EngWorks Inc. - Calgary

ENGWORKS Software as a Service Terms and Conditions

Before beginning use of the Software, please read the following Terms and Conditions as use of the Software is governed by these Terms and Conditions and these Terms and Conditions set forth the obligations and conditions between ENGWORKS and you (the “CLIENT”).  Your use of the Software is expressly conditioned on acceptance of these Terms and Conditions.

 BY CLICKING THE BOX BESIDE “I HAVE READ AND AGREE TO THE TERMS OF USE AND CUSTOMER PRIVACY POLICY” ON THE SIGN UP/ACCOUNT CREATION PAGE, AND/OR BY USING THE SOFTWARE, YOU REPRESENT THAT YOU HAVE READ THE ENGWORKS SOFTWARE AS A SERVICE TERMS AND CONDITIONS AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED THEREIN. IF YOU DO NOT AGREE TO ANY TERM OF THE ENGWORKS SOFTWARE AS A SERVICE TERMS AND CONDITIONS, DO NOT USE THE SOFTWARE AND DO NOT CLICK THE BOX BESIDE “I AGREE TO THE ENGWORKS SOFTWARE AS A SERVICE TERMS AND CONDITIONS”.

Article 1     DEFINITIONS

1.1. For the purposes of these Terms and Conditions, the terms below shall have the meanings defined below. Additional terms are defined in the preamble above and throughout these Terms and Conditions.

(a)“CLIENT Content” means any data, information, trademarks, logos, files, images, text or other content that may be provided by the CLIENT or its Software Users for use in conjunction with the Software or Services;

(b) “ENGWORKS” means EngWorks Inc.;

(c) “CLIENT Confidential Information” has that meaning provided in Article 11.6;

(d) “ENGWORKS Confidential Information” has that meaning provided in Article 11.4;

(e) “Hosting Site” has that meaning provided in Article 3.1;

(f) “Indemnified Party” has that meaning provided in Article 14.4;

(g) “Indemnifying Party” has that meaning provided in Article 14.4;

(h) “Notice of Commencement” means that notice provided by ENGWORKS to the CLIENT advising when ENGWORKS will begin making the Software available to the CLIENT via the internet as contemplated by these Terms and Conditions;

(i) “Parties” means ENGWORKS and the CLIENT, and their respective successors and permitted assigns, and “Party” means any of ENGWORKS or the CLIENT, as the context requires;

(j) “Pricing Schedule” means that summary of fees outlined in the Engworks.ca website, as amended by the Parties from time to time;

(k) “Primary Contact” has that meaning provided in Article 9.1;

(l) “Proprietary Products” has that meaning provided in Article 11.1; 

(m)“SaaS Term” means the period during which the Services and access to the Software will be provided by ENGWORKS to the CLIENT;

(n)“Services” means the hosting, maintenance, support and other services provided by ENGWORKS pursuant to these Terms and Conditions

(o) “Software” means those online training programs and software applications provided by ENGWORKS from time to time, including, but not limited to the EngWorks Hazardous Area Classification (ExHAC APP) software application, which is comprised of:

(1) ExHAC training course;

(2) Licensed copy of IEC 60079-10-1 Ed. 3.0 “Explosive Atmospheres – Part 10-1: Classification of areas – Explosive gas atmospheres”;

(3) ExHAC software application for performing calculations;

(p) “SoftwareUsers” means those users of the Software authorized by ENGWORKS from time to time;

(q) “Subscription Fee” has that meaning provided in Article 5;

(r) “Terms and Conditions” means these software as a service terms and conditions;

(s) “Third Party” is any person who is not a Party;

(t) “Websites” means, collectively, those websites and web services operated by ENGWORKS, including but not limited to the following end point addresses:

(i) https://www.engworks.ca; and

(ii) https://www.ExHAC.com,

and “Website” means any one of them; and 

(u) “Work Product” has that meaning provided in Article 17.

ARTICLE 2     WEB-BASED LICENSE

2.1 ENGWORKS grants to the CLIENT, and the CLIENT accepts from ENGWORKS, a non-transferable, non-exclusive, revocable license and right to access and use the Software via the internet only as authorized by ENGWORKS and as authorized in these Terms and Conditions, for its own purpose and operations, during the SaaS Term. The CLIENT acknowledges that its access and use of the Software will be over the internet via desktop application, web browser and/or mobile application, as determined by ENGWORKS from time to time. The Software will not be provided to the CLIENT in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment owned or otherwise controlled by the CLIENT. The Software will be hosted by ENGWORKS (as described in Article 4) and accessed and used by the CLIENT through the use of the internet and the CLIENT’s computers.

