A. CLIENT is in the business of marine transportation services.
B. Helm Operations is engaged in the business of providing software and professional services to business enterprises
C. CLIENT desires to retain the services of Helm Operations from time to time (and specifically to modify and enhance the Helm Services in accordance with the Statement of Work(s)) and Helm Operations desires to enter into this Agreement with CLIENT.
D. Concurrently with the execution of this Agreement, CLIENT and Helm Operations are entering into the Project Agreements.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual promises contained herein and other good and valuable consideration, the parties hereby agree as follows:
(a) “Affiliate” means, in respect of an entity, any entity which directly or indirectly controls, is controlled by, or is under common control with such entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of an entity.
(b) “Agreement” means the agreement entitled “Professional Services Agreement” and approved Statements of Work;
(c) “Assistants” means employees of Helm Operations, independent contractors or consultants hired by Helm Operations to perform the services under this Agreement;
(d) “CLIENT Contract Steward” means that person named by CLIENT as having the responsibility and authority to manage this Agreement on behalf of CLIENT;
(e) “CLIENT Project Manager” means a qualified member of CLIENT’s staff whose duties are to act as liaison between CLIENT and Helm Operations;
(f) “Confidential Information” means and includes any written or orally or visually disclosed information relating to the disclosing party’s business identified as “confidential” or which the receiving party should reasonably know is confidential or not generally known to the public, including, without limitation:
(i) all know-how, technology and other proprietary information owned, licensed, used or developed by the disclosing party, including proprietary rights protected by trade secret and other intellectual property rights, and
(ii) all information relating to the disclosing party’s business, the Services, and to all other aspects of the disclosing party’s structure, personnel, operations, financial matters, marketing, commercial strategies, customer lists, customer data, contractual records, correspondence, products, programs, devices, concepts, inventions, designs, methods, data, and items provided to the disclosing party by third parties subject to restrictions on use or disclosure.
(g) “Deliverables” means the services that Helm Operations is to perform or performs, and/or the material that Helm Operations is to produce or produces in accordance with the specifications set out in the applicable Statements of Work;
(h) “Developed Materials” means all materials, specifications, designs, writings, code, products, or other Deliverables that Helm Operations developed or prepared for CLIENT under a Statement of Work or that Helm Operations or its Assistants provided or delivered pursuant to the Agreement, but does not include Pre-existing Materials;
(i) “Helm Operations Project Manager” means a qualified member of Helm Operations’ staff whose duties are to act as liaison between Helm Operations and CLIENT;
(j) “Effective Date” means the date specified as per the effective date on the Order Form;
(k) “Helm Services” means the Helm marine operations services subscribed to by CLIENT as set out in the Subscription Agreement and its related Order Form(s);
(l) “ Subscription Agreement ” means the subscription agreement to be concurrently agreed to by the parties and which deals with the use of the Helm Services;
(m) “Non-Conformity” means the failure of the Helm Services software to perform in accordance with the Documentation;
(n) “Pre-existing Materials” means any materials, code, methodology, process, technique, or intellectual property right developed, licensed or otherwise acquired by Helm Operations or its Affiliates, independent of the Agreement and services to be rendered by Helm Operations under the Agreement;
(o) “Principal Agreement” means this Agreement without its Statement(s) of Work;
(p) “Project Agreements” means the Subscription Agreement, the Support and Maintenance Services Description;
(q) “Tools” means any materials that CLIENT provides to Helm Operations for the performance of the service under the Agreement;
(r) “Statement of Work” means any Statement of Work approved under the Principal Agreement and which said Statement of Work can be amended or replaced from time to time upon the mutual consent of the parties;
(s) “Support Agreement” means the Support and Maintenance Services Description to be concurrently agreed to by the parties and which deals with the support and maintenance of the Helm Services by Helm Operations .
2.1 Services. CLIENT may retain the development services of Helm Operations from time to time on the basis set forth in this Agreement and Helm Operations agrees to render the services to CLIENT in accordance with the terms and conditions of this Agreement.
2.2 Statement of Work. The services to be rendered by Helm Operations to CLIENT under this Agreement will be initiated by CLIENT requesting a Statement of Work pursuant to the following procedures:
(a) All Statements of Work will describe the Deliverables, and costs for the described Deliverables on each Statement of Work.
