Legal

The following terms and conditions below (the “Terms”) form a Master Service Agreement (the “Agreement”) between an organization (“Client, Customer” or “You”) and Birmingham Consulting Inc. (“BCI” or “We”), together with the Addendum and Exhibits referenced therein, and any Statement of Work signed by the Parties that references this Agreement. BCI and Customer are each a “Party” and together are the “Parties”.

  1. Definitions
    • 1.1 “Admin User” means an Authorized User who has access to certain additional features and functionalities of the BCI Services to monitor and administer Your Account (defined in Section 2.1 of these Terms).
    • 1.2 “Authorized User” means an employee, contractor, or agent of Customer who is authorized to use the BCI Services and who has access to the BCI Services via a unique username and password under Your Account.
    • 1.3 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
    • 1.4 “Initial Term” means the period following the Services Start Date as described in Section 1 of the Statement of Work.
    • 1.5 “Order” means any Services ordered by You as described in the applicable Statement of Work that references this Agreement and describes the services to be provided by BCI and the fees that will be paid by Customer.
    • 1.6 “Security Event” means an observable occurrence that may have an impact on organizational operations (including mission, capabilities, or reputation).
    • 1.7 “Security Incident” means an act, event or omission that could result in the compromise of information, assets or services.
    • 1.8 “Security Breach” act, event or omission that results in the compromise of sensitive information or assets. This means that there has been unauthorized access, disclosure, destruction, removal, modification, use or interruption of protected and classified information and assets.
    • 1.9 “Services” means the services provided to You by BCI as indicated in the applicable Statement of Work, including the BCI Services, provision of Software and related Support and, as applicable, any professional services set forth in any applicable Statement of Work.
    • 1.10 “Services Start Date” means the date on which the You and BCI mutually agree to commence the provision of the Services as set forth in the Applicable Statement of Work.
    • 1.11 “Service Fees” means the fees BCI charges and You pay for the Services as specified in the applicable Statement of Work.
    • 1.12 “Software” means any and all software and tools (including updates) provided to Your Authorized Users by BCI to facilitate use of or access to the Services.
    • 1.13 “Statement of Work” means any statement of work for professional or other services and software signed by the Parties that references this Agreement and describes the Services to be provided by BCI and the fees that will be paid by Customer.
    • 1.14 “Third Party Software” means the software used in the provision of the Services that has been either licensed to BCI for sublicensing to You, or which BCI facilitates having licensed directly to You.
  2. SERVICES AND SOFTWARE
    • 2.1 We will provide the Services to You and, if provided for in the applicable Statement of Work, Your Affiliate(s) (so long as such Affiliate(s) is not a competitor to BCI) in accordance with the applicable Statement of Work and these Terms; in connection with any Services an Affiliate receives under this Agreement, the Customer and the Affiliate shall be jointly and severally liable for the obligations under this Agreement, including but not limited to payment obligations. As of the Services Start Date You will receive access to a BCI Services account (“Your Account”).  To use the Services, You must link at least one third party email account to Your Account, but may link no more email accounts than total number of Your Authorized Users.  You will keep all information related to Your Account current and promptly notify us of any changes.
    • 2.2 Some features and functionalities of our Services may require Your Authorized Users to use Third Party Software. During the Term, and subject to Your payment of all applicable Service Fees, where Third Party Software is sublicensed by BCI to You, BCI hereby grants You a limited, nonexclusive, nontransferable, non-sublicensable, revocable right and license to use the Third-Party Software solely for the purposes of accessing and using the Services. If we provide You with any downloadable Software under an open-source license, we will only provide such Software that is governed by permissive open-source license(s).
    • 2.3 You understand and agrees such Third-Party Software is provided by and are the sole responsibility of their respective third party provider, and that BCI shall not be held liable for the content of, availability of, or accuracy of any Third Party Software. In the event that Customer is dissatisfied with or incurs damage or loss due to its use of, reliance upon, or inability to use any Third-Party Software, BCI will not be held liable for any such damage or loss.
