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General Terms & Conditions – Canada

Updated June 2022

The present General Terms and Conditions (the “Agreement”) is made and entered into by and between New Horizons Global Partners Canada Inc., a Canada company d.b.a. Horizons (the “Provider”), and the company that is executing this Agreement (the “Client”) with the Provider; each referred to as a “Party” and together as the “Parties”.

In consideration of the mutual covenants contained below, the Parties agree to be bound by the terms and conditions as follows:

1. Services

Services. The Client desires to retain Employer of Record services from the Provider (the “Services”) for projects as further detailed in relevant duly executed Country Pricing Schedule(s) under this Agreement (the “Proposal”).

Assignment. The Provider will assign specific Professional(s), approved by the Client, to be dedicated to work on the Client’s project. The Services include, but are not limited to, the onboarding and regular employment of such Professional(s) with its local in-country affiliated entity, and the supervision of all other administrative, legal and HR aspects arising from the employment of such Professional(s).

Commitment. The Provider shall perform the specific Services set forth in any Proposal, with all due skill, care and diligence, in a good and workmanlike manner, and in conformity with generally recognized industry standards for similar services and all applicable legislation.

Instructions. To help the Provider provide the Services, the Client undertakes to (i) make available, provide, and/or deliver, as applicable, all necessary information, materials, context, instructions and cooperate with all the reasonable requests from the Provider; (ii) ensure that such information, materials and context are provided in full compliance with any applicable laws and regulations; (iii) monitor and supervise the ongoing performance of the Services delivered by the relevant Professional(s), and inform the Provider of any unsatisfying points; (iv) notify the Provider immediately if any event or circumstances arises that may delay all or part of the performance of the Services; and, (iv) bear all undisputed costs related to the Services according to each applicable Proposal.

2. Professional

Dedicated Professional. The Professional is a local national or foreign individual, dedicated to work on the Client’s project, and that has been either (i) assigned by the Provider and approved by the Client; or (ii) selected and introduced by the Client and approved by the Provider.

Employment. Due to the nature of the Services and its globally distributed team, the Provider may use a local in-country affiliated entity and other third-parties to onboard a Professional and to handle their payroll and other HR and administrative matters; and the Client further authorizes the Provider to use such local entities. The employment of a Professional may hence be governed by the laws of different in-countries or region according to the location where they have been employed to be assigned to the Client’s project; and the Client agrees to abide by such laws and regulations.

Project Termination. In case a specific project on which a Professional has been dedicated to is to be terminated, the Client understands and agrees that it shall first notify the Provider and let the Provider terminate the relevant Professional’s employment in compliance with local laws and regulations. Any non-respect of this obligation shall be deemed as a material breach of this Agreement by the Client. Furthermore, provided that the Provider has given clear and correct recommendations to the Client regarding such termination, it is understood and agreed that in case such termination procedure is not respected by the Client or in case the termination decided by the Client is not justified in accordance with local laws and regulations, all termination costs and litigation costs shall be borne by the Client, and can be claimed by the Provider, in case it had to upfront such costs.

Notice. Depending on the location where a Professional has been employed to be assigned to the Client’s project, a notice period may be required to terminate such Professional. The Client understands that such notice shall be exclusively delivered via and through the Provider: such notice cannot be directly notified by the Client to the applicable Professional. Upon request of the Client, such notice period can also be skipped by issuing the same payroll amount to the applicable Professional: such payment in-lieu of notice shall be exclusively issued via and through the Provider.

Economic Compensation. A severance bonus is a pay-out mandatory requirement when terminating a Professional to ensure compliance with local labor laws and regulations. Depending on the cases, paying a severance may not be required (e.g.: in case of resignation, failure to complete the probation, or dismissal with serious grounds for termination). The Client understands and agrees that, at the moment the employment of a Professional is to be terminated, all termination costs that may arise, including but not limited to severance compensation and accrued leave days (upon applicability) shall be borne by the Client.

