1. The Agreement

1.1 This agreement is entered into by and between Ten10 Solutions Inc. (the “Supplier”) and the party named in the accompanying statement of work or proposal (the “Client”), and is made up of the following elements (collectively, the “Agreement”):

(a)  the Statement of Work (“SoW”) or Proposal (“Proposal”) issued by the Supplier to the Client, setting forth the details of the services to be provided by the Supplier to the Client (the “Services”);

(b)  these Terms and Conditions (the “Terms and Conditions”); and

(c)  the Schedules (if any) as attached to the SoW or Proposal (the “Schedules”).

1.2 If there is any conflict or ambiguity between these Terms and Conditions and any provision contained in the SoW or Proposal, these Terms and Conditions shall prevail, unless specifically modified by the SoW or Proposal and agreed to by the Supplier and the Client.

1.3 The Agreement constitutes the entire agreement between the Supplier and the Client related to the subject matter thereof and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, regarding the same.

1.4 These Terms and Conditions shall apply to the exclusion of any other terms and conditions on any order form or other document under which the Client accepts the provision of the Services.

1.5 The Client acknowledges that the Supplier may determine, in its sole discretion, the manner in which the Services will be performed, so long as they are performed: (i) in a manner that is consistent with the SoW and/or Proposal, as applicable, (ii) in a workmanlike manner using reasonable skill and care, and (iii) in compliance with applicable

1.6 The Client shall provide to the Supplier (and its employees and contractors, as applicable), at no charge to the Supplier, all necessary information, support, cooperation and accommodation, access to the Client’s premises and facilities, books and records, data and other items including, without limitation, access to any applicable equipment and systems of the Client as may reasonably be required by the Supplier (and its employees and contractors, as applicable) in order to carry out the

1.7 The Client shall take all reasonable steps to ensure the health and safety of the Supplier’s employees and contractors while they are at the Client’s premises or within its facilities.

2. Fees, Payments and Expenses

2.1 The Supplier shall invoice the Client for its fees (which shall include all applicable taxes, including VAT) monthly, or at the completion of the SoW or Proposal if the term of the Services contemplated by such SoW or Proposal is less than one month.

2.2 The Client shall pay the Supplier in full, without set-off, deduction or withholding, within twenty-eight (28) days of the invoice date (the “Payment Date”).

2.3 If the Client fails to make any payment due to the Supplier by the Payment Date, the Supplier reserves the right to charge interest on any overdue sums, whether before or after judgement, at the rate of 4% above the base lending rate of the Bank of America Corporation (or any successor in interest thereof) then in effect.

2.4 All fees quoted by the Supplier under the Agreement shall be exclusive of VAT and Without limiting the foregoing, the Client shall reimburse the Supplier for all reasonable expenses incurred by the Supplier (including its contractors, where applicable) in connection with the SoW or Proposal, including travel, accommodation, the cost of any materials or software licences (if applicable) and any other expenses, together with VAT.

2.5 The Supplier’s daily fee rates shall be calculated on the basis of a 7.5 hour working day, Monday to Friday, between the hours of 09:00 a.m. and 5:30 p.m. The Supplier shall be entitled to charge one and a half times (1.5x) the equivalent hourly rate for any work carried out on Saturdays or weekdays in excess of 37.5 hours in any one week. U.S. federal holidays and Sundays will be charged at two times (2x) the equivalent hourly rate.

2.6 If the event that, after the parties have agreed to a Service commencement date in a SoW or Proposal, the Client wishes to (i) change the Service commencement date, (ii) reduce the scope of the Services, or (iii) temporarily suspend the Supplier’s performance of the Services, the Client shall give the Supplier no less than the amount of prior notice specified within the SoW or Proposal. Should the Client fail to provide such notice, the Supplier may, in its sole discretion, charge the Client for the fees which would have been payable under such SoW or Proposal.

2.7 The Supplier’s rates are subject to review and modification, in the Supplier’s sole discretion, on an annual basis (to occur on April 1).