    • 2.4 We may modify the Services or update or replace the Third-Party Software from time to time without notice to You. We will use commercially reasonable efforts to notify You in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Services or Software.
    • 2.5 You are solely responsible for the acts and omissions of Your Authorized Users, including their use of the Services, Software, and Your Data (defined in Section 3.1 of these Terms). You agree that You will only permit Authorized Users to access the Services and that You and Your Authorized Users will maintain the security of their usernames and passwords. You will notify BCI immediately if You suspect or become aware of any unauthorized use of the Services or if an Authorized User’s username or password is lost or stolen.
    • 2.6 You and Your Authorized Users must not: (a) use the Services to provide the Services or Software to third parties or otherwise reproduce, license, sell, rent, lease, outsource, act as service bureau, or sublicense the Services or Software; (b) except as permitted by applicable law, decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access or derive the source code or other trade secrets from the Services or Software; or (c) interfere with or disrupt, disable, damage, impair, or overburden the Services or Software, including by transmitting viruses or other malicious code.
  3. YOUR DATA
    • 3.1 Any content, materials, software, data, or other information that You or Your Authorized Users provide to BCI through the Services (“Your Data”) is and will remain Your property. You hereby grant BCI a worldwide, limited, revocable, non-exclusive right and license to use and reproduce Your Data solely for the purposes of providing the Services to You, and providing You Support and analysis pursuant to this Agreement. We may also have access to and see Your Data when we provide Support to You or if we provide other assistance or training to You or Your Authorized Users.
    • 3.2 Nothing in this Agreement will restrict BCI from collecting, using and analyzing general information and data from its customers (including You) in provided such information and data is only collected, utilized and analyzed on an anonymized and aggregated manner and for the purposes of improving and enhancing the quality and nature of Services, or to market or publish general information and statistics, provided that BCI does not specifically identify You or disclose any personally identifiable information in the course of collecting, using, analyzing, marketing or publishing that information or data. 
    • 3.3 If Your Authorized Users choose to share Your Data with third parties, You are solely responsible for that disclosure, and what any third parties do with Your Data. Likewise, You are solely responsible for any actions Your Authorized Users take with respect to Your Data, including deleting or corrupting Your Data.  You acknowledge that We are not responsible for the disclosure of Your Data by You or Your agents (including Your Authorized Users), to any third parties.
    • 3.4 Subject to BCI’s obligations regarding Your Data set forth in Section 3.5 of these Terms, You are solely responsible for Your Data, including the content, accuracy and integrity of Your Data and for correcting errors and omissions in Your Data. You acknowledge that BCI has no obligation to monitor any information on the Services and that we are not responsible for the accuracy, completeness, appropriateness, or legality of Your Data or any other information or content You may be able to access using the Services.
    • 3.5 BCI will provide the Services in compliance with applicable laws relating to data protection and privacy. You acknowledge that if You wish to protect Your Data when You are transmitting it to BCI, it is Your responsibility to use a secure encrypted connection to do so.
  4. PAYMENT, TAXES
    • 4.1 BCI will invoice You for amounts due under the Agreement and You will pay all undisputed Service Fees as specified in the applicable Statement of Work. Unless Customer identifies any disputed amounts within fifteen (15) days of receipt of invoice, such invoice shall be deemed undisputed.  In the event of a dispute, the Parties agree to work together in good faith to resolve such dispute.  If the dispute is regarding a portion of an invoice, the undisputed portion shall remain due and payable in accordance with the Terms of this Agreement.
    • 4.2 You will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Services You purchase. BCI will pay all taxes on its income and all taxes and insurance associated with its personnel.
    • 4.3 After the Initial Term, the Service Fees are subject to change and may be changed upon e-mail notice to You at least thirty (30) days prior to the start of any Renewal Term (as defined below).
