TERMS AND CONDITIONS
RED JAR ENERGY PARTNERS INC.
STANDARD TERMS AND CONDITIONS OF SERVICE
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Any general terms and conditions proposed by the Client are rejected explicitly. Whenever the contents or interpretation of the Purchase Order, Engagement Letter, and/or these Business Terms conflict, the first-mentioned document shall prevail.
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Definitions:
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“Affiliate” means any entity which is controlling, controlled by, or under common control with, the party providing or accepting a purchase order, binding quote, or party to the Engagement Letter, as applicable.
"Business Terms" means the terms set out in this document.
"Claim" means any claim or proceeding of any nature (whether in contract, tort, breach of statutory duty or otherwise and including, but not limited to, a claim for negligence).
"Client" means the natural person or legal entity which enters into the Engagement Letter.
“Client Communications” means any information, documents, or other communications provided by Red Jar Entities under an Engagement whether in writing or otherwise, including, without limitation, any reports (including, without limitation, the final written report, if any, on the Services performed under the Engagement) or memoranda issued by any Red Jar Entity, including, without limitation, documents, communications, advice, if any, and any drafts thereof, any draft or final reports or memoranda, whether in writing or otherwise.
“Confidential Information” means any information, trade secrets or other proprietary information which is either designated as confidential or is by its nature confidential, including Client Communications and Deliverables.
"Engagement" means the Engagement Letter or purchase order together with these Business Terms.
“Controller” means the natural person or legal entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
"Deliverables" means any deliverables and results identified in the Engagement Letter to be provided to the Client under the Engagement.
"Red Jar" means Red Jar Energy Partners Inc.
“Red Jar IP” means works of authorship, materials, information, technologies, including web-based technologies and algorithms, calculation methods, ideas and tools, and trade secrets and other intellectual or industrial property which Red Jar owns, is licensed to or developed by any Red Jar Entity and used in connection with the performance of Services, including any modifications or enhancements thereto and derivative works based thereon.
“Engagement” means the Engagement Letter or purchase order, as applicable together with the Business Terms.
"Engagement Letter" means the engagement letter entered into between Client and Red Jar which incorporates these Business Terms and any appendices.
"Losses" means any losses, Claims, liabilities, damages, costs or expenses in any way relating to or arising out of the Engagement or the Services.
“Other Recipients” means any and each person or organization as identified in the Engagement Letter (other than the Client) or later agreed in writing between Red Jar and the Client as a recipient of Deliverables or Client Communications.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Processor” means a natural person or legal entity which processes Personal Data on behalf of the Controller.
“Professional Advisor” means all professional advisors of the Client rendering professional advice to the Client for whom the contents of any Client Communications produced by Red Jar may be relevant in the course of rendering their advice to the Client. The term “Professional Advisor” does not include, among others, lenders or other financial institutions participating in or considering participating in any financing relating a transaction to which the Engagement Letter may refer.
"Services" means the services and Deliverables described in the Engagement Letter.
“Subcontractor” means a third party (other than a Red Jar Entity) to whom Red Jar subcontracts any or part of the Services.
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1.Applicability and Entire Agreement
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(a) These Business Terms shall be applicable to all legal relationships between the Client and Red Jar, unless the applicability of these Business Terms is excluded or restricted by law, regulations or written agreement.
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(b) The Engagement constitutes the whole agreement between the Client and Red Jar in relation to the Services. Nothing discussed or occurring prior to execution of the Engagement Letter forms part of the Engagement unless as specifically set out in the Engagement Letter. The Engagement supersedes any previous agreement, proposal, understanding or communication, written or oral, relating to its subject matter. No variation to an Engagement shall be effective unless it is documented in writing, provided, however, that the scope of Services set forth in the Engagement Letter may be changed by agreement of the parties in writing, including by e-mail or facsimile. If Red Jar has already started work (e.g. by gathering information, project planning or giving initial advice) then the Client agrees that the Engagement is effective as of the start of such work and the Client shall compensate Red Jar for its efforts even if no Engagement becomes effective.
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(c) The Engagement shall be effective as of the moment the Engagement Letter is signed by the Client and Red Jar, and – if applicable – shall be effective retroactively as from the effective date mentioned in the Engagement Letter or the date Red Jar has started its performance.
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(d) The parties shall be at liberty to prove that the agreement has been concluded in another manner.
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(e) The Engagement is between the Client and Red Jar only. Red Jar may subcontract any Services under the Engagement to any other Red Jar Entity or, with the consent of the Client, to any Subcontractor. Red Jar shall remain obligated for performance of the Engagement notwithstanding any subcontracting.
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(f) Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co- owner.
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(g) To the fullest extent possible under applicable law, no Red Jar Entity (except Red Jar) nor any Subcontractor will have any liability to the Client and the Client will not bring any Claim in any way in respect of or in connection with the Engagement against any Red Entity or any Subcontractor, other than Red Jar. Subcontractors are intended third-party beneficiaries of the Engagement. The Engagement can be varied without any third party's consent.
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(h) If the Client and the beneficiary of our services are separate legal entities – including, without limitation, natural persons – and either is an Affiliate of the other, the Client warrants and represents that the (other) party or parties having an interest in the Services accept the terms and conditions of the Engagement fully, failing which the Client shall indemnify and hold Red Jar harmless from and against all Losses connected with the breach of such warranty or representation.
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2.Parties’ responsibilities
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2.a Responsibilities of the Client
(i) The Client is responsible for determining that the scope of the Services is appropriate for its needs.
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(ii) The Client shall cooperate with Red Jar and its Subcontractors (where applicable) in the performance of the Services, including, without limitation, providing reasonable facilities and timely access to data, information, personnel and, if applicable, the premises of the Client. The Client shall be responsible for the performance of its personnel and agents, for the timeliness, accuracy, lawfulness and completeness of all data and information (including all financial information and statements) processed and provided to Red Jar, or put at its disposal, by or on behalf of the Client and for the implementation of any advice provided as part of the Services. Red Jar may use the information and data provided by the Client or others on behalf of Client and rely on its accuracy, completeness and lawfulness without audit or verification.
