Master Services Agreement

Last updated March 11, 2024

This Master Services Agreement for Zea Services (the “MSA”), shall apply to each Order Form or Statement of Work that references this MSA and shall be deemed to be incorporated by reference therein, by and between Zea Inc. a corporation organized under the laws of Canada, with a principal place of business located at 4329 rue Saint-André Montréal (Québec) H2J2Z3 (“Zea”), and the party ordering the Services (“Customer”). Zea and Customer are each referred to herein as a “Party” and collectively as the “Parties.”  

This Agreement sets forth the terms and conditions governing the provision of any Zea Services ordered by Customer pursuant to an Order Form or SOW, on or after the Effective Date and during the term hereof. Each party acts exclusively in its own name and on its own behalf with respect to the rights and obligations pursuant to this Agreement.  The parties agree as follows:

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    1. Definitions

    Agreement means these General Terms and any exhibit thereto.

    Customer Deliverables means those Deliverables which are expressly designated in a Statement of Work as Customer Deliverables which will be owned by Customer.

    Deliverables means any tangible materials provided by Zea to Customer pursuant to a SOW and identified in the applicable SOW as Standard Deliverables, Enhancement Deliverables, and Output Deliverables.  Deliverables exclude any Zea products which are licensed pursuant to the terms and conditions under a separate license agreement.

    Enhancement Deliverables mean the Deliverable Zea provides to Customer identified under an SOW, to improve, expand upon, or enhance an application or improve, expand upon, or enhance products licensed under a separate agreement.

    Output Deliverables means Deliverables that are the result data derived from Customer’s data as processed using any software product offered by Zea.

    Professional Services means any consulting services, training services, or other services relating to the Zea software products licensed to Customer under a license agreement.

    SOW means the statement of work or quote agreed upon between Customer and Zea for the performance of Zea Services pursuant to the terms and conditions of the Agreement.

    Standard Deliverables means any tangible materials other than Output Deliverables, Enhancement Deliverables, and Zea software products licensed under a separate agreement, such as training manuals, self-study guides and documentation.

    Zea Services means the Professional Services and any Deliverables provided by Zea to Customer pursuant to the Agreement.
    Defined terms can be used in a singular or plural form.

    2. Intellectual Property

    2.1 Rights and Ownership. In consideration of the payment of all fees set forth in the Agreement, Zea grants Customer a worldwide, perpetual, non-exclusive and non-transferable right, for its authorized users to:

      Customer’s authorized users of the foregoing Deliverables are: (a) its employees, and/or (b) employees of its consultant(s) or subcontractor(s) who use the Services solely for the exclusive needs of Customer and whose usual workplace is located within Customer’s premises.

      Customer’s use of any Zea products (“Zea Programs”) delivered as a result of Professional Services under this Agreement, shall be pursuant to the terms and conditions of the license agreement between Zea and Customer.  All right, title and interest in and to Enhancement Deliverables or Standard Deliverables, hereunder, shall vest exclusively in Zea.

      Customer shall own all Output Deliverables except for any Zea methodologies contained in such Deliverables.

      All materials, ideas, concepts, knowledge, and technique used during the performance of this Agreement in whole or in substantial part by Zea or its employees shall belong to Zea.  Customer or its designee shall own all Customer Deliverables and all Canadian and international copyrights therein except to the extent the Customer Deliverables consist of pre-existing works, identified as such in a Statement of Work.

      To the extent any rights vest in Zea in Customer Deliverables whether by operation of law or otherwise, Zea shall, on payment of the applicable fees, assign to Customer, or its designees all rights in the Customer Deliverables and shall, upon demand, execute or cause to be executed and deliver any and all acts and instruments of assignments that may be necessary or proper to vest all such inventions, improvements or discoveries and patents thereon (both Canadian and foreign) in Customer or its nominee or designee, and that Zea will render to Customer or its designee all such assistance as may be required in the preparation and prosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expenses of all such assignments and patent applications, and all other proceedings referred to shall be borne by Customer.

      2.2 Scope. Except as expressly provided above, Customer may not: (i) provide for general distribution of any Standard Deliverable by any means, and whether alone or bundled or delivered with any product, data, information, software, or other element; (ii) install and/or operate and/or give access to any Standard Deliverable on any hardware and/or software environment owned by or under control of any third party, unless otherwise expressly authorized in the SOW; (iii) represent or imply to any party that it is an authorized or certified provider of services for Zea; or (iv) provide a license or sublicense to any Standard Deliverable or derivative work to a third party.

      Customer shall retain all intellectual property rights in Customer’s products or data made available to Zea by Customer in the course of performing the Zea Services.  Except as otherwise expressly provided herein, Zea shall own and retain all intellectual property rights in Zea’s products, data and Zea Services and all modifications, enhancements or other derivative works thereof.