3.Term – Termination

Term. The term of this Agreement shall commence on the Effective Date, as set out on the applicable Proposal to the occurrence of stipulated termination conditions and the full completion of all settlements and payments.

Automatic Renewal. The Agreement will automatically renew for successive one-year periods unless (i) either Party provides the other with written Notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term; or (ii) it ceases to be valid upon early termination in accordance with the relevant provisions of this Agreement and the full completion of all settlements and payments.

Termination for Cause. Either Party may terminate this Agreement for cause, by giving thirty (30) days’ prior written notice to the other Party, upon the occurrence of any of the following events: (i) any of the Parties is placed into receivership or becomes insolvent; (ii) where any event occurs, or circumstance arises which gives the Provider reasonable grounds to believe that the Client will be unable to fulfill its payment obligations under this Agreement and/or any Proposal; (iii) the Client fails to pay the Provider on time, provided that the Provider has promptly notified the Client in writing that the Provider is terminating for non-payment at the expiration of a ten (10)-day notice remained unpaid.

Termination for Breach. In the event a Party materially breaches this Agreement and/or any Proposal and does not rectify such breach within fourteen (14) calendar days, the other Party may terminate this Agreement and/or any Proposal upon written notice.

Termination for Any Reason. Either Party may terminate this Agreement and/or any Proposal for any reason by giving sixty (60) days’ written notice to the other Party.

Effect of Termination. Upon receipt of the notice of termination, the Parties shall initiate the termination of this Agreement in a manner that complies with the laws and that shall keep protecting the business interests of the Parties.

4. Payment – Services Fees

Services Fees. In consideration of the performance of the Services, the Client agrees and undertakes to pay the Provider the services fees (the “Services Fees”) as set forth in the applicable Proposal(s) and all fees relating to any ad hoc services that the Client may have requested to be performed by the Provider. Without liability to the Client, the Provider shall not be obligated to commence any or all of the Services until the applicable Services Fees are paid in full.

Payment. The Client shall pay all undisputed invoices issued by the Provider within ten (10) days of receipt. In the event the Client fails to pay any undisputed invoice on time, interest of 1% per month will be charged on unpaid fees more than ten (10) days past due.

Failure to Pay. In the event of non-payment, the Provider reserves the right (i) to suspend the performance of its obligations under this Agreement, without prejudice to other available remedies, or (ii) to terminate this Agreement, provided that it has promptly notified the Client in writing that this Agreement is being terminating for non-payment at the expiration of a fifteen (15)-day notice remained unpaid. The Client understands and agrees to reimburse the Provider for all reasonable costs of collection, including attorney fees. The Client further understands and agrees not to hold the Provider liable for any delay caused by any third-party or external factors, such as postal services, local authorities, public holidays, etc. that are beyond the reasonable control of the Provider.

Payment Method. Upon receipt of applicable invoices, the Client undertakes to provide the necessary funding on time, via bank transfer. Exceptionally and upon the Provider’s prior approval, payment via banknotes and checks may be accepted. Furthermore, Bank Acceptance Bills, Commercial Acceptance Bills and cash are not accepted as payment methods.

Exchange Rate. Exchange rate is updated monthly, and the Provider uses market rates as FX invoice rate.

5. Deposit

Meaning. When performing the Services, the Provider will assume all employment liabilities from the Client. Consequently, the Provider will charge a specific fee, per Professional assigned to the Client, to offset any cost arising from employment liability (the “Deposit”). Such Deposit will be held by the Provider until the termination of the applicable Professional(s)’ employment.

Calculation. The amount of the Deposit will be stated in each specific Proposal(s). The Provider may punctually increase the Deposit based on relevant changes to the terms of the Professional(s)’ employment (e.g.: salary increase, accumulating seniority, notice period increase, etc.).

Payment. The Deposit per Professional(s) will be included in the first debit note. Any increase will be documented and included in further debit note.

Forfeit. In the event of non-payment or in the event an invoice is past due for more than 60 days, the Client understands and agrees that the entire Deposit will be permanently forfeited, while the overdue amount remains due.