Red Jar’s performance shall be dependent upon the timely performance of the Client’s responsibilities under the Engagement and timely decisions and approvals of the Client in connection with the Services. Red Jar shall be entitled to rely on all decisions and approvals of the Client. The Client shall be obliged to inform Red Jar forthwith of facts and circumstances that may be of importance in connection with the performance of the Services.
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(iii) The Client shall be solely responsible for, among other things:
(a) making all management decisions and performing all management functions;
(b) designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably within senior management to oversee the Services;
(c) evaluating the adequacy and results of the Services on time and in full;
(d) accepting responsibility for the results of the Services;
(e) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities; and
(f) complying with all applicable legislation and regulations applicable to the Client and its activities.
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(iv) The Client shall be responsible for compliance with all applicable legislation and regulations in the area of protection of privacy and data (or Personal Data) including where the Client provides Red Jar with – or puts at Red Jar’s disposal – data (or Personal Data) of its personnel, its clients or other third parties, even if such data (or Personal Data) originates from third parties or is provided to Red Jar or put at Red Jar’s disposal by third parties at Client’s request.
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(v) Unless the Engagement Letter specifies other arrangements, the Client agrees that any Deliverables will be deemed accepted by the Client (and the Services, or the relevant part of them complete) within 30 days of their delivery in final form or when the Client first makes use of them in its business, whichever comes first.
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2.b Responsibilities of Red Jar
(i) Red Jar solely undertakes reasonable efforts under the Engagement. Red Jar warrants that it shall perform the Services in good faith and with due professional care. Red Jar disclaims all other warranties, either express or implied.
(ii) Red Jar will use reasonable efforts to supply the Services and deliver the Deliverables in accordance with any timetable and specifications referred to in the Engagement Letter or otherwise specified by the parties in writing. However, unless both parties specifically agree otherwise in writing, all dates given by Red Jar or specified by the Client for the Services are intended for planning and estimating purposes only and are not contractually binding.
(iii) Except as specifically agreed to in writing, the Services shall not include in any legal, financial planning or tax advice and Red Jar does not assume any or liability responsibility for any legal or financial consequences or reporting with respect to the Services or subject matter thereof.
(iv) In providing the Services, Red Jar may discuss ideas with the Client orally or show the Client drafts of Deliverables. To the extent that the content of such drafts or oral advice is finalized and confirmed to the Client in writing, such writing shall supersede any previous drafts or oral advice. Red Jar shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of such drafts or oral advice.
(v) Red Jar shall not be required or deemed to have knowledge of any information known to other professionals of Red Jar or other Red Jar Entities not involved in performing the Services under the relevant Engagement or not provided to Red Jar for or on behalf of Client.
(vi) Red Jar has no responsibility to monitor events occurring after the agreed upon end date or date of completion of the Services nor to update any Deliverable unless the parties have agreed otherwise in writing explicitly.
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3.Compensation and Payment of Invoices
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(a) Red Jar shall be entitled to compensation as agreed upon in the Engagement Letter and, unless explicitly agreed otherwise in writing, this compensation shall not depend on the outcome of the Services.
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(b) Overhead charges, hours of travel, travelling and travel related expenses, and other Engagement related costs incurred by Red Jar may be charged separately to the Client, unless agreed otherwise in writing explicitly. Out-of-pocked expenses shall be invoiced at the actual amount plus a 15% administrative charge.
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(c) Red Jar adjusts its fees for services where charged on the basis of time on at least an annual basis. Where Red Jar increases its time based fees for services during the course of an Engagement, unless otherwise agreed, Red Jar’s revised rates for service will apply 30 days after notice is first given to Client of any increase. Client may, in such circumstances, have the right to terminate any Engagement.
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(d) Red Jar may require Client to pay and maintain a retainer on deposit with Red Jar. Red Jar is authorized and directed to draw from any such retainer to pay and satisfy any invoice for Service. If requested, Client will replenish such retainer within ten (10) days. Red Jar’s invoices are due and payable by the Client upon presentation. For invoices upon which payment is not received within thirty (30) days of the invoice date, Red Jar reserves the right to charge interest at the rate of two percent (2%) per month compounded, monthly, until paid in full. In in addition to the fees, Client is responsible and will pay with each invoice all taxes, such as goods and services tax, harmonized sales tax, other sales and use taxes, and any similar tax, imposed on or in connection with the Services, other than Red Jar’s income and property taxes. In the event that Client fails to pay in full any invoice when due, Red Jar may, in addition to any other remedies available to Red Jar at law our under the Engagement, suspend or withhold Services or any Deliverables.
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(e) Any estimate of the fees involved in the Services will be based upon Red Jar's assessment of the work involved, and subject to any assumptions as set out in the Engagement Letter. Unless Red Jar has agreed otherwise in the Engagement Letter, Red Jar's fees may be adjusted, for example, if the Services prove more complex or time consuming than expected.
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(f) In the case of a jointly conferred engagement, the Clients shall be jointly and severally liable for payment of the invoice amount.
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(g) Red Jar shall be entitled to require that the Client provides (supplementary) security in a form to be determined by Red Jar. If the Client fails to provide the required security, Red Jar shall be entitled, without prejudice to its other rights, to suspend further performance of the Engagement with immediate effect, and everything the Client owes to Red Jar for whatever reason shall be forthwith due and payable.
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4.Term and Termination
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(a) Unless terminated sooner in accordance with its terms, the Engagement shall terminate once the Services have been performed.
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(b) Unless agreed otherwise in the Engagement Letter, Parties may not terminate the Engagement which is entered into for a definitive period of time or for the duration of a project.
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(c) The Engagement entered into for an indefinite period of time may be terminated by either party at any time, without cause, by giving written notice to the other party not less than 30 days before the effective date of termination.