      Deliverables are licensed, not sold, except as expressly otherwise provided herein.  Customer shall preserve and reproduce all copyright, patent and trademark notices which appear in any Zea Services on all partial or integral copies thereof.  Customer recognizes that the inventions, discoveries, innovations, improvements, ideas, techniques or know-how conceived by Zea during the performance of Zea Services, and the methodologies and techniques contained in or expressed within the Zea Services, are the proprietary information or trade secrets of Zea or its suppliers, whether or not marked as “confidential”. Customer shall treat them as Confidential Information (as defined below) and not disclose them.  This ownership includes the right to obtain and hold in its own name copyrights, registrations and similar protection, which may be available for such items.

      Except as expressly provided herein, the Agreement does not grant or convey either directly, by implication or otherwise, any right or license to any intellectual property right of either party to the other party.  

      2.3 Intellectual Property Indemnification. Zea shall defend Customer against third party claims that a Deliverable or Professional Services infringes a third party copyright and shall pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Zea arising out of such claim, provided that Customer: (i) provides Zea with prompt written notice of the claim, (ii) gives Zea sole control of the defense of the claim and any related settlement discussions, and (iii) provides reasonable cooperation in the defense and settlement of the claim. If a claim is made or in Zea’s reasonable opinion, is likely to be made, Zea may at Zea's expense, either secure the right for Customer to continue using the Deliverable, modify it so that it is not infringing, or replace it with another Deliverable which is functionally equivalent.  If none of the foregoing options is available on terms which are reasonable in Zea's judgment, Zea may terminate the licenses to the Deliverable and refund Customer in an amount equal to the corresponding fees paid for such Deliverable licenses, depreciated on a straight-line over three (3) years upon return or destruction of all copies of the affected Deliverable as certified by an officer of Customer.  Zea shall have no obligation to defend or indemnify Customer against any claim related to (i) any modification of the Deliverable other than by Zea, or (ii) use of one or more of the Deliverables in combination with other hardware, data or programs not specified by Zea in the Agreement, or (iii) Deliverables created or modified in accordance with Customer’s specifications.  This section states Zea’s entire liability and Customer’s exclusive remedy for any claim of infringement of intellectual property rights under the Agreement.​

      Customer shall defend Zea against third party claims that any data and/or materials made available to Zea by Customer in the course of performing the Zea Services infringes a third party copyright, and shall pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Zea by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Customer arising out of such claim, provided that Zea: (i) provides Customer with prompt written notice of the claim, (ii) gives Customer sole control of the defense of the claim and any related settlement discussions, and (iii) provides reasonable cooperation in the defense and settlement of the claim.

      3. Orders and Payment

      3.1 Orders. Customer may order Zea Services under this Agreement by signing a SOW and/or issuing a purchase order referencing a SOW.  Customer agrees that the terms and conditions of this Agreement shall apply to all SOWs and Zea Services ordered thereunder.

      3.2 Zea Services. The hours estimated for Zea Services are listed in the SOW. Zea and Customer will agree on the applicable budget estimate and not to exceed amounts for each SOW.

      3.3 Payment Terms. In consideration of the Zea Services and the rights provided hereunder, Customer shall pay the charges applicable to the Zea Services at the price identified in the applicable SOW.  Unless otherwise expressly specified in the SOW Customer shall pay all invoices by wire transfer within thirty (30) days from the invoice date.

      3.4 Late Payments. Customer shall pay interest on late payments at the rate of one and one-half percent (1.5%) (eighteen percent (18%) per annum) on all sums unpaid at the due date, plus reasonable attorneys’ fees and costs incurred in collecting unpaid amounts.

      3.5 Taxes. All prices are exclusive of taxes.  Customer shall be responsible for payment of any and all taxes, including fees, duties, excises, import VAT, or similar charges of any nature whatsoever, now in force or enacted in the future, that are levied, assessed, charged, withheld, or collected for or in connection with Zea Services provided hereunder or otherwise arising in connection with the Agreement, but excluding domestic taxes based on Zea’s net income. If Customer is required to withhold, deduct, or pay for any tax from the amount of fees to be paid under the Agreement, then Customer shall pay such additional amount to Zea as is necessary to ensure that Zea receives a sum equal to what would have been received had no such withholding, deduction or payment been required.

      4. Warranties, Limitation of Liability

      Zea warrants that all Zea Services will be performed in good and workmanlike manner and that each Deliverable will materially conform to its specifications as described in the Agreement. If the Zea Services do not conform as mentioned above, and Customer has so notified Zea within thirty (30) days from the delivery of the relevant Zea Services, Zea will attempt to make such Zea Services conform as warranted. If Zea has not corrected the non-conformity within ninety (90) days from the date of such notification, Customer may terminate the relevant Zea Services, including the right to use the non-conforming Deliverable, within ninety (90) days and receive a full refund of all fees paid for the non-conforming Zea Services. This refund represents Zea’s sole liability and Customer’s sole remedy for breach of this warranty. The foregoing warranties are (i) not applicable in case of any modification of the Deliverable other than by Zea, or use of the Deliverable in conditions not specified by Zea in the Agreement, and (ii) in lieu of and exclude all other warranties, representations or conditions for Zea Services, whether express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement.

