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General Terms & Conditions – Canada

Updated April 2024

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”.

01. Services

Services. The Client desires to retain the Provider’s consulting services (the “Services”) to support the Client’s specific projects as further detailed in relevant duly executed proposal(s) (the”Proposal(s)).

Assignment. The Provider will assign specific professional(s), selected or approved by the Client, to the Client’s project (the “Professional(s)”). The Client understands that depending on the applicable situation, such Professional(s) may be an independent contractor or regular employee. Therefore, depending on the availability and presence of relevant Professional(s), the Services may include, but are not limited to, the onboarding and regular signing or employment of such Professional(s) with a local in-country affiliated entity, along with the supervision of all other administrative, legal and HR aspects arising from the signing or employment of such Professional(s), and their deployment to the Client’s projects.

Provider’s Obligations. 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.

Client’s Obligations. To help the Provider provide the Services, the Client undertakes to (i) make available, provide, and/or deliver, on the request of the Provider, all necessary information, materials, context, and instructions and cooperate with all other 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 or delivery quality of the Services delivered by the relevant Professional(s), and inform the Provider of any unsatisfying points; (iv) assume responsibility for the day-to-day management of the Professional, including disciplinary matters, and understands that it may draft and issue warning letters, and agrees to duly inform the Provider of any such actions; (v) notify the Provider immediately if any event or circumstance arises that may impact the performance of the Services by the Provider; and, (vi) bear all undisputed costs related to the Services according to each applicable Proposal.

02. Professional

Dedicated Professional. The Professional may be a local national or foreign individual, assigned to render consulting services to the Client’s project, and who is, depending on the case, either (i) selected by the Provider and approved by the Client; or (ii) selected by the Client and approved by the Provider.

Professional Onboarding. Due to the nature of the Services and the globally distributed team of the Provider, the latter may either use a local in-country affiliated entity, or a local in-country affiliated entity and other third parties to engage a Professional and to handle their payment and other HR and administrative matters; and the Client further authorizes the Provider to use such local entities. The engagement of a Professional will hence be governed by the laws and regulations of the location (country, region, province, state, etc.) where they have been deployed to the Client’s project; and the Client agrees to abide by such laws and regulations.

Project Termination – Professional Offboarding. In case a specific project for which a Professional has been dedicated is to be terminated, and notwithstanding the case of the Professional’s resignation, the Client shall provide the Provider with a minimum of 5 days’ notice, prior to the expected project termination date. Upon receipt of such notice, the Provider shall terminate the relevant Professional(s)’ assignment in compliance with local laws and regulations. Prior to notifying the Provider of the project termination, the Client will benefit from a free-of-charge pre-termination consultation with the Provider. The Client understands that the timeframe necessary to effectively terminate the Professional varies depending on the applicable case, including but not limited to the reason for the termination and the country of hire. Any non-compliance with this obligation shall be deemed as a material breach of this Agreement by the Client. Furthermore, the Client understands and agrees that (i) the termination decided by the Client shall be justified in accordance with local laws and regulations, (ii) the Client shall respect and follow the procedural recommendations the Provider has given regarding such termination, and (iii) all termination costs shall be borne by the Client, including, but not limited to, outsourcing specific offboarding procedures to external partners or consultants, when applicable.  Provided the Professional(s) has decided to contest such termination, all litigation costs shall be borne by the Client, and a services fee will apply. All termination costs and litigation costs can be claimed by the Provider, in case it has to pay such costs upfront. Furthermore, in the event the Professional(s) needs to receive a last payment after the project termination (usually relating to expenses reimbursement), the Provider will invoice the Client with the relevant amount, and a services fee will apply.

Economic Compensation. A severance bonus or a project termination compensation is a pay-out that may be required when terminating a Professional to ensure compliance with local labor laws and regulations. The Client understands and agrees that, immediately upon a Professional’s termination, all termination costs that may arise, which may include, without being limited to, severance compensation, payment in lieu of notice and accrued leave days, shall be borne by the Client.

Notice of Professional(s)’ Termination. In the event a Professional is to be terminated, depending on the location where they have been assigned to the Client’s project, a notice of termination may be required. The Client understands that such notice shall be exclusively delivered by and through the Provider, and the Client shall not, under any circumstances, notify the Professional of their termination. Upon request of the Client, the notice period, if applicable, can be omitted by issuing a specific payment to the concerned Professional: such payment in-lieu of notice shall be exclusively issued by and through the Provider.

03. Term – Termination

Term. The term of this Agreement shall commence on the Effective Date, as set out in the applicable Proposal, and shall remain in full force and effect until the occurrence of a stipulated termination condition and the full completion of all settlements and payments.

Termination for Cause. Either Party may terminate this Agreement for cause, by giving 30 calendar 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 reserves the right to terminate for non-payment should the amount remain unpaid at the expiration of 10 calendar days.

Termination for Breach. In the event a Party materially breaches this Agreement and/or any Proposal and does not rectify such breach within 10 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 60 calendar 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.

04. 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 as set forth in the applicable Proposal(s) (the “Services Fees”) and all fees relating to any ad hoc services that the Client may have requested to be performed by the Provider.

Payment. The Client shall pay all invoices issued by the Provider by the 20th of the month of the invoice’s date. In the event the Client fails to pay any invoice on time, interest of 1% per month will be charged on unpaid fees more than 10 calendar days past due.