Refund. Any unused portion of the Deposit will be refunded to the Client within thirty (30) days of the termination of this Agreement, provided that all matters related to the termination of the Professional(s) have fully been settled.

6. Warranty

Representation. Both the Client and the Provider warrant that they have the necessary power and approval to enter into this Agreement. They further warrant that they are not aware of anything in their reasonable control which will or could have an adverse effect upon their ability to perform their respective obligations hereunder, and that they have thoroughly read and understood every clause in this Agreement.

Independence. Both the Client and the Provider warrant that they are acting entirely free from any kind of influence, interference, pressure, financial or otherwise, duress or undue influence from any third-party whatsoever. They further commit not to do anything to hinder or affect the execution of the other Parties’ obligations under this Agreement.

7. Indemnification

Loss. The Provider will defend, indemnify and hold harmless the Client from and against any and all costs, charges, liability, expenses or loss of any type, including attorneys’ fees (collectively, “Loss”), arising out of any third party claims against the Client arising from (i) the Provider’s breach of its obligations in performing the Services; or (ii) the gross negligence or willful misconduct of the Provider. The Provider shall work together with the Client as to the strategy and resolution over any claim. The Client will have the right to participate fully, at its own expense, in the defense of the applicable claim with counsel of its own choosing. The Client agrees to indemnify and hold harmless the Provider for any Loss sustained from a third party claim made against the Provider for a willful misconduct made by the Client, only to the extent that the Provider has promptly notified the Client in writing of such claim and to the extent that the Client assumes the defense of such claim.

Consent to Settlement. The indemnifying Party may not, except with prior written consent of the indemnified Party, enter into any settlement of an indemnified Claim that imposes a direct financial liability on the indemnified Party or includes an admission of fault by the indemnified Party.

8. Limitation of Liability

Indirect Loss. To the full extent permitted by law, neither Parties shall, under any circumstances, have any liability to the other Party for any loss of business, loss of profits, loss of reputation or goodwill or for any other form of indirect or consequential loss, whether arising from negligence, breach of agreement, tort, breach of statutory duty or otherwise, notwithstanding of any notice by the other Party of the probability of any such indirect or consequential loss.

Misinformation from the Client. The Provider shall not be held responsible for any fake information or document provided by the Client and relied upon by the Provider in its performance of its obligations under this Agreement.

Amount Limitation. The Parties’ respective liability arising out of this Agreement, whether in contract, tort, or under any other theory of liability, will be limited to the total fees owed or paid to the Provider for the past twelve (12) months for the Services giving rise to a claim.

Permanent Establishment Risk. The Client understands and agrees that the Provider cannot, under any circumstance, be held liable for any Loss, whether direct or indirect, arising from a direct employment claim related to the employment of the Professional(s). The Client further understand that any such direct employment claim would be worsened in the event a Permanent Establishment is identified in relation with the Professional(s) to be recognized as directly employed by the Client.

9. Force Majeure

Interpretation. The Parties shall not be liable for delays or non-performance of their obligations under this Agreement to the extent that they result from circumstances arising from a unpredictable and irresistible event of force majeure that are attributable to any and all uncontrollable events, which may include but are not limited to: natural disasters, epidemics and pandemics, civil disturbances, government acts, regulations, fraud, strikes, embargoes on transported goods, war, insurrections, acts of terrorism and annulments or termination of licenses, permissions, or authority (collectively a “Force Majeure”).

Response. The Party hence delayed or failing to perform their obligations due to an event of Force Majeure shall take all reasonable endeavors to minimize and avoid the effect of the event of Force Majeure.

10. Personal Data Processing

Security of Data. The Provider uses appropriate technical and organizational measures to protect the Client’s Data when processed.

Data Processing. The Client understands that the Provider and its applicable local affiliated entities will process Personal Data in accordance with applicable data protection laws and the Data Processing Addendum. Additionally, the Client shall ensure that any Personal Data is collected lawfully in accordance with any applicable legislation.