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(d) Notwithstanding paragraphs 4 (b) and 4 (c), either party may terminate the Engagement by written notice to the other party on or at any time after the occurrence of any of the following events: (i) a payment default under the Engagement not remedied within three (3) days, (ii) a material breach, other than a payment default, by the other party of an obligation under the Engagement and, if the breach is capable of remedy, the defaulting party failing to remedy the breach within 30 days of receipt of notice of such breach, (iii) immediately by either party if the other party ceases to carry on business, or becomes insolvent or bankrupt, or makes an assignment in favour of its creditors or a proposal under the Bankruptcy and Insolvency Act (Canada), or if the business or property, or any part thereof, of either of the parties is placed in the hands of a creditor, a receiver, a receiver manager, an agent or trustee in bankruptcy, by voluntary act or otherwise.
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(e) Termination of the Engagement will have no retroactive effect. Upon termination of the Engagement, the Client will compensate Red Jar under the terms of the Engagement Letter for the Services performed and expenses incurred through the effective date of termination. Upon termination, any amounts invoiced in connection to Services performed prior to the termination shall be due and payable immediately and, once paid, the remaining amount of any amount retainer shall be promptly returned to Client.
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5.Property and Intellectual Property Rights
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(a) Notwithstanding the provisions under (b) and (c) of this clause, Red Jar reserves all intellectual property rights with regard to Red Jar IP and Deliverables that have been used and/or developed in the context of the execution of the Engagement and in respect of which Red Jar has or can enforce any intellectual property rights.
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(b) Upon full and final payment to Red Jar hereunder, the Deliverables will become the property of the Client in their physical form and the Client may use them subject to the other provisions of the Engagement for the purpose for which the Deliverables were supplied, provided that, it being agreed and understood that no person or entity may rely on the Deliverables other than the Client.
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(c) Unless otherwise agreed, Red Jar grants to Client - upon full and final payment to Red Jar hereunder - a perpetual, royalty- free, worldwide, non-exclusive and non-transferable license to use Red Jar IP contained in or required for the use of Deliverables and Client Communications solely for the purpose for which the Deliverables were delivered.
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(d) Red Jar does not agree to any terms that may be construed as precluding or limiting in any way its right to (i) provide consulting or other services of any kind or nature whatsoever to any other person or entity as Red Jar in its sole discretion deems appropriate or (ii) develop for itself, or for others, materials that are competitive with or similar to those produced as a result of the Services, irrespective of their similarity to the Deliverables, subject to the confidentiality obligations set forth in Clause 8 of these Business Terms.
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(e) Any intellectual property and other propriety rights in the material and data provided by the Client to Red Jar for performing the Services shall remain the property of the Client.
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6.Limitation of Liability
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(a) Nothing in the Engagement shall exclude or restrict (or prevent a Claim being brought in respect of); (i) any liability finally judicially determined to arise primarily from the willful misconduct or gross negligence of Red Jar; or (ii) any other liabilities which cannot lawfully be limited or excluded, save to the extent permitted by law.
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(b) The Client agrees that in the performance of Services under the Engagement, Red Jar shall not be liable to the Client for any Losses for an aggregate amount in excess of the fees paid by the Client to Red Jar under the relevant Engagement. Where the relevant Engagement continues for more than 12 months the abovementioned fees shall be calculated over the 12- month period immediately preceding the arising of the Losses.
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(c) In no event shall Red Jar, any Subcontractor or Red Jar Entity be liable for any limited use or loss of data that could have been prevented by Client executing adequate and proper back-up and storage procedures in line with common market practice, contracts, goodwill, revenues or profits (whether or not deemed to constitute direct Losses) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to the Engagement or the Services.
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(d) Red Jar, Subcontractors and Red Jar Entities will not be liable for Losses arising as a result of the provision of false, misleading or incomplete information or documentation, noncompliance with applicable legislation or regulations in the area of protection of privacy and Personal Data within the Client’s sphere of responsibility or the withholding or concealment or misrepresentation of information or documentation by any person other than Red Jar, a Red Jar Entity or a Subcontractor.
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(e) In circumstances where all or any portion of the other provisions of this paragraph 6 are finally judicially determined to be unenforceable, the aggregate liability of Red Jar and any other Red Jar Entity or Subcontractor for any Loss shall not exceed an amount which is proportional to their relative responsibility for the Losses to which the Claim relates taking into account the contributory negligence (if any) of the claimant and the responsibility and/or liability of any third party and the benefits received or intended to be received by the respective parties under the Engagement.
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7.Limitation on Actions
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Any complaints about nonperformance in the provision of the Services shall be brought forward by the Client in a timely fashion. No action, regardless of form, relating to the Engagement or the Services, may be brought by the Client later than the earlier of (a) one year after the cause of action has accrued under applicable law and (b) one year from the date of termination of the Engagement.
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8.Confidentiality
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(a) To the extent that, in connection with the Engagement, either Red Jar or the Client (the “receiving party”) comes into possession of Confidential Information, it shall not disclose such Confidential Information to any third party without the disclosing party’s consent except to the Client’s or Red Jar’s legal advisors solely for the purpose of obtaining legal advice regarding its legal position, or as may be required by law, regulation, judicial or administrative process (including, without limitation, regulatory and investigatory proceedings), or to the extent that such Confidential Information:
(i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by the receiving party in breach hereof,
(ii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party which the receiving party believes after due inquiry is not prohibited from disclosing such information to it by obligation to the disclosing party,
(iii) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or
(iv) is developed by the receiving party independently of any disclosures made by the disclosing party to the receiving party of such information. In satisfying its obligations under this paragraph 8(a), each party shall maintain the other’s Confidential Information in confidence using at least the same degree of care as it employs in maintaining in confidence its own Confidential Information, but in no event less than a reasonable degree of care.
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(b) The Client consents to Red Jar disclosing Confidential Information
(i) to any Red Jar Entity and to any Subcontractor and
(ii) to its auditors, legal counsel, insurers and professional advisors, in each subject to their agreement to or being bound by professional standards to maintain the confidentiality of Confidential Information.
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(c) In the performance of the Services, any Red Jar Entity or any Subcontractor may communicate or discuss the affairs of the Client with the other advisers of the Client and may do so free from any obligation of confidentiality.