(b) Helm Operations will respond to a Statement of Work request from CLIENT within a reasonable period of time. If CLIENT accepts the Statement of Work, then Helm Operations and CLIENT will sign the Statement of Work.
(c) The Statement of Work will not take effect until both parties have signed the Statement of Work.
2.3 Performance of Services. Helm Operations will:
(a) control and direct the means, manner and method by which the Deliverables are performed,
(b) closely monitor key Deliverables and budgets, and work diligently to achieve targets within both,
(c) set the conditions upon which the Deliverables are to be provided including the equipment and materials required to perform the services.
2.4 Acceptance Criteria. Each Deliverable will be subject to acceptance testing by CLIENT to verify that the Deliverable satisfies the acceptance criteria, mutually agreed to in writing by the parties and set forth, from time to time, in the Statement(s) of Work.
2.5 Acceptance of Deliverables. CLIENT will approve all Deliverables delivered by Helm Operations pursuant to this Agreement, which meet the acceptance criteria mutually agreed to in writing by the parties and set forth, from time to time, in the Statement(s) of Work.
3 Fees, Expenses, Records, and Taxes
3.1 Fees. The Statement of Work will indicate the services rates and estimates for services performed by Helm Operations to CLIENT.
3.2 Reimbursement of Expenses. Helm Operations will submit to CLIENT for reimbursement all expenses associated with Deliverables and any expenses documentation as Client may require. Reimbursable expenses will include any costs that comply with the following:
(a) reasonable and actual travel and living expenses while on travel status.
(b) vehicle rental when performing any services under this Agreement away from Helm Operations’ office or designated work place. Vehicles will be mid-size or smaller unless otherwise approved by CLIENT.
(c) materials, supplies and other reasonable charges for third party services costing $500.00 or less per item required for the performance of any services under this Agreement. Procurement of materials, supplies and charges for third party services costing more than $500.00 will be reimbursed only if such procurement is approved in writing in advance by the CLIENT.
(d) meals and lodging when performing any services under this Agreement away from Helm Operations’ office as required under a current Statement of Work.
3.3 Invoicing and Payment
a. Helm Operations will submit up to 2 invoices monthly (one invoice detailing the services provided to CLIENT and the other invoice detailing the expenses incurred in connection with such services) , via e-mail for Deliverables as stated in the Statement of Work.
b. CLIENT shall pay interest on any undisputed invoiced amounts which are unpaid after 30 days at a rate of 2% per month (26.82% per annum, effective rate) or the maximum amount allowed by law (whichever is less), from the date such amounts become due and payable.
c. Fees are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise, value-added and other applicable taxes, withholdings, and governmental charges (collectively, “Taxes”). CLIENT shall be solely responsible for the payment of all applicable Taxes, other than taxes on Helm Operations’ income. If Helm Operations pays any such amounts on behalf of CLIENT, CLIENT shall reimburse Helm Operations upon presentation of proof of payment.
4 Helm Operations Personnel
4.1 Independent Contractor; No Agency. Helm Operations is an independent contractor of Client. This Agreement will not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
4.2 Helm Operations’ Assistants. From time to time, Helm Operations may, subject to the terms and conditions set forth in this Agreement, engage Assistants to aid Helm Operations in performing the services under this Agreement. CLIENT will have no relationship with or to such Assistants and such Assistants are not employees, agents, consultants, representatives, assistants or independent contractors of CLIENT. Helm Operations will be fully and solely responsible for the supervision and payment of such Assistants and for all work performed by such Assistants.
5 Intellectual Property Rights
5.1 CLIENT acknowledges that Helm Operations has developed and uses valuable technical and non-technical information, trade secrets, know-how and the like in the supply of the Deliverables. CLIENT agrees that, except for the limited right to use the
Deliverables as set out in this Agreement, and except as provided in the event Helm Operations ceases to complete the Statement of Work, all rights, title and interest in and to the Deliverables, Documentation shall remain vested in Helm Operations.
