1. Term and Termination.
1.1. Initial Term. The term of this Agreement commences on the Effective Date and continues for a period of twelve (12) months, unless and until earlier terminated as provided under this Agreement (the "Initial Term").
1.2. Renewal Term. Upon expiration of the Initial Term, this Agreement automatically renews for additional successive twelve (12) month terms unless and until either Party provides written notice of non-renewal at least two (2) months prior to the end of the then-current term, or unless and until earlier terminated as provided under this Agreement (each a "Renewal Term" and together with the Initial Term, the "Term"). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement during each such Renewal Term are the same as the terms in effect immediately prior to such renewal, subject to any changes during the applicable Renewal Term. In the event either Party provides timely notice of their intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the then-current Term.
1.3. Water Tree’s Right to Terminate. Water Tree may terminate this Agreement upon written notice to the Participant:
(a) if Participant fails to pay any amount when due under this Agreement ("Payment Failure") and such failure continues for two (2) months after Participant's receipt of written notice of nonpayment;
(b) if Participant breaches any provision of this Agreement (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Participant within thirty (30) days after Participant's receipt of written notice of such breach; or
(c) if Participant (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
1.4. Participant's Right to Terminate. Participant may terminate this Agreement:
(a) upon providing thirty (30) days written notice to Water Tree or the Water Tree Agent, or(
b) in the event of a Force Majeure Event affecting the Water Tree Agent’s performance of this Agreement for more than thirty (30) consecutive days.
1.5. Effect of Termination; Survival.
(a) Expiration or termination of the Agreement will not affect any rights or obligations of the Parties that:
(i) come into effect upon or after expiration or termination of this Agreement; or
(ii) by their nature should apply beyond the Term of this Agreement.
(b) Any notice of termination under this Agreement automatically operates as a cancellation of any and Support services that are scheduled to take place subsequent to the effective date of termination.
(c) Upon the expiration or earlier termination of this Agreement, Participant shall promptly:
(i) return to Water Tree or destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Water Tree’s Confidential Information; and
(ii) permanently erase all of Water Tree's Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Participant shall destroy any such copies upon the normal expiration of its backup files; and
(iii) certify in writing to Water Tree that it has complied with the requirements of this clause.
(d) Subject to Section 7.5(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party's rights, remedies, or defences under this Agreement, at law, in equity, or otherwise.
2. Limited Warranty.
2.1. Limited Warranty. Subject to Section 8.2, Water Tree warrants to Participant that it shall perform the Services and Support using personnel of required skill, experience, and qualifications and in a professional manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. WATER TREE MAKES NO WARRANTY AS TO RESULTS TO BE ATTAINED BY THE PROVISION OF THE AND SUPPORT SERVICES OR USING WATER TREE’S AND SUPPORT MATERIALS.
2.2. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 9.1, WATER TREE MAKES NO WARRANTY WHATSOEVER REGARDING THE AND SUPPORT SERVICES, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. PARTICIPANT ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY WATER TREE, OR ANY OTHER PERSON ON WATER TREE’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9.1 OF THIS AGREEMENT.
3. Limitation of Liability.
3.1. TYPES OF DAMAGES. IN NO EVENT SHALL WATER TREE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE PARTICIPANT OR COULD HAVE BEEN REASONABLY FORESEEN BY THE PARTICIPANT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
3.2. AGGREGATE LIABILITY. IN NO EVENT SHALL WATER TREE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO WATER TREE FOR THE AND SUPPORT SERVICES SOLD HEREUNDER.
4.1. Governing Law. This Agreement and all related documents, including all schedules attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule of any other jurisdiction that would cause the application of the laws of any jurisdiction other than those of the Province of British Columbia.
4.2. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Nation of Canada and the Province of British Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
4.3. Force Majeure.
Water Tree shall not be liable or responsible to Participant, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to Water Tree under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the Water Tree’s reasonable control, including, without limitation:
(a) acts of God;
(b) flood, fire, earthquake, or explosion;
(c) epidemics, pandemics;
(d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest;
(e) government order or law;
(f) actions, embargoes, or blockades in effect on or after the date of this Agreement;
(g) action by any governmental authority;
(h) national or regional emergency; and
(i) strikes, labour stoppages or slowdowns, or other industrial disturbances.
(each a "Force Majeure Event").
4.4. Further Assurances. Each of the parties hereto shall execute and deliver, at the reasonable request of the other party hereto, such additional documents, instruments, conveyances, and assurances and take such further actions as such other party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.
4.5. Entire Agreement. This Agreement, together with all related schedules, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter. The parties have not relied on any statement, representation, warranty, or agreement of the other party or of any other person on such party's behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.
4.6. Notice. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and addressed to the other Party.
Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment), if delivered by email of a PDF document; (c) when sent, if sent by facsimile (with confirmation of transmission) on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day.