(d) In connection with performing the Services, Red Jar may develop or acquire general knowledge, experience, know-how, skills and ideas that are retained in the memory of its personnel. Any Red Jar Entity may use such general knowledge, experience, know-how, skills and ideas. The Client agrees that Red Jar may use Information received from the Client or – at the Client’s request - from a third party, as part of research and advice, including, without limitation, benchmarking services and that Red Jar may disclose such information to other Red Jar Entities for this same use, always provided that the information is rendered anonymous and duly de-identified.
(e) Nothing contained in the Engagement will prevent or restrict any Red Jar Entity from providing services to other clients (including services which are the same or similar to the Services) even if those other clients’ interests are in competition with the Client, provided that Red Jar is able to protect its obligation to maintain confidentiality, which includes separation of teams and files as appropriate in the circumstances. To the extent that Red Jar possesses information obtained under an obligation of confidentiality to another client or other third party, Red Jar is not obliged to disclose such information to the Client, or use it for the benefit of the Client, however relevant it may be to the Services. When any party becomes aware of the threat of a conflict of interest, it shall inform the other party forthwith in writing and both parties shall consult with each other for a reasonable solution.
(f) The Client agrees to reimburse any costs that any Red Jar Entity or any Subcontractor may incur in complying with any legal, professional or regulatory disclosure requirement relating to any of the Services imposed in any proceedings or regulatory process not involving any substantive claim or proceeding against any such Red Jar Entity or Subcontractor, provided the Client is notified promptly and, where reasonably or legally possible, prior to disclosure.
(g) Client shall not disclose to any third party any of the Deliverables and/or Client Communications provided hereunder without the express prior written consent of Red Jar, except where
applicable laws (including securities laws), regulations and rules prohibit limitations on disclosure. In the aforementioned circumstances, there are no restrictions or limitations on the disclosure of Red Jar’s advice, opinions, reports and other services. In such cases, the Client shall provide Red Jar with prompt notice, to the fullest extent allowed under applicable laws or regulations.
(h) Client shall use the Deliverables and Client Communications solely for the purposes specified in the Engagement Letter and, in particular, shall not, without the prior written consent of Red Jar, use any Deliverable or Client Communications in connection with business decisions of any third party or for advertisement purposes.
(i) Unless agreed otherwise in writing explicitly, all Services are only intended for the benefit of the Client. The mere receipt of any Deliverable or Client Communications or other Services by any third party is not intended to create any duty of care, professional relationship or any present or future liability between those third parties and Red Jar. As a consequence, if copies of any Deliverable or Client Communications or other Services (or any information derived therefrom) are provided to others under the above exclusions, it is on the basis that Red Jar owes no duty of care or liability to them, or any other third parties who subsequently receive the same.
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9.Assignment
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No party may assign or otherwise transfer an Engagement without the prior express written consent of the other, except that Red Jar may assign any of its rights or obligations hereunder to any Red Jar Entity and to any successor to its business. Neither party will directly or indirectly assign or transfer to a third party any Claim against the other party arising out of the Engagement.
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10.Indemnification
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The Client shall indemnify and hold harmless Red Jar for all Losses incurred in connection with any third party Claim in connection with the Engagement, except to the extent finally judicially determined to have resulted solely from the wilful misconduct or gross negligence) of Red Jar or a Red Jar Subcontractor.
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11.Applicable Law and Venue
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(a) The Engagement, including all matters relating to it, shall be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada (without giving effect to the choice of law principles thereof).
(b) The parties agree to attempt in good faith to resolve any dispute or claim arising out of or in connection with the Engagement promptly through negotiations between senior management.
(c) Any Claim arising out of or relating to the Engagement or the Services shall be brought before and maintained exclusively in the courts of competent jurisdiction in the Province of Ontario. The parties irrevocably attorn and submit to the exclusive jurisdiction of any Ontario court sitting in Toronto in any action or proceeding arising out of or related to the Engagement and irrevocably agree that all claims in respect of any such action or proceeding shall be heard and determined in such Ontario court. The Parties irrevocably waive, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
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12.Non-solicitation
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During the term of the Engagement and for a period of twelve (12) months thereafter, each of Red Jar and Client agrees that it shall not, without the other’s consent, directly or indirectly employ, solicit, engage or retain the services of each other’s personnel who (in their capacity as such) had direct and substantive contact in the course of the performance of Services with such personnel of the other. In the event that either Red Jar or Client breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to a two hundred percent (200%) of the annual base compensation of the relevant personnel in his/her new position, such amount being liquidated damages and not a penalty, and a genuine pre-estimate of the damages the aggrieved party will suffer from a breach of this covenant. Although such payment shall be the aggrieved
party’s exclusive means of monetary recovery from the breaching party for breach of this provision, the aggrieved party shall be entitled to seek injunctive or other equitable relief to terminate ongoing or repetitive violations. This provision shall not restrict the right of either Red Jar or Client to solicit or recruit generally in the media.
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13.Use of Names, Trademarks, etc.
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Red Jar and the Client agree that neither shall use the other’s name, trademarks, service marks, logos, trade names and/or branding without prior written consent, except that any Red Jar Entity may use the name of the Client and the performance of the Services in marketing and publicity materials, as an indication of its experience, and for internal purposes.
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14.Use of Electronic Communications
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(a) Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed fax, e-mail (including e-mail exchanged via Internet media) and voicemail communication of both sensitive and non-sensitive documents and other communications concerning the Engagement, as well as other means of communication used or accepted by the other.
(b) It is recognized that the Internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all) and that other methods of communication may be appropriate. Electronic communications are also prone to contamination by viruses. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (whether in contract, statute, tort (such as negligence) or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by any Red Jar Entity to networks, applications, electronic data or other systems of the Client.
15.Miscellaneous
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(a) Survival. Any provisions of the Engagement which either explicitly or by their nature extend beyond the expiration or termination of the Engagement shall survive such expiration or termination.
(b) Conversion. If any provision or part of the Engagement is found by a court of competent jurisdiction or other competent authority to be unenforceable, such provision or part shall not affect the remainder of the Engagement, but such unenforceable provision or part shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
(c) Interpretation. The headings in the Engagement are for convenience only and shall not affect the interpretation of the Engagement.