5.2 CLIENT recognizes and acknowledges the great value of the goodwill associated with Helm Operations’ name and trademarks, and the identification of Helm Operations’ goods or services therewith. CLIENT agrees that it obtains no rights, title or interest of any kind in or to any trademarks, tradenames, logos, service marks or other markings belonging to Helm Operations
5.3 All Developed Materials created under a Statement of Work will be the property of Helm Operations and all title and interest under this Agreement will remain with Helm Operations.
5.4 All Developed Materials will belong exclusively to Helm Operations and Helm Operations will have the right to obtain and to hold in its own name, copyrights, registrations, patents, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.
6.1 Each party agrees to hold all Confidential Information of the other party in strictest confidence, not to make use thereof other than for the performance of this Agreement, to disclose such Confidential Information only to its Representatives who are under an obligation of confidentiality with respect thereto and who require such information for the performance of their duties, and not to disclose such Confidential Information to any third parties, except with the disclosing party’s prior written consent; provided, however, that the foregoing restrictions shall not apply to Confidential Information of the other party:
i. that is now or hereafter in the public domain through no action or failure to act on the part of the receiving party or its Representatives;
ii. that was received by or was available to the receiving party from a third party without any obligation of confidentiality to the disclosing party;
iii. that is independently developed by or for the receiving party by persons who have not had access to the Confidential Information of the disclosing party;
iv. that is disclosed with the written consent of the disclosing party; or
v. that is disclosed pursuant to the requirement of a governmental agency or is required by operation of law, regulation or court order, provided that whenever possible prompt notice is given by the receiving party to the disclosing party prior to such disclosure so that the disclosing party may seek a protective order or other remedy.
6.2 Each party agrees to protect and safeguard Confidential Information of the other party from loss, theft, destruction and inadvertent disclosure using the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable standard of care.
6.3 Each party shall hold the other party’s Confidential Information in trust for the other party and all right, title and interest in and to such Confidential Information shall remain with the disclosing party.
6.4 Upon termination of this agreement, or related statement of work, or otherwise upon the request of a disclosing party, the receiving party will promptly destroy all full and partial copies of the disclosing party’s Confidential Information in its possession or under its control, and certify such destruction in writing; provided, however, that the receiving party may retain one (1) copy for its internal archival purposes only, which copy shall remain subject to the obligations of confidentiality set out in this Section 6.
7 REPRESENTATIONS AND WARRANTIES .
7.1 Mutual warranties. Each party represents and warrants that:
a. it is a company or other legal entity duly organized and validly existing under the laws of its jurisdiction of registration; and
b. it is duly authorized, and has the power and capacity to enter into this Agreement and to observe, perform and comply with the terms of this Agreement.
8 SERVICE WARRANTY.
8.1 Helm Operations represents and warrants that:
a. Helm Operations has or will have the proper skill, training, and background so as to be able to perform in a competent and professional manner the services under the Agreement;
b. the services provided by Helm Operations will be of an industry standard of quality and workmanship.
c. to the best of Helm Operations’ knowledge no Developed Materials delivered by Helm Operations to CLIENT under this Agreement will infringe on or violate any copyright, trademark, patent, or other proprietary or third party rights; and Helm Operations holds all necessary rights to the Developed Materials in order to grant to CLIENT the licenses thereto as provided hereunder;
d. to the best of Helm Operations’ knowledge, no Developed Materials delivered by Helm Operations to CLIENT under this Agreement will contain any scandalous, libelous or unlawful matter or material.
e. Helm Operations has and will comply with all applicable laws in connection with its obligations under this Agreement and any other agreement with CLIENT;
9 EXCLUSION OF WARRANTIES.
9.1 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9, THE DELIVERABLES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HELM OPERATIONS AND ITS THIRD PARTY SUPPLIERS HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER ARISING UNDER STATUTE, FROM A COURSE OF DEALING, USAGE, CUSTOM OF THE TRADE OR OTHERWISE, REGARDING THE SERVICES, THE DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCESSIBILITY, PRIVACY OF FILES OR SECURITY.
9.2 Helm Operations DOES NOT WARRANT THAT THE DELIVERABLES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL BE UNAFFECTED BY BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS, NOR DOES Helm Operations WARRANT THAT CLIENT’S USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET ALL OF THE SUBCRIBER’S REQUIREMENTS; NOTHWITHSTANDING THE FOREGOING, HELM OPERATIONS SHALL ADDRESS AND RESOLVE ANY BUGS, VIRUSES AND ERRORS THAT MAY ARISE AT NO ADDITIONAL COST TO SUBSCRIBER.