      Zea’s maximum liability for damages shall not exceed the amount of fees actually paid by Customer for the concerned SOW for the Zea Services which caused the damages in the preceding twelve (12)-month period prior to the occurrence of the cause of action giving rise to the claim.  Zea shall have no liability for indirect, incidental, consequential or punitive damages, including without limitation, claims for lost profits, business interruption and loss of data, that in any way relate to the Agreement or any Zea Services, whether or not Zea has been advised of the possibility of such damages and notwithstanding the essential purpose of any remedy.

      The limitations stated in this section shall apply regardless of the form of action, whether the asserted liability or damages are based on contract (including without limitation, breach of warranty), tort (including without limitation, negligence), statute, or any other legal or equitable theory.

      Nothing in the Agreement shall operate so as to exclude or limit the liability of either party to the other for death or personal injury or for any damage arising out of gross negligence or intentional misconduct, or in cases where liability cannot be excluded or limited by applicable law.

      Customer waives any and all claims related to the Agreement or to any Zea Services provided hereunder, for damages of any nature on any basis, against any Zea licensors.

      Any legal action against Zea must be filed with the appropriate judicial jurisdiction within two (2) years after the applicable cause of action has arisen

      5. Confidentiality

      Confidential Information” means any information of a confidential nature that when disclosed: (a) in writing, is clearly marked with a restrictive legend, such as “confidential"; or (b) orally or visually, is identified as confidential at the time of disclosure. Confidential Information does not include ideas and concepts that may occur to individuals who have been exposed to Confidential Information.

      For a period of five (5) years following disclosure of Confidential Information, the party receiving Confidential Information undertakes to protect the other party’s Confidential Information by using the same degree of care that it uses with respect to its own confidential information of a similar nature to avoid disclosure, publication or dissemination of such Confidential Information. Zea is authorized to disclose Customer’s Confidential Information to third parties who have entered into an appropriate confidential disclosure agreement with Zea to the extent necessary to provide the Zea Services.

      The obligation of confidentiality shall not apply to any information that: (i) is already in the possession of the receiving party without any obligation of confidentiality at the time the information was received from the disclosing party; (ii) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (iii) is or becomes publicly available without breach of the Agreement; (iv) is rightfully received by the receiving party from a third party without an obligation of confidentiality; (v) is released for disclosure by the disclosing party with its written consent; or (vi) is required to be disclosed in accordance with a judicial or administrative decision, provided that the receiving party provides prompt information to the disclosing party and reasonably cooperates with the disclosing party to limit the disclosure and use of the Confidential Information.

      6. Term and Termination

      6.1 Term. The Agreement shall come into force on the Effective Date and shall remain in full force and effect until terminated as provided hereunder.

      6.2 Termination for Breach. Customer or Zea may terminate this Agreement and/or all or part of any SOW concluded pursuant to this Agreement if the other is in breach of any of its obligations relating thereto and has failed to remedy such breach within thirty (30) days of receipt of written notice.

      6.3 Termination for Convenience. Customer or Zea may terminate for convenience this Agreement and/or all or part of any SOW related thereto, by providing the other party with a thirty (30)-day prior written notice.

      6.4 Effect of Termination. If the Agreement is terminated due to an uncured breach of the Agreement by Customer, upon the effective date of termination of all or part of any SOW, Customer shall no longer have the right to use terminated Zea Services provided thereunder, and shall immediately destroy or return all copies of any terminated Deliverables. 

      Upon termination of the Agreement or applicable SOW, or upon expiration of an SOW, Customer shall pay Zea for all Zea Services performed until the date of termination or expiration, and for all costs incurred by Zea in connection with those Zea Services.

      All or part of a SOW that is not terminated shall continue or be terminated in accordance with its terms, and this Agreement shall survive for the provision of the Zea Services part of such SOW, that are not affected by such termination and for the duration thereof.

      7. Export

      Exchange of information under the Agreement is subject to all applicable export laws and regulations. Unless provided for in a separate agreement, the parties shall not disclose any information requiring an authorization to be exported unless the authorization is required solely for export to countries subject to trade sanctions.