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This document was last updated May 2024
RED JAR DIGITAL INFRASTRUCTURE SERVICES CORP.
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STANDARD TERMS AND CONDITIONS OF SERVICE
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Any general terms and conditions proposed by the Client are rejected explicitly. Whenever the contents or interpretation of the Purchase Order, Engagement Letter, and/or these Business Terms conflict, the first-mentioned document shall prevail.
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Definitions:
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“Affiliate” means any entity which is controlling, controlled by, or under common control with, the party providing or accepting a purchase order, binding quote, or party to the Engagement Letter, as applicable.
"Business Terms" means the terms set out in this document.
"Claim" means any claim or proceeding of any nature (whether in contract, tort, breach of statutory duty or otherwise and including, but not limited to, a claim for negligence).
"Client" means the natural person or legal entity which enters into the Engagement Letter.
“Client Communications” means any information, documents, or other communications provided by Red Jar Entities under an Engagement whether in writing or otherwise, including, without limitation, any reports (including, without limitation, the final written report, if any, on the Services performed under the Engagement) or memoranda issued by any Red Jar Entity, including, without limitation, documents, communications, advice, if any, and any drafts thereof, any draft or final reports or memoranda, whether in writing or otherwise.
“Confidential Information” means any information, trade secrets or other proprietary information which is either designated as confidential or is by its nature confidential, including Client Communications and Deliverables.
"Engagement" means the Engagement Letter or purchase order together with these Business Terms.
“Controller” means the natural person or legal entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
"Deliverables" means any deliverables and results identified in the Engagement Letter to be provided to the Client under the Engagement.
"Red Jar" means Red Jar Digital Infrastructure Services Corp.
“Red Jar IP” means works of authorship, materials, information, technologies, including web-based technologies and algorithms, calculation methods, ideas and tools, and trade secrets and other intellectual or industrial property which Red Jar owns, is licensed to or developed by any Red Jar Entity and used in connection with the performance of Services, including any modifications or enhancements thereto and derivative works based thereon.
“Engagement” means the Engagement Letter or purchase order, as applicable together with the Business Terms.
"Engagement Letter" means the engagement letter entered into between Client and Red Jar which incorporates these Business Terms and any appendices.
"Losses" means any losses, Claims, liabilities, damages, costs or expenses in any way relating to or arising out of the Engagement or the Services.
“Other Recipients” means any and each person or organization as identified in the Engagement Letter (other than the Client) or later agreed in writing between Red Jar and the Client as a recipient of Deliverables or Client Communications.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Processor” means a natural person or legal entity which processes Personal Data on behalf of the Controller.
“Professional Advisor” means all professional advisors of the Client rendering professional advice to the Client for whom the contents of any Client Communications produced by Red Jar may be relevant in the course of rendering their advice to the Client. The term “Professional Advisor” does not include, among others, lenders or other financial institutions participating in or considering participating in any financing relating a transaction to which the Engagement Letter may refer.
"Services" means the services and Deliverables described in the Engagement Letter.
“Subcontractor” means a third party (other than a Red Jar Entity) to whom Red Jar subcontracts any or part of the Services.
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1.Applicability and Entire Agreement
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(a) These Business Terms shall be applicable to all legal relationships between the Client and Red Jar, unless the applicability of these Business Terms is excluded or restricted by law, regulations or written agreement.
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(b) The Engagement constitutes the whole agreement between the Client and Red Jar in relation to the Services. Nothing discussed or occurring prior to execution of the Engagement Letter forms part of the Engagement unless as specifically set out in the Engagement Letter. The Engagement supersedes any previous agreement, proposal, understanding or communication, written or oral, relating to its subject matter. No variation to an Engagement shall be effective unless it is documented in writing, provided, however, that the scope of Services set forth in the Engagement Letter may be changed by agreement of the parties in writing, including by e-mail or facsimile. If Red Jar has already started work (e.g. by gathering information, project planning or giving initial advice) then the Client agrees that the Engagement is effective as of the start of such work and the Client shall compensate Red Jar for its efforts even if no Engagement becomes effective.
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(c) The Engagement shall be effective as of the moment the Engagement Letter is signed by the Client and Red Jar, and – if applicable – shall be effective retroactively as from the effective date mentioned in the Engagement Letter or the date Red Jar has started its performance.
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(d) The parties shall be at liberty to prove that the agreement has been concluded in another manner.
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(e) The Engagement is between the Client and Red Jar only. Red Jar may subcontract any Services under the Engagement to any other Red Jar Entity or, with the consent of the Client, to any Subcontractor. Red Jar shall remain obligated for performance of the Engagement notwithstanding any subcontracting.
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(f) Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co- owner.
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(g) To the fullest extent possible under applicable law, no Red Jar Entity (except Red Jar) nor any Subcontractor will have any liability to the Client and the Client will not bring any Claim in any way in respect of or in connection with the Engagement against any Red Entity or any Subcontractor, other than Red Jar. Subcontractors are intended third-party beneficiaries of the Engagement. The Engagement can be varied without any third party's consent.
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(h) If the Client and the beneficiary of our services are separate legal entities – including, without limitation, natural persons – and either is an Affiliate of the other, the Client warrants and represents that the (other) party or parties having an interest in the Services accept the terms and conditions of the Engagement fully, failing which the Client shall indemnify and hold Red Jar harmless from and against all Losses connected with the breach of such warranty or representation.
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2.Parties’ responsibilities
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2.a Responsibilities of the Client
(i) The Client is responsible for determining that the scope of the Services is appropriate for its needs.
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(ii) The Client shall cooperate with Red Jar and its Subcontractors (where applicable) in the performance of the Services, including, without limitation, providing reasonable facilities and timely access to data, information, personnel and, if applicable, the premises of the Client. The Client shall be responsible for the performance of its personnel and agents, for the timeliness, accuracy, lawfulness and completeness of all data and information (including all financial information and statements) processed and provided to Red Jar, or put at its disposal, by or on behalf of the Client and for the implementation of any advice provided as part of the Services. Red Jar may use the information and data provided by the Client or others on behalf of Client and rely on its accuracy, completeness and lawfulness without audit or verification.