9.3 THIS LIMITED WARRANTY GIVES THE CLIENT SPECIFIC LEGAL RIGHTS. THE CLIENT MAY HAVE OTHER RIGHTS, WHICH VARY FROM LOCATION TO LOCATION, DEPENDING UPON THE APPLICABLE LAW OF SUCH LOCATION.
10 INTELLECTUAL PROPERTY INDEMNITY.
10.1 Subject to the limitations of liability contained herein, Helm Operations will defend any claim or action brought against CLIENT alleging that the Deliverables, as supplied to CLIENT, infringe a Canadian or United States patent, copyright or trade secret, and shall indemnify and hold CLIENT harmless against resulting costs and damages awarded against CLIENT, provided that CLIENT: (i) promptly notifies Helm Operations in writing of the existence of claim or action; and (ii) allows Helm Operations sole control of the defence or settlement of the action; (iii) provides such reasonable cooperation as Helm Operations may require at Helm Operations’ sole expense. In no event will CLIENT consent to any judgement, agree to settlement, or do any other act in compromise of the claim or action, without Helm Operations’ express prior consent. CLIENT acknowledges that its failure to comply with the foregoing obligations may compromise CLIENT’s right to recovery under this Section 10. In no event will Helm Operations be liable for the payment of any amounts agreed to in settlement without its express consent.
10.2 If, at any time, Helm Operations becomes aware of a potential infringement by the Deliverables, or if CLIENT is enjoined from its use of the Deliverables due to a proceeding based upon an alleged infringement, then Helm Operations may, at its option and expense, either: (i) procure for CLIENT the right to continue using the Deliverables; (ii) modify the Deliverables such that they are non-infringing and capable of performing as set out in the relevant specifications; (iii) replace the Deliverables with functionally equivalent, non-infringing Deliverables; or (iv) if satisfactory resolution of the matter employing the options described in (i), (ii) or (iii), above, is not possible despite Helm Operations’ reasonable commercial efforts, Helm Operations may terminate the Deliverables and refund any prepaid but unsued portion of the license fees paid in respect thereof.
10.3 Notwithstanding any other provision of this Agreement, Helm Operations will have no liability to CLIENT, and CLIENT shall defend and indemnify Helm Operations and its Representatives, to the extent that an actual or alleged infringement is based upon: (i) a modification to the Deliverables which has not been carried out by Helm Operations; (ii) any use, operation or combination of the Deliverables with any software, materials or data not supplied or approved by Helm Operations; (iii) use of the Deliverables in a manner for which they were not intended or other than as permitted by under this Agreement;
10.4 ENTIRE LIABILITY. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF HELM OPERATIONS WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS BY THE SOFTWARE, SERVICES, DELIVERABLES, DOCUMENTATION, AND RELATED MATERIALS SUPPLIED PURSUANT TO THIS AGREEMENT.
11 LIMITATION OF LIABILITY AND DAMAGES.
11.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW HELM OPERATIONS’ AND ITS RESPRESENTATIVES’ TOTAL COLLECTIVE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND/OR ANY PRODUCTS, SERVICES OR DELIVERABLES DELIVERED OR FAILED TO BE DELIVERED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY CLIENT, NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF $100,000 OR THE TOTAL FEES ACTUALLY PAID BY CLIENT TO HELM OPERATIONS FOR THE SERVICES DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE MOST RECENT CLAIM. IN NO EVENT WILL EITHER HELM OPERATIONS OR CLIENT BE LIABLE IN ANY WAY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE OF SYSTEMS OR EQUIPMENT, DATA, INCOME, BUSINESS, PROFIT, GOODWILL, ANTICIPATED REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHERWISE.
11.2 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DUE TO THE NATURE OF THE INTERNET, CLIENT AGREES THAT HELM OPERATIONS WILL NOT BE LIABLE FOR ANY LOSS, COSTS OR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH: ACCESS OR INTERCONNECTIONS WITH THE HELM OPERATIONS SYSTEM OR THE HELM SERVICES; ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS; LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CLIENT’S CONTENT, DATA, PROGRAMS CONFIDENTIAL INFORMATION OR SYSTEM.