3. Personnel

3.1 The Supplier reserves the right (at its sole discretion) to replace its personnel who are performing the Services with alternative personnel at any time and without notice.

3.2 Neither party shall, without the prior written consent of the other, at any time during the Term (as defined below) and for a period of six (6) months thereafter, solicit, engage, or employ, or attempt to solicit, engage, or employ, any person who is, or was during the Term, engaged as an employee, consultant or contractor of the other party and with whom the soliciting, engaging, or hiring party first had contact as a result of the Agreement or the performance of the Services. If either party breaches this Section 3.2, the breaching party shall pay (as liquidated damages for such violation and not as a penalty or as a substitute for any other payments due under the Agreement) to the other party a sum equal to the annual compensation paid to such person by the non-breaching

4. Intellectual Property Rights

4.1 For purposes of these Terms and Conditions, the term “IPR” shall mean, collectively, all intellectual property rights, including, without limitation, patents, supplementary protection certificates, utility models, trademarks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not such rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may exist anywhere in the world, in each case for their full term, and together with any renewals or

4.2 All IPR belonging to the Supplier and the Client (or any third party) prior to the entry by the parties into the Agreement, or created other than in the provision of the Services (collectively, “Pre-existing IPR”) shall remain vested in that party or third party (as applicable), and no interest in any Pre-existing IPR for the benefit of either shall be created as a result of the Agreement except as expressly provided for therein.

4.3 The Supplier and the Client hereby grant to the other a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use its Pre-existing IPR during the Term solely for the purpose of providing or receiving the Services (and, in the case of the Supplier’s Pre-existing IPR, to the extent that such Pre-existing IPR forms part of a deliverable, solely for the internal business purposes of the Client) in accordance with the terms of the Agreement.

5. Limitation of Liability


5.2 Neither party shall be liable to the other party for any consequential, incidental, indirect, special, or punitive damages including, without limitation, for any loss of profits, business, revenue, business opportunities, goodwill or anticipated savings.

5.3 Neither party limits or excludes its liability with respect to; (i) death or personal injury caused by its reckless or wilful misconduct in connection with the performance or receipt of the Services; (ii) actual fraud; or (iii) any other liability to the extent that the same cannot be excluded by applicable

5.4 Subject to Sections 5.2 and 3 above, in no event shall the Supplier’s total liability to the Client, whether in contract, tort, breach of statutory duty, or otherwise, arising under or in connection with the Agreement, exceed, in the aggregate, the fees paid or payable to the Supplier under the Agreement.

5.5 In no event shall the Supplier be liable for any loss or damage caused by any default, act or omission on the part of the Client, and the Client hereby agrees to indemnify and hold harmless the Supplier harmless in connection with any third party claims for losses or damages caused by or arising from (i) any act or omission of the Supplier in providing the Services, to the extent that such act or omission was undertaken by the Supplier in accordance with instructions issued by the Client, (ii) any claim that the Client’s Pre-existing IPR, when used by the Supplier in accordance with the Agreement and the Client’s instructions, violates any third party IPR, or (iii) any claim that the use of the Supplier’s Pre-existing IPR by the Client in any manner that is inconsistent with the terms of the Agreement or the Supplier’s instructions violates any third party IPR.

6. Termination

6.1 The Agreement shall become effective upon the Client’s execution of an SoW or Proposal which incorporates these Terms and Conditions by reference and, unless otherwise modified in accordance with Section 12.1, shall remain in effect until either party terminates the Agreement by giving not less than thirty (30) days’ prior written notice to the other party (such period, the “Term”).

6.2 Each party shall have the right to terminate the Agreement with immediate effect by giving written notice to the other if the other party commits a material breach of the Agreement which cannot be remedied or, if such breach could be remedied, the breaching party fails to do so within a period of twenty-eight (28) days after being notified of the breach in writing.