Red Jar’s performance shall be dependent upon the timely performance of the Client’s responsibilities under the Engagement and timely decisions and approvals of the Client in connection with the Services. Red Jar shall be entitled to rely on all decisions and approvals of the Client. The Client shall be obliged to inform Red Jar forthwith of facts and circumstances that may be of importance in connection with the performance of the Services.
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(iii) The Client shall be solely responsible for, among other things:
(a) making all management decisions and performing all management functions;
(b) designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably within senior management to oversee the Services;
(c) evaluating the adequacy and results of the Services on time and in full;
(d) accepting responsibility for the results of the Services;
(e) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities; and
(f) complying with all applicable legislation and regulations applicable to the Client and its activities.
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(iv) The Client shall be responsible for compliance with all applicable legislation and regulations in the area of protection of privacy and data (or Personal Data) including where the Client provides Red Jar with – or puts at Red Jar’s disposal – data (or Personal Data) of its personnel, its clients or other third parties, even if such data (or Personal Data) originates from third parties or is provided to Red Jar or put at Red Jar’s disposal by third parties at Client’s request.
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(v) Unless the Engagement Letter specifies other arrangements, the Client agrees that any Deliverables will be deemed accepted by the Client (and the Services, or the relevant part of them complete) within 30 days of their delivery in final form or when the Client first makes use of them in its business, whichever comes first.
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2.b Responsibilities of Red Jar
(i) Red Jar solely undertakes reasonable efforts under the Engagement. Red Jar warrants that it shall perform the Services in good faith and with due professional care. Red Jar disclaims all other warranties, either express or implied.
(ii) Red Jar will use reasonable efforts to supply the Services and deliver the Deliverables in accordance with any timetable and specifications referred to in the Engagement Letter or otherwise specified by the parties in writing. However, unless both parties specifically agree otherwise in writing, all dates given by Red Jar or specified by the Client for the Services are intended for planning and estimating purposes only and are not contractually binding.
(iii) Except as specifically agreed to in writing, the Services shall not include in any legal, financial planning or tax advice and Red Jar does not assume any or liability responsibility for any legal or financial consequences or reporting with respect to the Services or subject matter thereof.
(iv) In providing the Services, Red Jar may discuss ideas with the Client orally or show the Client drafts of Deliverables. To the extent that the content of such drafts or oral advice is finalized and confirmed to the Client in writing, such writing shall supersede any previous drafts or oral advice. Red Jar shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of such drafts or oral advice.
(v) Red Jar shall not be required or deemed to have knowledge of any information known to other professionals of Red Jar or other Red Jar Entities not involved in performing the Services under the relevant Engagement or not provided to Red Jar for or on behalf of Client.
(vi) Red Jar has no responsibility to monitor events occurring after the agreed upon end date or date of completion of the Services nor to update any Deliverable unless the parties have agreed otherwise in writing explicitly.
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3.Compensation and Payment of Invoices
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(a) Red Jar shall be entitled to compensation as agreed upon in the Engagement Letter and, unless explicitly agreed otherwise in writing, this compensation shall not depend on the outcome of the Services.
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(b) Overhead charges, hours of travel, travelling and travel related expenses, and other Engagement related costs incurred by Red Jar may be charged separately to the Client, unless agreed otherwise in writing explicitly. Out-of-pocked expenses shall be invoiced at the actual amount plus a 15% administrative charge.
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(c) Red Jar adjusts its fees for services where charged on the basis of time on at least an annual basis. Where Red Jar increases its time based fees for services during the course of an Engagement, unless otherwise agreed, Red Jar’s revised rates for service will apply 30 days after notice is first given to Client of any increase. Client may, in such circumstances, have the right to terminate any Engagement.
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(d) Red Jar may require Client to pay and maintain a retainer on deposit with Red Jar. Red Jar is authorized and directed to draw from any such retainer to pay and satisfy any invoice for Service. If requested, Client will replenish such retainer within ten (10) days. Red Jar’s invoices are due and payable by the Client upon presentation. For invoices upon which payment is not received within thirty (30) days of the invoice date, Red Jar reserves the right to charge interest at the rate of two percent (2%) per month compounded, monthly, until paid in full. In in addition to the fees, Client is responsible and will pay with each invoice all taxes, such as goods and services tax, harmonized sales tax, other sales and use taxes, and any similar tax, imposed on or in connection with the Services, other than Red Jar’s income and property taxes. In the event that Client fails to pay in full any invoice when due, Red Jar may, in addition to any other remedies available to Red Jar at law our under the Engagement, suspend or withhold Services or any Deliverables.
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(e) Any estimate of the fees involved in the Services will be based upon Red Jar's assessment of the work involved, and subject to any assumptions as set out in the Engagement Letter. Unless Red Jar has agreed otherwise in the Engagement Letter, Red Jar's fees may be adjusted, for example, if the Services prove more complex or time consuming than expected.
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(f) In the case of a jointly conferred engagement, the Clients shall be jointly and severally liable for payment of the invoice amount.
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(g) Red Jar shall be entitled to require that the Client provides (supplementary) security in a form to be determined by Red Jar. If the Client fails to provide the required security, Red Jar shall be entitled, without prejudice to its other rights, to suspend further performance of the Engagement with immediate effect, and everything the Client owes to Red Jar for whatever reason shall be forthwith due and payable.
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4.Term and Termination
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(a) Unless terminated sooner in accordance with its terms, the Engagement shall terminate once the Services have been performed.
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(b) Unless agreed otherwise in the Engagement Letter, Parties may not terminate the Engagement which is entered into for a definitive period of time or for the duration of a project.
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(c) The Engagement entered into for an indefinite period of time may be terminated by either party at any time, without cause, by giving written notice to the other party not less than 30 days before the effective date of termination.