  5. TERM AND TERMINATION; SUSPENSION
    • 5.1 This Agreement will commence on the Services Start Date of the initial Statement of Work and, subject to Section 5.2, will continue for the Initial Term, after which, subject to Section 5.2 of these Terms, this Agreement and the initial Statement of Work will automatically renew for successive terms of twelve (12) months each (each a “Renewal Term”, and together with the Initial Term, the “Term”). Additional, but separate Statements of Work for Services will auto-renew beginning on the anniversary of such Statement of Work’s applicable Services Start Date.
    • 5.2 Except as otherwise expressly permitted in this Agreement, this Agreement may only be terminated as follows: (A) either Party (“Terminating Party”) may terminate this Agreement at any time, immediately upon written notice to the other, if: (i) the other Party attempts to assign this Agreement or delegate any obligation under the Agreement, except as otherwise permitted in Section 11.1 of these Terms; (ii) ownership of the other Party, in full or in part, is  acquired by a third party such that the other Party is acquired by or becomes controlled by, such third party (or group of parties); or (iii) any assignment is made of the other Party’s business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other Party, or if a receiver or similar officer is appointed to take charge of all or part of the other Party’s property, or if the other Party is adjudicated as bankrupt; (B) either Party may terminate this Agreement upon written notice to the other if the other Party is in breach of any material term or condition of this Agreement and the breaching Party fails to cure the breach within thirty (30) days of receipt of notice of that breach; (C) You may terminate this Agreement and/or any Statement of Work during the Initial Term or a Renewal Term, as the case may be,  upon written notice to Us, which notice is given at least ninety (90) days prior to the end of the applicable then-current Initial Term or Renewal Term, as the case may be; or (D) either Party may terminate the autorenewal of this Agreement and/or any Statement of Work upon written notice to the other Party, which notice is given at least ninety (90) days prior to the end of the applicable then-current Initial Term or Renewal Term, as the case may be.
    • 5.3 In addition to any other remedies available at law or in equity, BCI will have the right, in its sole discretion, to immediately suspend Your or any of Your Authorized Users’ access to the Services in the event of (i) acts or omissions of Customer or its Authorized Users not in compliance with the terms of this Agreement; or (ii) events beyond BCI’s Immediate Control.  We will use commercially reasonable efforts to give You prior e-mail notice of suspension under this Section, and we will resume the Services as soon as possible once the issue necessitating suspension is resolved. We will not be liable to You for any loss, damage or inconvenience suffered as a result of any suspension, unless such suspension is necessitated due to BCI’s breach of its warranty under 7.1 (ii).
    • 5.4 Upon termination of this Agreement, BCI will cease providing the Services and promptly invoice Customer for any unpaid amounts owed, and Customer will pay BCI for all Services rendered and expenses incurred prior to the effective date of termination. To the extent such termination is the result of a material, uncured breach by BCI, You are entitled to a pro-rata refund, as of the effective date of the termination, of any prepayment made by you for any Services not yet performed. BCI will, after sixty (60) days following termination of this Agreement, irretrievably delete Your Data. To the extent termination is not due to Your material, uncured breach of this Agreement (including but not limited to non-payment of any invoice), BCI will provide You with access to Your Data during the sixty (60) days following termination, solely for the purpose of downloading Your Data to Your own data storage systems, if You have given written notice prior to the end of such sixty (60) day period of your request to access Your Data. Excepted from the foregoing is any of Your Data permanently deleted (i) in order to comply with applicable law, (ii) to avoid a security incident. We reserve the right to defer the deletion of the data to the extent and for the duration that any data or copies thereof cannot be reasonable expunged from BCI systems. For such retention or deferral periods, the provisions of this agreement shall continue to apply to such data. BCI reserves the right to charge Client for any reasonable costs and expenses incurred by BCI in deleting the data pursuant to this clause. You acknowledge that if Your access to the Services is suspended or the Agreement is terminated, You will not have access to Your Data stored on the Services during any period of suspension, or at any time following sixty (60) days after the effective date of such termination. The foregoing notwithstanding, any refund of Service Fees whatsoever under this Agreement shall exclude any one-time professional Service Fees or Service Fees and expenses related to training, and shall be less any Service Fees for Services to be paid in arrears, which have been provided by BCI as of the effective date of the related termination, but which have not yet been paid by Customer.
