
17. The parties have requested that the Agreement 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.