5.1 MCI acknowledges and agrees that in the course of providing Services to CARRIAGE HOUSE, MCI, along with its employees, contractors, and consultants (collectively in this Article referred to as “MCI Personnel”) may obtain, gain access to, be exposed to, or otherwise be provided with confidential information regarding the business and affairs of CARRIAGE HOUSE, its affiliates, or its or their clients, in one or more forms or medium, including without limitation written, oral, printed, electronic and/or digital (in all cases, “Confidential Information”).
5.2 MCI covenants and agrees that all MCI Personnel shall maintain the confidentiality of any Confidential Information, shall not disclose the Confidential Information to any person unless required in connection with the provision of the Services, shall use the Confidential Information only as permitted hereunder and for clarity shall not make use of the Confidential Information for their own purposes, and shall return any Confidential Information to CARRIAGE HOUSE or upon completion of the Services, termination of employment or engagement, or upon request by CARRIAGE HOUSE or MCI.
5.3 The term Confidential Information will not, however, include information that (i) was or becomes publicly available other than as a result of a disclosure directly or indirectly by MCI or MCI Personnel in violation of this Agreement, (ii) was or becomes available to MCI on a non-confidential basis from a source (other than CARRIAGE HOUSE or any of its representatives) not known by MCI, after reasonable inquiry, to be prohibited from disclosing such information to MCI by a legal, contractual or fiduciary obligation, or (iii) was or is developed independently by MCI or MCI Personnel without the use of Confidential Information.
5.4 MCI shall ensure that all employee(s) and MCI Personnel are bound by a Confidentiality and Non-Disclosure Agreement at least as protective of Carriage House’s Confidential Information as this Agreement and in a form satisfactory to CARRIAGE HOUSE, as a condition to such employee(s) or MCI Personnel gaining access to any Confidential Information of providing any Services. MCI may reveal the Confidential Information only to those of its employees and MCI Personnel who need to know the Confidential Information in connection with providing Services hereunder and who have been informed by MCI of the confidential nature of the Confidential Information.
5.5 MCI shall not subcontract its obligations hereunder without the prior written consent of the CARRIAGE HOUSE. MCI shall remain responsible for obligations, services and functions performed by subcontractors to the same extent as if such obligations, services and functions were performed by MCI employees, and for purposes of this Agreement such work shall be deemed work performed by MCI. MCI shall not disclose or provide any access to Confidential Information to any subcontractor unless and until such subcontractor has agreed in writing with MCI to protect the confidentiality, integrity and security of such information in a manner equivalent to that required of MCI hereunder. MCI shall ensure that all subcontractors that may have access to the Confidential Information maintain a written data security program at least as stringent as that required of MCI by this Agreement (including the requirement to ensure their own subcontractors are held to the same data security standards). For clarity, any third-party vendor retained by MCI to provide a service requested by a Client shall not constitute a subcontractor.
5.6 MCI has implemented and will maintain an appropriate security program for the Confidential Information to ensure its security, confidentiality and integrity. MCI will not process or otherwise transfer any of the Confidential Information outside of the USA or Canada without CARRIAGE HOUSE’s prior written consent, which may be withheld in its sole discretion. MCI will ensure that all of Confidential Information will be encrypted and protected at all times while in MCI’s possession or control using industry standard technologies and systems and such other additional standards and requirements reasonably requested by CARRIAGE HOUSE. MCI will notify CARRIAGE HOUSE promptly, and in any event within three (3) business days of becoming aware of it, by emailing CARRIAGE HOUSE at erin@carriagehousewealth.ca, of any actual or attempted breach in security, of any unauthorized or suspicious access to MCI’s or any MCI subcontractor’s or any third-party vendor’s systems or CARRIAGE HOUSE’s Confidential Information, and of any unauthorized access to, disclosure or use of such Confidential Information. MCI will promptly take reasonable steps to rectify any such breach, access, disclosure or use, and will use reasonable efforts to implement appropriate safeguards to protect against recurrences.