  6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
    • 6.1 Except as otherwise expressly agreed to by both parties in a separate Non-Disclosure Agreement (NDA), during the Term and for a period of five (5) years after termination of the Agreement (except for trade secrets, which shall be held in confidence for so long as they constitute trade secrets, and confidentiality obligations as required by applicable law), each Party (the “Receiving Party”) that receives Confidential Information (as defined below) of the other Party (the “Disclosing Party“) will not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees, contractors, or representatives of the Receiving Party with a need to know for purposes of this Agreement and who are subject to confidentiality obligations no less stringent than the terms of this Agreement (“Representatives”), any Confidential Information disclosed to the Receiving Party by or on behalf of the Disclosing Party.  The Receiving Party will safeguard disclosure of such Confidential Information to the same extent that Receiving Party safeguards its own Confidential Information of a similar nature, but in any case will at a minimum use reasonable care.  Each Party shall be responsible for any breach of its confidentiality and non-use obligations by its Representatives.  Notwithstanding the foregoing, either Party may disclose the terms and conditions of this Agreement pursuant to the due diligence requests of a proposed merger, acquisition, financing or securities transaction so long as such parties receiving such Confidential Information are subject to confidentiality obligations no less stringent than the terms of this Agreement.  Upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy, certifying in writing to the Disclosing Party the destruction of such Confidential Information, the Disclosing Party’s Confidential Information in its possession or under its control.
    • 6.2 Confidential Information” means all information, material and data of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary.  Confidential Information includes, without limitation, the terms and conditions of this Agreement, the Services and Software, Your Data, and all information relating to the Disclosing Party’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.
    • 6.3 These confidentiality obligations will not apply to any information which (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives; (ii) was in Receiving Party’s possession prior to the time it was received from Disclosing Party or came into Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and not subject to any obligation of confidentiality or restriction on use; (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party will, unless prohibited by law, notify the Disclosing Party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
    • 6.4 Any use or disclosure of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the Disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
    • 6.5 In the event of any conflict or inconsistency between a provision in these Terms and in a separate Non-Disclosure Agreement, the stricter of the two will take precedence and prevail.
  7. WARRANTIES
    • 7.1 BCI warrants that: (i) it will provide the Services in a professional manner, consistent with recognized industry standards and good commercial practices ; (ii) it will comply with all applicable law, including privacy laws in all applicable jurisdictions, and be duly licensed and otherwise authorized to provide the Services; and (iii) it has the authority and right to enter into this Agreement and to observe and perform its respective obligations contained in this Agreement.
    • 7.2. Customer warrants that: (i) it will comply with all applicable law; and (ii) it has the authority and right to enter into this Agreement and to observe and perform its respective obligations contained in this Agreement.
    • 7.3 WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BCI DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY.
  8. INTELLECTUAL PROPERTY
    • 8.2 You acknowledge that, as between the Parties and except as licensed in Section 2.2 of these Terms, BCI owns and retains all right, title and interest in the Intellectual Property Rights in the Services and Software.  Except as licensed under Section 3 of these Terms, You own and retain all right, title, and interest in the Intellectual Property Rights in Your Data.  “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future. 
    • 8.3 You acknowledge that information and content accessible through the Services, including the software provided in connection therewith, may be protected by Intellectual Property Rights of third parties. The Services may contain links to websites or resources of others; however we do not endorse and are not responsible or liable for the accuracy, availability, content, products, or services of any third party. You are solely responsible and liable for Your use of any third-party websites and any third party content or information You copy, share, or download while using the Services.  We will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us.