6.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due to the Supplier pursuant to the Agreement within twenty-eight 28 days of the applicable Payment Date.

7. Assignment and Contracting

7.1 The Client shall, not without the prior written consent of the Supplier, assign transfer or contract any of its rights or obligations under the Agreement to any third

7.2 The Client acknowledges that the Supplier may engage contractors to perform the Services in its sole discretion.

8. Force Majeure

Neither party shall be deemed to be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure is the result of events, circumstances or causes beyond its reasonable control including, but not limited to, Acts of God, acts of government, war, famine, fire, floods, power outages, natural disasters, or other such events.

9. Confidentiality

9.1 Each party undertakes that it shall not at any time during the Term, and for a period of five (5) years thereafter, disclose to any person any confidential or proprietary information concerning the business, affairs, operations, technology, business plans, customers, clients or suppliers of the other party, except as expressly permitted by Section 9.2 Each party also agrees not to use any confidential information belonging to the other party for any purpose other than to perform its obligations under the Agreement. The foregoing prohibition shall be in addition to, and not in place of, the terms of any separate agreement between the Supplier and the Client with respect to the use and protection of confidential information.

9.2 Notwithstanding Section 9.1, each party may disclose the other party’s confidential information:

(a)  to its employees, officers, representatives, contractors or advisors who need to know such information for the purposes of carrying out its obligations under the Agreement (and, in each case, only to the extent of such need); and

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3 Each party shall ensure that its employees, officers, representatives, contractors or advisers to whom it discloses the other party’s confidential information pursuant to Section 9.2 comply with Section 1, and each party shall be liable to the other for any breach of Section 9.1 by such party’s employees, officers, representatives, contractors or advisors as if such breach had been made by such party.

10. Publicity

Neither party shall make any press announcement or publicise the Agreement without the prior written consent of the other party, provided that the Supplier shall be entitled to refer to the Client in its general marketing, publicity and case study materials.

11. Data Processing

To the extent that either party processes any data of the other party pursuant to the Agreement or the performance or receipt of the Services, the party processing such data shall maintain appropriate technical and organisational security measures to ensure a level of security appropriate to the risk of inadvertent or unintended disclosure of, or access to, such data as a result of such processing.

12. General

12.1 No modification of or amendment to the Agreement (or any constituent part thereof) shall be effective unless it is in writing and signed by the parties (or their authorised representatives). Without limiting the foregoing, no modification of this Agreement shall be effected by the Client’s issuance of any order form, purchase order, acknowledgement, shrinkwrap, boxtop, or clickwrap license, or other form containing additional or different terms issued by the Client.

12.2 No failure or delay in exercising any right, power or privilege under the Agreement by either party shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or any further exercise thereof or the exercise of any right, power or privilege hereunder.

12.3 If any provision of the Agreement (or any constituent part thereof) or the application thereof is held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision and such invalid, illegal or unenforceable provision will be reformed, construed and enforced as if such provision had never been contained in the Agreement and there had been contained in the Agreement instead such valid, legal and enforceable provisions as would most nearly accomplish the intent and purpose of such invalid, illegal or unenforceable provision.

12.4 Nothing in the Agreement is intended, or shall be deemed, to establish a partnership or joint venture between the parties, constitute any party the agent of another party, or authorise a party to make or enter into any commitments for or on behalf of the other. Without limiting the foregoing, it is acknowledged and agreed that the Supplier and the Client shall be deemed independent contractors for all purposes under the Agreement.

12.5 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the state of Delaware, without giving effect to any principle thereof concerning the conflict of laws. Each party irrevocably agrees that any dispute arising in connection with this Agreement shall be determined in the first instance by the district courts (federal or state) located in Wilmington, Delaware, and each party hereby irrevocably submits and consents to such courts’ exercise of jurisdiction.  The prevailing party in any suit to enforce this Agreement shall be entitled to recover its reasonable documented, out-of-pocket costs and attorneys’ fees.