5.7 S. 5.7 I MCI will permit CARRIAGE HOUSE and any provincial or federal regulatory authority having jurisdiction over it or any of its affiliates to audit MCI’s performance of the Services provided hereunder and its compliance with its data security controls. MCI will cooperate in the conduct of any such audit. MCI acknowledges that its provision of the Services hereunder is subject to the examination, oversight and regulatory authority of the regulators of CARRIAGE HOUSE and its affiliates.
6. CARRIAGE HOUSE’S OBLIGATIONS
6.1 CARRIAGE HOUSE covenants and agrees to pay MCI’s undisputed Invoices, within the time prescribed in Section 2.4 above and/or on Schedule B attached hereto.
6.2 CARRIAGE HOUSE covenants and agrees to provide MCI with such appropriate information and other materials (whether considered Confidential Information or not), as may be reasonably requested or required by MCI, or as may otherwise be contemplated by the scope of the Services, in order to permit MCI to perform the Services in a timely manner.
6.3 CARRIAGE HOUSE agrees to abide by and accept MCI’s terms and conditions, which may be amended from time to time upon thirty days written notice, and which can be found at https://modernconcierge.com/terms-conditions/carriage-house
6.4 CARRIAGE HOUSE agrees to abide by all terms and conditions stipulated by a third-party supplier of any of the Services requested by an employee of Carriage House on behalf of Carriage House pursuant to this agreement. Further, CARRIAGE HOUSE agrees to indemnify and hold MCI and MCI Personnel harmless from and against, any claims, losses, damages, causes of action, together with costs and expenses, including reasonable legal fees, incurred by MCI arising directly from CARRIAGE HOUSE’s failure to abide by the terms and conditions of any third-party supplier of Services requested by an employee of Carriage House on Carriage House’s behalf under this agreement, including without limitation any injuries, including death, loss of or damage to property. Except with respect to matters for which Carriage House indemnifies MCI hereunder, MCI agrees to release CARRIAGE HOUSE, its affiliates and their respective officers, directors, employees and agents (the “Carriage House parties”) from any liability for any loss, liability, cost, expense or other damages arising out of or relating to Services provided by any third-party vendor for a client or employee of Carriage House hereunder, and agrees to indemnify and hold harmless the Carriage House parties from and against, any claims, losses, damages, causes of action, together with costs and expenses, including reasonable legal fees, incurred by any of the Carriage House parties in connection with MCI’s failure to abide by the terms and conditions of this Agreement.
7. RESTRICTIVE COVENANTS
7.1 Following the termination of this agreement for any reason whatsoever, CARRIAGE HOUSE covenants and agrees that the provisions of this sections 7.1 shall survive such termination for a period of two (2) years (the “Restrictive Period”), which period of time CARRIAGE HOUSE acknowledges and agrees is fair and reasonable, and reasonably necessary for the protection of MCI, provided that such non-solicitation activities shall be restricted to any and all employees, contractors, and customers of MCI of whom CARRIAGE HOUSE had knowledge and/or had contact with at any time during its engagement with MCI in accordance with this agreement.
7.2 In the event that any court of competent jurisdiction finds that the Restrictive Period is excessive or unenforceable, the parties covenant and agree that such court shall have the power to substitute such Restrictive Period with any restrictive period that such court deems reasonable, and the parties agree to be bound by any such substituted restrictive period as though originally agreed-upon in this agreement.
8. TERMINATION
8.1 Notwithstanding the Term, either party may terminate this agreement for cause, if the other party is in default of any material provision of this agreement (a “Default”), upon written notice to the other party specifying the alleged Default and providing a minimum period of five (5) days to remedy the Default.
8.2 If the Default has not been remedied within the notice period given, or such longer period of time as may be reasonably required to remedy such Default given the nature of the Default, then upon the expiry of such notice period (or extended period as aforesaid), this agreement shall be and become terminated effective the day after the expiry of the notice.