  9. INDEMNIFICATION AND SECURITY EVENT, INCICENT, BREACH
    • 9.1 BCI will defend, indemnify and hold harmless Customer and its officers, directors, employees, shareholders, agents, legal representatives, subsidiaries, Affiliates, successors and permitted assigns from and against any claim, action, demand or proceeding by a third party (collectively “Claims”) resulting in liability, direct damages, cost, loss or expense, including court costs and reasonable attorney’s fees, and fines and penalties imposed by any governmental entity or authority (collectively “Losses”) to the extent they result from (a) infringement or misappropriation of a third party’s Intellectual Property Rights by the Services or Software; or (b) a violation by BCI of Section 3.5 of these Terms.  If a Loss is found by a court of competent jurisdiction to have been caused in part by You, then Our liability hereunder will be reduced by the amount that is attributable to You.  Notwithstanding the foregoing, we shall have no liability under this section to the extent that an alleged infringement of Intellectual Property Rights arises from (i) use of the Services and/or Software in combination with other equipment or software not provided or approved by us in writing, if such claim would have been avoided but for such combined use; (ii) any modification to the Software made by You or any other third party not approved by us in writing or permitted under this Agreement; (iii) Your failure to install any Software updates provided by us; or (iv) use of the Services and/or Software other than in the manner permitted or authorized under this Agreement. In the event that Customer’s right to continue using the Services and/or Software are likely to be enjoined in our sole discretion we may (A) attempt to obtain the right for You to continue to use the Services and Software; or (B) replace or modify the Services and/or Software so that they no longer infringe but function substantially equivalently or (C) if neither (A) or (B) is possible, we shall have the right to terminate this Agreement and the license granted hereunder, and within thirty (30) days of the return of all Confidential Information to us by You, and return of Your Data to You, refund to Customer all unearned fees paid by Customer, if any, for any Services not yet performed. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF BCI TO CUSTOMER, AND CUSTOMER’S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
    • 9.2 Customer will defend, indemnify and hold harmless BCI and its officers, directors, employees, shareholders, agents, legal representatives, subsidiaries, Affiliates, successors and permitted assigns from any Claims resulting in Losses to the extent they result from (a) a claim that Your Data infringes upon or misappropriates a third party’s Intellectual Property Rights; or (b) a violation by Customer of Section 2.4 of these Terms.
    • 9.3 The Party seeking indemnification under this Agreement will: (i) give the indemnifying Party prompt written notice of the Claim, (ii) tender to the indemnifying Party control of the defense and settlement of the Claim, and (iii) cooperate with the indemnifying Party in defending or settling the Claim.  The indemnified Party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice.  Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Party’s prior written consent, which may not be unreasonably withheld.
  10. LIMITATIONS OF LIABILITY
    • 10.1 IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
    • 10.2 EXCEPT FOR A PARTY’S RESPECTIVE CONFIDENTIALITY OBLIGATIONS, and INDEMNIFICATION OBLIGATIONS, The aggregate liability of EITHER PARTY for all claims relating to the Services or connected with this Agreement, regardless of the damages theory, will not exceed the fees paid or owing to BCI under the applicable STATEMENT OF WORK in the SIX (6) months preceding the date the claim arose. BCI will not be liable for any damages incurred by Customer TO THE EXTENT ARISING FROM any unauthorized access resulting from the actions of CUSTOMER or any third party other than BCI’s representatives.  THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS:  (A) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (B) COMPANY’S ABILITY TO OFFER AND CUSTOMER’S ABILITY TO PURCHASE SERVICES OR ANY PORTION THEREOF UNDER THIS AGREEMENT WOULD BE IMPACTED .