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(d) Notwithstanding paragraphs 4 (b) and 4 (c), either party may terminate the Engagement by written notice to the other party on or at any time after the occurrence of any of the following events: (i) a payment default under the Engagement not remedied within three (3) days, (ii) a material breach, other than a payment default, by the other party of an obligation under the Engagement and, if the breach is capable of remedy, the defaulting party failing to remedy the breach within 30 days of receipt of notice of such breach, (iii) immediately by either party if the other party ceases to carry on business, or becomes insolvent or bankrupt, or makes an assignment in favour of its creditors or a proposal under the Bankruptcy and Insolvency Act (Canada), or if the business or property, or any part thereof, of either of the parties is placed in the hands of a creditor, a receiver, a receiver manager, an agent or trustee in bankruptcy, by voluntary act or otherwise.
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(e) Termination of the Engagement will have no retroactive effect. Upon termination of the Engagement, the Client will compensate Red Jar under the terms of the Engagement Letter for the Services performed and expenses incurred through the effective date of termination. Upon termination, any amounts invoiced in connection to Services performed prior to the termination shall be due and payable immediately and, once paid, the remaining amount of any amount retainer shall be promptly returned to Client.
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5.Property and Intellectual Property Rights
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(a) Notwithstanding the provisions under (b) and (c) of this clause, Red Jar reserves all intellectual property rights with regard to Red Jar IP and Deliverables that have been used and/or developed in the context of the execution of the Engagement and in respect of which Red Jar has or can enforce any intellectual property rights.
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(b) Upon full and final payment to Red Jar hereunder, the Deliverables will become the property of the Client in their physical form and the Client may use them subject to the other provisions of the Engagement for the purpose for which the Deliverables were supplied, provided that, it being agreed and understood that no person or entity may rely on the Deliverables other than the Client.
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(c) Unless otherwise agreed, Red Jar grants to Client - upon full and final payment to Red Jar hereunder - a perpetual, royalty- free, worldwide, non-exclusive and non-transferable license to use Red Jar IP contained in or required for the use of Deliverables and Client Communications solely for the purpose for which the Deliverables were delivered.
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(d) Red Jar does not agree to any terms that may be construed as precluding or limiting in any way its right to (i) provide consulting or other services of any kind or nature whatsoever to any other person or entity as Red Jar in its sole discretion deems appropriate or (ii) develop for itself, or for others, materials that are competitive with or similar to those produced as a result of the Services, irrespective of their similarity to the Deliverables, subject to the confidentiality obligations set forth in Clause 8 of these Business Terms.
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(e) Any intellectual property and other propriety rights in the material and data provided by the Client to Red Jar for performing the Services shall remain the property of the Client.
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6.Limitation of Liability
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(a) Nothing in the Engagement shall exclude or restrict (or prevent a Claim being brought in respect of); (i) any liability finally judicially determined to arise primarily from the willful misconduct or gross negligence of Red Jar; or (ii) any other liabilities which cannot lawfully be limited or excluded, save to the extent permitted by law.
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(b) The Client agrees that in the performance of Services under the Engagement, Red Jar shall not be liable to the Client for any Losses for an aggregate amount in excess of the fees paid by the Client to Red Jar under the relevant Engagement. Where the relevant Engagement continues for more than 12 months the abovementioned fees shall be calculated over the 12- month period immediately preceding the arising of the Losses.
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(c) In no event shall Red Jar, any Subcontractor or Red Jar Entity be liable for any limited use or loss of data that could have been prevented by Client executing adequate and proper back-up and storage procedures in line with common market practice, contracts, goodwill, revenues or profits (whether or not deemed to constitute direct Losses) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to the Engagement or the Services.
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(d) Red Jar, Subcontractors and Red Jar Entities will not be liable for Losses arising as a result of the provision of false, misleading or incomplete information or documentation, noncompliance with applicable legislation or regulations in the area of protection of privacy and Personal Data within the Client’s sphere of responsibility or the withholding or concealment or misrepresentation of information or documentation by any person other than Red Jar, a Red Jar Entity or a Subcontractor.
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(e) In circumstances where all or any portion of the other provisions of this paragraph 6 are finally judicially determined to be unenforceable, the aggregate liability of Red Jar and any other Red Jar Entity or Subcontractor for any Loss shall not exceed an amount which is proportional to their relative responsibility for the Losses to which the Claim relates taking into account the contributory negligence (if any) of the claimant and the responsibility and/or liability of any third party and the benefits received or intended to be received by the respective parties under the Engagement.
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7.Limitation on Actions
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Any complaints about nonperformance in the provision of the Services shall be brought forward by the Client in a timely fashion. No action, regardless of form, relating to the Engagement or the Services, may be brought by the Client later than the earlier of (a) one year after the cause of action has accrued under applicable law and (b) one year from the date of termination of the Engagement.
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8.Confidentiality
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(a) To the extent that, in connection with the Engagement, either Red Jar or the Client (the “receiving party”) comes into possession of Confidential Information, it shall not disclose such Confidential Information to any third party without the disclosing party’s consent except to the Client’s or Red Jar’s legal advisors solely for the purpose of obtaining legal advice regarding its legal position, or as may be required by law, regulation, judicial or administrative process (including, without limitation, regulatory and investigatory proceedings), or to the extent that such Confidential Information:
(i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by the receiving party in breach hereof,
(ii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party which the receiving party believes after due inquiry is not prohibited from disclosing such information to it by obligation to the disclosing party,
(iii) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or
(iv) is developed by the receiving party independently of any disclosures made by the disclosing party to the receiving party of such information. In satisfying its obligations under this paragraph 8(a), each party shall maintain the other’s Confidential Information in confidence using at least the same degree of care as it employs in maintaining in confidence its own Confidential Information, but in no event less than a reasonable degree of care.
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(b) The Client consents to Red Jar disclosing Confidential Information
(i) to any Red Jar Entity and to any Subcontractor and
(ii) to its auditors, legal counsel, insurers and professional advisors, in each subject to their agreement to or being bound by professional standards to maintain the confidentiality of Confidential Information.
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(c) In the performance of the Services, any Red Jar Entity or any Subcontractor may communicate or discuss the affairs of the Client with the other advisers of the Client and may do so free from any obligation of confidentiality.