11.3 NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWO (2) YEARS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR OUGHT REASONABLY TO HAVE BEEN DISCOVERED BY, CLIENT.
11.4 THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), PRODUCT LIABILITY, INDEMNIFICATION, FUNDAMENTAL BREACH OR OTHERWISE, AND REGARDLESS OF WHETHER A PARTY AND/OR ITS REPRESENTATIVES KNEW, OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.
11.5 CLIENT AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, WITHOUT WHICH HELM OPERATIONS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND/OR AGREED TO PROVIDE THE SERVICES UNDER THE CURRENT TERMS (INCLUDING FEES).
11.6 BECAUSE THE LAWS OF SOME LOCATIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ALL SUBSCRIBERS.
12 TERM AND TERMINATION .
12.1 Term. Subject to this section, this Principal Agreement will commence on the Effective Date and will remain in effect unless terminated pursuant to this Section 12.
12.2 Termination for Breach. Either party may terminate the Principal Agreement (and any outstanding Statement of Work) at any time in the event of a material breach by the other party that is not remedied after 30 days written notice to the other party thereof.
12.3 Termination for Bankruptcy/Insolvency. Either party may terminate this Agreement immediately following written notice to the other party if the other party:
(a) ceases to do business for 180 days;
(b) becomes or is declared insolvent or bankrupt;
(c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within 90 calendar days;
(d) makes an assignment for the benefit of creditors; or
(e) otherwise acknowledges its insolvency.
12.4 Termination upon Notice. Either party may terminate this Agreement by giving 30 days written notice to the other.
12.5 Payment and Deliverables upon Termination. If either party terminates the Principal Agreement or any Statement of Work:
(a) CLIENT agrees to pay Helm Operations all undisputed expenses and fees incurred by Helm Operations and invoiced to CLIENT in accordance with the terms hereof up to the effective date of termination of the Principal Agreement or the Statement of Work; and
(b) Helm Operations agrees to deliver to CLIENT a copy of Deliverables and Developed Materials created to the effective date of termination of the Principal Agreement or the Statement of Work .
12.6 Rights in Developed Materials. Termination under this Agreement will not affect either Party’s rights in and to all Developed Materials created prior to the effective date of termination.
12.7 Surviving Sections. Sections 5, 6, 7, 9, 10, 11, 13 and 14 of the Principal Agreement will survive the expiration or termination of this Agreement.
13 DISPUTE RESOLUTION / EQUITABLE RELIEF
13.1 Disputes. All disputes, controversies or claims out or related to this agreement, or the breach thereof, whether, tort, statue, or other theory of liability (“Disputes”), shall be resolved in accordance with the following, except where a party requires equitable relief where the party shall be free to proceed in a judicial forum Prior to commencing any legal proceeding under this Agreement, the party desiring to commence the proceeding shall deliver notice (a “Dispute Notice”) to the other party setting forth the nature of the dispute, and request a meeting of senior executives in order to settle the dispute in good faith. Both parties prompltly shall designate at least one senior executive (Vice President or higher) having authority to settle such disputes to meet and discuss the dispute with the other party.
If they do not reach a solution within a period of thirty (30) days (or such other longer period as the parties may agree), then either party may, on written notice to the other party, refer the dispute for settlement by arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association. The costs of the arbitrator will be borne equally by the parties, but they will otherwise bear their respective costs incurred in connection with the arbitration. The parties shall select the arbitrator promptly and use commercially reasonable efforts to conduct the arbitration hearing no later than three (3) months after the arbitrator is selected. The arbitrator may not award punitive or exemplary damages against either party or any other relief in excess of the limitations set forth herein. The judgment and award of the arbitrator will be final and binding on each party. Judgment upon the award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and/or an order of enforcement as the case may be. No action, regardless of form, arising out of or in connection with this Agreement may be brought by CLIENT more than two (2) years after the occurrence of the event giving rise to the cause of action, regardless of whether the CLIENT was aware or ought reasonably to have been aware of the event.