      8. Customer’s Responsibilities

      In performing the Zea Services, Zea depends on Customer, at no charge to Zea, to: (i) fully cooperate in the performance of Zea Services, including performing any tasks and providing access (to Customer’s premises and technical environment, whether on premise or remotely) as may be required, (ii) ensure it has appropriate rights to allow Zea to use any hardware or software element, or any data provided by Customer to Zea for the performance of Zea Services, (iii) allocate the appropriate resources and iv) provide accurate and complete data to Zea. Customer is responsible for maintaining backups of its data and programs.

      9. Non-solicitation

      While the Agreement remains in effect and for six (6) months thereafter, Customer agrees to obtain Zea’s prior written consent before taking any action to employ or retain any personnel of Zea who has performed Zea Services under the Agreement. This consent requirement will apply to any direct or indirect solicitation of, acceptance of solicitation from, employment, retention or other engagement of the services of any such personnel. This section does not apply to hiring in response to general advertisements unrelated to the Agreement.

      10. Miscellaneous

      10.1 Purchase Orders.  Customer’s purchasing terms and conditions shall not in any way supersede, supplement, or otherwise modify the terms of the Agreement. 

      10.2 Relationship between the parties.  The relationship between Zea and Customer is that of independent contractors.  Nothing contained in the Agreement shall be construed to create a partnership, a corporation, a joint venture, or an agency relationship between the parties, and no employee of Zea shall be deemed an employee of Customer.  Zea shall be responsible for its employees’ supervision, daily direction and control, as well as for payment of salary and benefits, including without limitation applicable employment taxes.  Zea shall be entitled to (i) determine the assignment of its employees for the Zea Services performance and (ii) replace or reassign such employees.

      10.3 Notices.  Unless otherwise provided herein, all notices required hereunder shall be in writing, in English, and shall be deemed to have been given on: (i) the date delivered in person or by express courier service, (ii) three (3) days after sending the notice if sent by certified or registered mail, or (iii) the date sent by confirmed email, addressed to the parties at their registered address, or such other address as either party may designate to the other in the relevant order form or SOW.

      10.4 Force Majeure.  Neither party shall be liable for any default in the performance of its obligations under the Agreement resulting from (i) a case of force majeure as defined by the law governing the Agreement and the courts in such jurisdiction or (ii) the following causes: strikes (whether previously announced or not), war (declared or not), riots, governmental action, acts of terrorism, acts of God (fire, flood, earthquake, etc.), or any electrical, utility or telecommunication outages.

      10.5 Severability.  If any provision of the Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void or unenforceable, the other provisions shall remain in full force and effect, and the affected provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the original intent of the parties.

      10.6 Transfer, Assignment & Subcontract.  Any subcontract, assignment, delegation, or other transfer (including without limitation, by way of merger, acquisition, divestiture, or change of control or contribution in kind) of the Agreement or any of Customer’s rights, duties, benefits or obligations hereunder is subject to Zea’s prior written approval.  Any attempt to do so without such consent is void.  The Agreement shall be binding upon, and inure to the benefit of Zea and its successors and assigns.

      10.7 Amendments & Non-Waiver.  No waiver, alteration, modification, or cancellation of any of the provisions of the Agreement shall be binding unless made by written amendment signed by both parties.  A party's failure at any time to require performance of any provision hereof shall in no manner affect its right at a later time to enforce that or any other provision.

      10.8 Entire Agreement; Order of Precedence.  The Agreement comprises the complete agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous proposals, agreements, understandings, representations, purchase orders and communications, whether oral or written.  If there is a discrepancy, inconsistency or contradiction between this Agreement and the SOW, this Agreement shall prevail.  The terms of the Agreement shall have no force or effect with respect to any claim based on the use of any intellectual property rights of Zea outside the scope of the rights expressly granted and/or provided herein. 

      10.9 Language.  The Agreement is in English and may be provided, for informational purposes only, in a language other than English.  The English version shall be the only binding and enforceable version of the Agreement.

      10.10 Headers.  Headings in the Agreement are for convenience only and shall not affect the meaning or interpretation of any Agreement provision.

      10.11 Assignment. Zea may assign, delegate, subcontract, or otherwise transfer any of its rights or obligations hereunder, in whole or in part, without Customer’s consent.

      10.12 Survival.  The rights and obligations of Sections 2.1 and 2.2 (Intellectual Property), 3 (Payment), 4 (Warranties and Limitation on Liability), 5 (Confidentiality), 6 (Termination), 9 (Non-solicitation) and 11 (Miscellaneous) and terms identified as surviving in any SOW and apply to successors and permitted assignees.

      10.13 Governing law and jurisdiction.  The Agreement shall be governed and construed in accordance with the laws of the province of Quebec. The Quebec courts shall have exclusive jurisdiction to hear any dispute arising out of or in connection with the interpretation and/or performance of the Agreement.  Customer acknowledges and agrees that the foregoing shall not prevent, restrict, or otherwise limit in any manner Zea's rights to seek equitable remedies, including injunctive relief before any competent court in any jurisdiction.

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