8.3 Notwithstanding the Term, either party may terminate this agreement without cause, upon providing the other party with a minimum of sixty (60) days’ notice in writing of such termination.
8.4 Upon the termination of this agreement by either party for any reason, MCI shall return to CARRIAGE HOUSE any and all property of CARRIAGE HOUSE then in its possession or in the possession of any MCI Personnel, including without limitation any Confidential Information, in all forms and medium whatsoever.
8.5 Upon the termination of this agreement by either party for any reason, CARRIAGE HOUSE shall only be responsible for the payment to MCI of any Fees earned up to the effective date of termination and any validly incurred expenses.
8.6 No termination of this agreement, whether for cause or not, shall affect the rights of either party hereunder in respect of the provisions of Article 2, Section 4.3, Article 5, Section 6.1, or Sections 8.4, or 8.5, 9 or 10, all of which provisions shall remain in force and effect.
9. REMEDIES
9.1 Notwithstanding any other remedy or remedies available to CARRIAGE HOUSE pursuant to this agreement or pursuant to any statute, common law, or equitable principal of law, in the event that MCI or any MCI Personnel has breached or threatens to breach any of the provisions of Article 5, then CARRIAGE HOUSE shall be entitled to obtain a mandatory order or injunction restraining MCI and/or the relevant MCI Personnel from engaging in or continuing any conduct that caused or threatens to cause the breach of such Article(s) (“Injunctive Relief”).
9.2 If Injunctive Relief is sought by CARRIAGE HOUSE, MCI herein agrees for itself and on behalf of any MCI Personnel to the granting of same against it/them by a Court of competent jurisdiction, without the necessity of proving irreparable harm or damages (as irreparable harm and resulting damages are presumed consequences) and acknowledge that same is reasonably necessary for the protection of the interests of CARRIAGE HOUSE. Notwithstanding that CARRIAGE HOUSE shall not be required to prove irreparable harm, CARRIAGE HOUSE will still be required to prove any damages claimed.
9.3 Neither party will be liable to the other party for any indirect, incidental, consequential, or special damages (including, without limitation, lost profits, lost future earnings, lost economic advantage) arising from or relating to any delay, performance, or failure to perform under this agreement, even if a party has been advised of the possibility. Each party hereby waives and releases any such claims for such damages against the other party. Except with respect to a party’s indemnification obligations, gross negligence, willful misconduct or violations of its confidentiality obligations, each party’s liability to the other party for damages of any kind arising from the Services is limited to the amount paid by CARRIAGE HOUSE for services pursuant to this agreement.
10. OTHER PROVISIONS
10.1 Any notice required or permitted to be given pursuant to this agreement may be validly given if made in writing and sent to the party to which such notice applies by personal delivery, or by registered mail or courier with signed receipt requested, or by facsimile or email with a copy sent by regular postage pre-paid mail, at the following addresses:
To MCI:
Attention: Tina Iaquinta
346-110 Cumberland St., Toronto, ON M5R 3V5
Email: tina@modernconcierge.com
To CARRIAGE HOUSE:
Attention: Erin O’Donoghue
Address: 2 Victoria Drive, Unit 103
City: Uxbridge Province: Ontario
Postal Code: L9P 0S2
Email: erin@carriagehousewealth.ca
10.2 This agreement shall be governed by, construed, and enforced in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada without regard to choice of law provisions.
10.3 MCI does not represent or warrant in any manner that the Services provided by MCI to CARRIAGE HOUSE will result in any additional profits, sales, exposure, or brand recognition for CARRIAGE HOUSE. Specifically, CARRIAGE HOUSE, shall have no recourse or remedy against MCI or any MCI Personnel if CARRIAGE HOUSE does not achieve additional profits, sales, exposure, or brand recognition.