Clear Funds. All payments must be made in cleared funds, without any deductions or offsets, even if a portion of the amount paid by the Client is required by any banking institution, governmental, fiscal, or other authority. If any deductions are necessary, the Client must ensure the Provider receives the full amount due by paying any additional amounts necessary.

Payroll and Disbursement Cut-off Date. The Client understands that the Provider’s payroll and/or disbursement cut-off date is fixed at the 5th of each month, unless otherwise agreed in a specific Proposal. In the event it falls on a weekend, it shall be extended to the following business day. Any modification to the standard payroll process outlined herein must be explicitly requested by the Client and is subject to the Provider’s written approval.

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 terminated for non-payment should the amount remain unpaid at the expiration of 10 calendar days. The Client understands and agrees to reimburse the Provider for all reasonable costs of collection, including attorney fees.

Payment Method. Upon receipt of applicable invoices, the Client undertakes to provide the due payments 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 will use bank, market or payment providers’ rates as FX invoice rate, depending on the case. In the event there has been any discrepancy or shortfall, the Provider will proceed to regularization on an annual basis – either recovering the difference from or refunding the difference to the Client, upon occurrence.

05. Deposit

Meaning and Purpose. The Provider will charge a specific fee per Professional assigned to the Client (the “Deposit”). Such Deposit will be used only to cover operational matters, and will be held by the Provider until the termination of the applicable Professional(s)’ assignment to the Client. Furthermore, without liability to the Client, the Provider shall not be obligated to commence any or all of the Services until the applicable Deposit is paid in full.

Calculation. The amount of the Deposit will be stated in each specific Proposal(s). The Provider may, from time to time, increase the Deposit based on relevant changes to the terms of the Professional(s)’ assignment (including, but not limited to, and upon relevancy: payment increase, accumulating seniority, notice period increase, etc.).

Payment. The Deposit per Professional(s) will be included in a separate invoice. The Client shall pay such Deposit invoice within 5 calendar days of receipt. Any increase will be documented and included in a further debit note.

Forfeit. 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 30 calendar days after all matters and invoices related to the termination of the Professional(s) have fully been settled. Upon agreement by the Parties, such Deposit may be offset against the Provider’s final invoice to the Client.

06. Warranty

Contractual Autonomy. Both the Client and the Provider warrant that they have the necessary power and approval to enter into this Agreement. They further warrant that are acting entirely free from any kind of influence, interference, pressure, financial or otherwise, duress or undue influence from any third-party whatsoever.

Contractual Performance. Both the Client and the Provider warrant that they have thoroughly read and understood every clause in this Agreement; 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 commit not to do anything to hinder or affect the execution of the other Party’s obligations under this Agreement.

07. Indemnification

Loss. Only to the extent that the Client has promptly notified the Provider in writing of such claim, 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, which does not include the gross negligence or willful misconduct of the Professional. The Provider shall work together with the Client as to the strategy and resolution of 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. Only to the extent that the Provider has promptly notified the Client in writing of such claim, the Client agrees to indemnify and hold harmless the Provider for any Loss sustained from a third–party claim made against the Provider for (i) the Client’s breach of its obligations under this Agreement; or (ii) the gross negligence or willful misconduct made by the Client.

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.

08. Limitation of Liability

Indirect Loss. To the full extent permitted by law, neither Party 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 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 or false information or document provided by the Client and relied upon by the Provider in its performance of its obligations under this Agreement.

External Factors. The Client 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.

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 Services Fees owed or paid to the Provider for the past 12 months for the Services giving rise to a claim, whichever is higher.

Liability Exclusions. Without prejudice to clause Clause 7-Indemnification of this Agreement, the Client understands and agrees that the Provider cannot, under any circumstance, be held liable for any Loss, whether direct or indirect, arising from (i) the identification of a Permanent Establishment in relation to the Professional(s)’ assignment to the Client, (ii) a Direct Employment Claim, or (iii) a claim related to the classification of the Professional as a contractor or an employee, provided that such claim arises through no breach of this Agreement by the Provider or its fault, (iv) the negligence or misconduct of the Professional, or (v) a claim concerning discrimination of the Professional by the Client. For the purposes of point (ii) above, Direct Employment Claim is defined as a claim that aims to identify the existence of a direct employment relationship between the Client and the Professional. For the purposes of point (v) above, the Client agrees not to discriminate against any Professional on the basis of race, color, religion, gender, sexual orientation, gender identity or expression, national origin, age, genetic information, disability, or any other characteristic protected by applicable laws.

09. 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 any other information that should reasonably be understood as confidential.

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. Confidential Information shall not include any information that is or became any of the following: (i) necessary to be shared such with the receiving Party’s accountants or attorneys; (ii) in the public domain through no fault of or breach of this Agreement by the receiving Party; (iii) lawfully possessed by the receiving Party, from a third party, prior to receiving it from the disclosing Party; (iv) independently developed by the receiving Party without making use of the Confidential Information; (v) approved in writing for disclosure by the disclosing Party; (vi) rightfully known by the receiving Party from a third party without a duty of confidentiality to the disclosing Party; or (vii) required to be disclosed in a judicial or administrative proceeding or is otherwise requested or required to be disclosed by law or regulation.

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

Return of Confidential Information. 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 a 30-day 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 30 days, the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by 1 arbitrator 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 the same legal effect as 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

Severability. 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 on the remaining parts 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 Parties’ email, a nationally recognized overnight courier service, or certified or registered mail (postage prepaid, return receipt requested) to the respective addresses specified in this Agreement.

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