    • 10.3 Customer acknowledges that BCI: (i) does not assume responsibility for the security of your network; (ii) does not dictate security policy except where specifically part of a Service or Services, as applicable;  and (iii) has not been outsourced network or other security obligations by Customer; Customer acknowledges that certain of the Services, while highly useful in increasing security posture, are not a substitute for strong overall corporate security policy which remains solely within the Customer’s purview. In circumstances described as a security event, incident, or breach we will liaise with the third-party providers of Software to ensure Customer is getting the full capability of the applicable security tools. Should we render further assistance it will be covered in a separate Statement of Work. If the circumstance is a result of third-party software included in the applicable Services, BCI is not responsible for such circumstance. Customer agrees to keep the Services uniform across Customer’s user base and devices. Customer agrees that it is solely responsible for maintaining a full recoverable backup of its computer systems and agrees to maintain an immutable, easily recoverable backup. BCI DOES NOT PROVIDE OR GUARANTEE ANY STANDARD OR LEVEL OF SECURITY.
  11. GENERAL
    • 11.1 Neither Party may assign this Agreement, or any of its rights or obligations under the Agreement, without prior written consent of the other Party, provided, however that either Party may assign its rights and obligations to any of its majority-owned Affiliates or subsidiaries, or to any successor in interest to all or substantially all of such Party’s business or assets associated with the Services, provided that such successor is not a competitor of the other Party. 
    • 11.2 BCI and Customer are independent contractors and this Agreement will not establish any relationship of partnership, employment, agency, joint venture, or franchise between BCI and Customer.  Neither Party will have authority, and will not represent that it has any authority, to bind the other.
    • 11.3 Except as otherwise expressly set forth in these Terms, all notices given to the Parties under the Agreement will be in writing and will be given by nationally recognized overnight courier service, certified mail (return receipt requested), email with read receipt confirmation, facsimile with electronic confirmation or personal delivery, if to Customer at the applicable address indicated on the applicable Statement of Work.
    • 11.4 This Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its conflicts of law rules.  Any legal proceeding arising out of or relating to this Agreement will be brought in applicable courts located in Toronto, Ontario. Each Party consents to the exclusive jurisdiction and venue of such courts. The prevailing party in any legal proceeding shall be entitled to recover their reasonable attorneys’ fees and costs, and You will also pay all costs incurred by BCI to collect undisputed amounts due, including reasonable attorneys’ fees, whether or not litigation is commenced.
    • 11.5 With your written consent, BCI may identify Customer as such, in general listings of customers that BCI may make available on its website or in promotional or marketing materials.
    • 11.6 If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired. A Party does not waive any right under this Agreement by failing to insist on compliance with any term or by failing to exercise any right under this Agreement. Waiver of any provision of this Agreement is effective only if it is written and signed by the Party granting the waiver and will not imply a subsequent waiver of that or any other provision of this Agreement.
    • 11.7 Except as otherwise set forth in this Agreement, the rights and remedies of the Parties under this Agreement are cumulative, and either Party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity.
    • 11.8 The section headings of this Agreement are for convenience only and have no interpretive value.  Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms like “only” or “solely.” This Agreement may be executed by provision of original signatures, or electronically via the DocuSign platform or via facsimile, and in counterparts, which together will constitute one and the same agreement.
    • 11.9 The rights and obligations of a Party which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes will survive any termination of this Agreement.
    • 11.10 Neither Party will be liable for any delay or default in its performance of any obligation under the Agreement (other than a payment obligation) caused directly or indirectly by fire, flood, act of God, pandemic, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond such Party’s reasonable control (collectively, “Force Majeure Events”). This provision will in no way impair either Party’s right to terminate this Agreement.
    • 11.11 We reserve the right, at our sole discretion, to modify and replace these Terms at any time. If a revision is material, we will make reasonably efforts to provide at least thirty (30) days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Services after those revisions become effective, you agree to be bound by the revised terms. The most current version of these Terms can be found on BCI’s website at birmingham.ca/legal.
    • 11.12 This Agreement constitutes the complete and final agreement of the Parties pertaining to the Services, and supersedes the Parties’ prior agreements, understandings and discussions relating to the Services. In the event of any conflict or inconsistency between a provision in these Terms and in a Statement of Work, the provision in the Statement of Work will take precedence and prevail.