10.4 This agreement shall be binding on and inure to the benefit of the parties and their respective affiliates, successors and assigns. Neither party may assign this agreement without the prior written approval of the other party.
10.5 This agreement is based on good faith negotiations between the parties and no rules of legal construction including contra proferentem or otherwise shall be applied to construe the terms hereof against a party as a drafter of this Agreement.
10.6 MCI makes no representation or warranty in respect of any third-party services required by way of the provision of the Services, and CARRIAGE HOUSE hereby agrees that MCI will not be held responsible for the quality of services provided by any third-party or the satisfaction of CARRIAGE HOUSE with respect to any third-party services, provided that MCI used reasonable care in recommending such third party.
10.7 Should any provision of this agreement be found to be unreasonable or unenforceable by a Court of competent jurisdiction, then such provision shall be severable from this agreement, such that the enforceability of the remainder of this agreement shall not be affected.
10.8 If any dispute arises between the parties over the interpretation, applicability, or enforcement of any provision hereof, the parties shall first attempt to negotiate a resolution of such dispute, either with or without the involvement of counsel (“Negotiation”). In the event that the parties have engaged in Negotiation and have not been able to resolve such dispute then, at any time after the conclusion of such unsuccessful Negotiation, any party to such dispute may refer the dispute to mediation, to be conducted by a suitable mediator to be agreed upon by the parties to the dispute and, if the parties are unable to agree on the mediator then each party to the dispute shall submit a list of two (2) mediators and one mediator’s name shall be randomly drawn from among the names submitted, by an impartial third party, and that mediator shall conduct the mediation (“Mediation”). In the event that the parties to a dispute were unable to resolve the dispute by way of Mediation, then at any time after the conclusion of such unsuccessful Mediation, any party to such dispute may refer the dispute to arbitration, to be conducted by a suitably experienced single arbitrator pursuant to the Comprehensive Arbitration Rules and Procedures of the Arbitration Act (Ontario) , such arbitrator to be agreed upon by the parties to the dispute and, if the parties are unable to agree on the arbitrator then each party to the dispute shall submit a list of two (2) arbitrators and one arbitrator’s name shall be randomly drawn from among the names submitted, by an impartial third party, and that arbitrator shall conduct the arbitration (“Arbitration”). The Arbitration shall be conducted in accordance with the terms and conditions of the arbitrator’s usual form of arbitration agreement, provided that same shall allow for an appeal of the arbitrator’s decision and award only on the basis of an error or law, and for no other reason. Otherwise, the arbitrator’s decision shall be final and binding on all parties concerned.
10.9 This agreement may only be amended, varied, or modified by further instrument or agreement made in writing and signed by all of the parties affected by such amendment, variation, or modification.
10.10 This agreement and the schedules attached hereto represent the entire agreement between the parties in respect of the subject matter hereof, and supersedes all prior negotiations and discussions and online or click through terms. There are no oral, verbal, or collateral terms, conditions, representations, warranties, or obligations of any party not set forth herein.
10.11 Time shall be of the essence in this agreement and in every part hereof.
10.12 All amounts referenced herein and the schedules attached hereto shall be in Canadian dollars.
10.13 MCI shall not, without the prior written consent of CARRIAGE HOUSE in each instance (which consent shall be in Carriage House’s sole discretion), (i) issue any press release or make any other public disclosures, announcements or statements concerning CARRIAGE HOUSE, any of its clients, the terms of this Agreement or any transaction contemplated hereunder, or (ii) use any trade name, trademark, service mark or logo owned by CARRIAGE HOUSE.
10.14 This agreement may be executed and/or delivered by the parties electronically, in counterparts. Any such electronic signatures and/or electronic delivery shall be just as valid and binding on the party as though executed and delivered originally, and all such counterparts shall be construed as but one and the same agreement. The lack of any originally executed copy shall not prevent a party from maintaining any proceeding to enforce this agreement.