(d) In connection with performing the Services, Red Jar may develop or acquire general knowledge, experience, know-how, skills and ideas that are retained in the memory of its personnel. Any Red Jar Entity may use such general knowledge, experience, know-how, skills and ideas. The Client agrees that Red Jar may use Information received from the Client or – at the Client’s request - from a third party, as part of research and advice, including, without limitation, benchmarking services and that Red Jar may disclose such information to other Red Jar Entities for this same use, always provided that the information is rendered anonymous and duly de-identified.
(e) Nothing contained in the Engagement will prevent or restrict any Red Jar Entity from providing services to other clients (including services which are the same or similar to the Services) even if those other clients’ interests are in competition with the Client, provided that Red Jar is able to protect its obligation to maintain confidentiality, which includes separation of teams and files as appropriate in the circumstances. To the extent that Red Jar possesses information obtained under an obligation of confidentiality to another client or other third party, Red Jar is not obliged to disclose such information to the Client, or use it for the benefit of the Client, however relevant it may be to the Services. When any party becomes aware of the threat of a conflict of interest, it shall inform the other party forthwith in writing and both parties shall consult with each other for a reasonable solution.
(f) The Client agrees to reimburse any costs that any Red Jar Entity or any Subcontractor may incur in complying with any legal, professional or regulatory disclosure requirement relating to any of the Services imposed in any proceedings or regulatory process not involving any substantive claim or proceeding against any such Red Jar Entity or Subcontractor, provided the Client is notified promptly and, where reasonably or legally possible, prior to disclosure.
(g) Client shall not disclose to any third party any of the Deliverables and/or Client Communications provided hereunder without the express prior written consent of Red Jar, except where
applicable laws (including securities laws), regulations and rules prohibit limitations on disclosure. In the aforementioned circumstances, there are no restrictions or limitations on the disclosure of Red Jar’s advice, opinions, reports and other services. In such cases, the Client shall provide Red Jar with prompt notice, to the fullest extent allowed under applicable laws or regulations.
(h) Client shall use the Deliverables and Client Communications solely for the purposes specified in the Engagement Letter and, in particular, shall not, without the prior written consent of Red Jar, use any Deliverable or Client Communications in connection with business decisions of any third party or for advertisement purposes.
(i) Unless agreed otherwise in writing explicitly, all Services are only intended for the benefit of the Client. The mere receipt of any Deliverable or Client Communications or other Services by any third party is not intended to create any duty of care, professional relationship or any present or future liability between those third parties and Red Jar. As a consequence, if copies of any Deliverable or Client Communications or other Services (or any information derived therefrom) are provided to others under the above exclusions, it is on the basis that Red Jar owes no duty of care or liability to them, or any other third parties who subsequently receive the same.
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9.Assignment
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No party may assign or otherwise transfer an Engagement without the prior express written consent of the other, except that Red Jar may assign any of its rights or obligations hereunder to any Red Jar Entity and to any successor to its business. Neither party will directly or indirectly assign or transfer to a third party any Claim against the other party arising out of the Engagement.
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10.Indemnification
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The Client shall indemnify and hold harmless Red Jar for all Losses incurred in connection with any third party Claim in connection with the Engagement, except to the extent finally judicially determined to have resulted solely from the willful misconduct or gross negligence) of Red Jar or a Red Jar Subcontractor.
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11.Applicable Law and Venue
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(a) The Engagement, including all matters relating to it, shall be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada (without giving effect to the choice of law principles thereof).
(b) The parties agree to attempt in good faith to resolve any dispute or claim arising out of or in connection with the Engagement promptly through negotiations between senior management.
(c) Any Claim arising out of or relating to the Engagement or the Services shall be brought before and maintained exclusively in the courts of competent jurisdiction in the Province of Ontario. The parties irrevocably attorn and submit to the exclusive jurisdiction of any Ontario court sitting in Toronto in any action or proceeding arising out of or related to the Engagement and irrevocably agree that all claims in respect of any such action or proceeding shall be heard and determined in such Ontario court. The Parties irrevocably waive, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
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12.Non-solicitation
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During the term of the Engagement and for a period of twelve (12) months thereafter, each of Red Jar and Client agrees that it shall not, without the other’s consent, directly or indirectly employ, solicit, engage or retain the services of each other’s personnel who (in their capacity as such) had direct and substantive contact in the course of the performance of Services with such personnel of the other. In the event that either Red Jar or Client breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to a two hundred percent (200%) of the annual base compensation of the relevant personnel in his/her new position, such amount being liquidated damages and not a penalty, and a genuine pre-estimate of the damages the aggrieved party will suffer from a breach of this covenant. Although such payment shall be the aggrieved
party’s exclusive means of monetary recovery from the breaching party for breach of this provision, the aggrieved party shall be entitled to seek injunctive or other equitable relief to terminate ongoing or repetitive violations. This provision shall not restrict the right of either Red Jar or Client to solicit or recruit generally in the media.
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13.Use of Names, Trademarks, etc.
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Red Jar and the Client agree that neither shall use the other’s name, trademarks, service marks, logos, trade names and/or branding without prior written consent, except that any Red Jar Entity may use the name of the Client and the performance of the Services in marketing and publicity materials, as an indication of its experience, and for internal purposes.
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14.Use of Electronic Communications
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(a) Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed fax, e-mail (including e-mail exchanged via Internet media) and voicemail communication of both sensitive and non-sensitive documents and other communications concerning the Engagement, as well as other means of communication used or accepted by the other.
(b) It is recognized that the Internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all) and that other methods of communication may be appropriate. Electronic communications are also prone to contamination by viruses. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (whether in contract, statute, tort (such as negligence) or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by any Red Jar Entity to networks, applications, electronic data or other systems of the Client.
15.Miscellaneous
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(a) Survival. Any provisions of the Engagement which either explicitly or by their nature extend beyond the expiration or termination of the Engagement shall survive such expiration or termination.
(b) Conversion. If any provision or part of the Engagement is found by a court of competent jurisdiction or other competent authority to be unenforceable, such provision or part shall not affect the remainder of the Engagement, but such unenforceable provision or part shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
(c) Interpretation. The headings in the Engagement are for convenience only and shall not affect the interpretation of the Engagement.
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This document was last updated May 2024