13.2 Equitable Relief. Notwithstanding the provisions of Section 13.1 above, the Parties acknowledge that any breach of this Agreement could cause irreparable harm and significant injury to the other party that may be difficult to ascertain. Accordingly, the Parties agree that Helm Operations will have the right to seek and obtain immediate injunctive relief in any court having competent jurisdiction, to enforce its rights under this Agreement, and without showing or proving any actual or threatened damage. This right shall be in addition to all other rights and remedies that the Parties may have at law and in equity.
13.3 Seat of Arbitration. The seat of arbitration shall be New York City, New York with respect to any Dispute. The language used for the arbitration shall be English. Each Party shall have the right to have its own interpreters, lawyers and legal advisers present through the arbitration.
14 GENERAL PROVISIONS .
14.1 Time. Time is of the essence of this Agreement.
14.2 Assignment. Neither party will assign or transfer this Agreement or any rights or obligations hereunder in whole or in part without the prior written consent of the other party; provided however that Helm Operations or the CLIENT may assign this Agreement to its Affiliates . Such consent shall not be unreasonably denied. This Agreement will ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
14.3 Headings. The headings in this Agreement are inserted for convenience only and do not form part of this Agreement.
14.4 Statements of Work. Approved Statements of Work attached to this Agreement as may be amended and added to from time to time are an integral part of this Agreement as if set out at length in the body of this Agreement.
14.5 Currency. All dollar amounts expressed in this Agreement and attached Statements of Work, unless specified otherwise, refer to lawful currency of United States of America.
14.6 Independent Contractors. The parties are independent contractors. Nothing herein shall be construed to create any legal partnership, joint venture, agency or any other relationship between the parties.
14.7 Non-Solicitation. During the term of this Agreement, and for a period of one (1) year after its expiration or termination, neither party will, directly or indirectly, hire or solicit for hire the other party’s employees, and will not directly or indirectly, whether as principal, agent, or employee of, or in partnership or association with, any person, firm or corporation, or in any manner whatsoever, entice, encourage, induce or attempt to induce or otherwise ask the other party’s employees to leave their current employment.
14.8 Notices. All communications and notices provided for herein shall be in writing and shall be deemed to have been given when delivered personally to the recipient, by email, or by registered or certified mail with return receipt requested, postage prepaid, and addressed to the applicable signatory at the address appearing on the Order Form(s) or at such other address as either party may designate by notice to the other.
14.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes and replaces any agreements or undertakings regarding the subject matter of this Agreement entered into, made or given by the parties prior to the date of this Agreement is deemed to come into force. In the event of a conflict between this Agreement and the Subscription Agreement, the Subscription Agreement supersedes this agreement.
14.10 Construction; Severability If any provision of this Agreement is found to be invalid, illegal or unenforceable it will be severable from this Agreement and the remaining provisions will not be affected thereby and will be valid, legal and enforceable.
14.11 Conflict. In the event of a conflict or inconsistency between a term of the Principal Agreement and one of the applicable Statement of Work, the term set out in the Principal Agreement will prevail.
14.12 Further Assurances. Each of the parties will, upon the reasonable request of the other, make, do, execute or cause to be made, done or executed all further and other lawful acts, deeds, things, devices, documents, instruments and assurances whatever for the better or more perfect and absolute performance of the terms and conditions of this Agreement.
14.13 Amendment. Any alteration or amendment to the terms and conditions of this Agreement must be in writing and duly executed by both parties.
14.14 No Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
14.15 Singular/Plural. Wherever the singular is used it will be construed as if the plural had been used where the Agreement or the parties so require and vice versa.
14.16 Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Delivery of an executed signature page to this Agreement by facsimile will be effective to the same extent as if such party had delivered a manually executed counterpart.
14.17 Force Majeure. Neither party will be liable to the other party for failure or delay in the performance of a required obligation if such failure or delay is caused by labour dispute, strike, earthquake, war, terrorist act, embargo, government act (including any law or regulation), riot, fire, flood, natural disaster, act of God or other similar cause beyond such party’s control, provided that such Party gives prompt written notice of such condition and resumes its performance as soon as possible.
14.18 Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the state of New York. Each party agrees to submit to the exclusive jurisdiction of the courts of state of New York, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.