11. Confidentiality

Interpretation. The term “Confidential Information” means all information that relates to past, present, and future creation, research, development, and business activities of each Party, their parents, subsidiaries or affiliated companies, and their respective customers, suppliers and other third-party business partners, if any (collectively the “Disclosers”), and all information relating to the Disclosers’ business operation, including, but not limited to, their respective trade secrets, trade knowledge, formulae, processes, business plans, systems, algorithms, software, data programs, training aids, printed materials, methods, books, records, company files, policies and procedures and other information.

Non-Disclosure. The terms and conditions of this Agreement, along with any Confidential Information or material obtained during the scope of this Agreement, are and shall remain absolutely confidential between the Parties and shall not be disclosed to any other person or entity, under any circumstance, during the term of this Agreement and thereafter. Any disclosure in violation of this provision shall be deemed as a material breach of this Agreement. Furthermore, the Provider will ensure any applicable Professional will not disclose any information created, modified or developed by them for and on behalf of the Client as such information shall belong exclusively to the Client.

Exclusion. This Non-Disclosure covenant does not apply in the following circumstances: (i) where mutually agreed to in writing by the Parties; (ii) where necessary to share such information with the Parties’ accountants or attorneys; (iii) where disclosure to a governmental entity is required; (iv) where disclosure is required by any legal or regulatory authority by valid legal order; (v) where the Confidential Information has already entered the public domain by other means.

Ownership of IP. The Provider agrees that it shall not have any interest in any invention, copyright or any other intellectual property (the “Works”), notwithstanding the fact that such Works may have been created by a Professional during their assignment to the Client. All such rights, titles and interests shall be considered as and remain the Client’ sole property.

Return & Destruction of Property. Upon termination of this Agreement or upon request of the Client, the Provider will ensure any Confidential Information, notwithstanding the fact that any applicable Professional may have created, developed, or contributed to the creation of such Confidential Information during their assignment to the Client, shall be returned to the Client.

Publicity & Marketing. Unless otherwise instructed in writing, the Client grants the Provider permission to use its name, logos, symbols, and trademark, in any of the Provider’s marketing and advertising materials, including but not limited to websites, social media, press releases, case study, print pieces and brochures. The Client may revoke such authorization by giving the Provider 30 days advance written notice.

12. Governing Law – Dispute

Governing Law. This Agreement is governed by and construed with the laws in force in the Province of Ontario, Canada.

Dispute. If any claim, disputes, controversy or discrepancies arises out of or in connection with this Agreement, the Parties shall settle such claim, disputes, controversy or discrepancies, if possible, through mediation in an amicable manner. In case no agreement has been reached out within thirty (30) days, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said Rules. The arbitration shall take place in Toronto, Ontario, Canada. The arbitral proceedings shall be conducted in English. The arbitral award shall be in writing, and be final and binding on the Parties.

13. Entirety

Entire Agreement. This Agreement constitutes the entire agreement between the Provider and the Client with respect to the subject matter hereof, and supersedes any and all prior agreements or representations, whether written or oral, relating to the subject matter hereof. All Proposal, Modification, Addendum or Amendment agreed and executed by the Parties shall form an indivisible and integral part of this Agreement, and have equal force with it.

Modification. From time to time, the Provider may modify this Agreement. The Provider will use reasonable efforts to notify the Client of any significant change through communications via the Client’s email or other means.

14. Miscellaneous

Inconsistency. In the event this Agreement is not consistent with any newly established local mandatory stipulations such as laws, regulations, provisions or policies, the new laws, regulations, provisions or policies shall prevail. Any illegal or unenforceable disposition or part of shall be null and void, without any effect of the remaining part of this Agreement.

Independence. The Parties are independent from each other and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither Party will have the power to bind the other Party or to incur any obligations on its behalf without the other Party’s prior consent.

Notice. All notices and communications given under this Agreement must be in writing and will be delivered through communications via the Client’s email or other means.