ARTICLE 3     ACCESSIBILITY

3.1 ENGWORKS will make the Software available for the CLIENT’s use during the SaaS Term on the CLIENT’s computer systems. ENGWORKS will provide the CLIENT with secure access to the latest supported version of the Software via the internet from the hosting facility that ENGWORKS leases from a third-party hosting vendor (the “Hosting Site”) on a full time (24 hours a day and 7 days a week) basis, except for scheduled system back-up or other on-going maintenance as required and scheduled in advance by ENGWORKS, subject to interruption or failure of the Hosting Site, telecommunications or digital transmissions and links, internet slowdown or any other failures and/or interruptions in Software access due to causes beyond ENGWORKS’s reasonable control or foreseeability.

3.2 The CLIENT acknowledges and agrees that, notwithstanding any term or condition to the contrary contained herein, ENGWORKS makes no representations or warranties that the Software will operate properly on the CLIENT’s computer system.

ARTICLE 4     HYPERLINKS

4.1 The Websites may contain hyperlinks to other sites which are not maintained by, or related to, ENGWORKS. Hyperlinks to such sites are provided as a service to users and are not sponsored by or affiliated with a Website or ENGWORKS. ENGWORKS does not continuously monitor or review any or all of such sites and is not responsible for the content of those sites. Hyperlinks are to be accessed at the user’s own risk, and ENGWORKS makes no representation or warranties about the content, completeness or accuracy of these hyperlinks or the sites hyperlinked to any of the Websites. ENGWORKS provides hyperlinks as a convenience, and the inclusion of any hyperlinks to a Third Party site does not imply endorsement by ENGWORKS of that site or any association with its operators.

ARTICLE 5     FEES AND  PAYMENT

5.1 During the SaaS Term, the CLIENT shall pay to ENGWORKS, in advance, the fees and all other monies from time to time owing to ENGWORKS by the CLIENT pursuant to the Pricing Schedule (the “Subscription Fee”). 

ARTICLE 6     TERM AND TERMINATION

6.1 The SaaS Term shall commence on the commencement date indicated in the confirmation of registration e-mail delivered by ENGWORKS to the CLIENT. The SaaS Term shall continue in full force and effect from the commencement date until terminated by either Party by providing thirty (30) days written notice of termination to the other party (the “SaaS Term”).

6.2 Notwithstanding Article 6.1, either the CLIENT or ENGWORKS may immediately terminate the SaaS Term as a result of a material breach of these Terms and Conditions by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not resolved within ten (10) days of notification. For purposes of this Article, a material breach includes, but is not limited to: (a) unauthorized use of the Software or Services; and (b) allowing users other than the Software Users to access or use the Software.

6.3 ENGWORKS, in its sole discretion, may terminate the CLIENT’s password, account or use of the Service:

(a) In accordance with Article 6.1;

(b) In accordance with Article 6.2 if the CLIENT breaches or otherwise fails to comply with these Terms and Conditions; or

(c) immediately upon:

(i) a breach of the CLIENT’s obligations to pay the Subscription Fee; or

(ii) the CLIENT becoming insolvent or making an assignment for the benefit of its creditors, or a Bankruptcy Petition or Receiving Order is filed or made against the CLIENT, or if a custodian, or receiver, or receiver and manager, or other officer with similar powers, is appointed with respect to the CLIENT, or the CLIENT commits or demonstrates an intention to commit any act of bankruptcy, or the CLIENT otherwise becomes subject to the provisions of the Bankruptcy and Insolvency Act (Canada), or any other similar bankruptcy act where the CLIENT is located, for the benefit of its creditors.

6.4 The Client acknowledges and agrees ENGWORKS has no obligation to retain any of the CLIENT’s data and may delete such data if ENGWORKS terminates the SaaS Term in accordance with this Article.

6.5 In the event of termination of the SaaS Term for any reason, the CLIENT’s access and use of the Software shall cease immediately.  Notwithstanding the foregoing, in the event of termination of the SaaS Term, ENGWORKS agrees to permit the CLIENT to download a copy of the CLIENT’s data within 15 days of receiving a request from the CLIENT for such CLIENT data, provided such request is made not more than 10 days from the date of termination of the SaaS Term, the CLIENT agrees to reasonable terms and conditions of such download and the provisions of Article 11, Article 14 and Article 15 shall survive. The CLIENT acknowledges and agrees that ENGWORKS may destroy and/or delete any CLIENT data after the expiry of 90 days from the termination of the SaaS Term.  Notwithstanding any other provisions of these Terms and Conditions, any termination of the SaaS Term shall not relieve the Parties hereto from any obligations incurred to the date of such termination or for liability and damages for breach of these Terms and Conditions occurring on or prior to the termination of the SaaS Term.  In the event of a termination of the SaaS Term, the CLIENT shall be liable to pay any outstanding invoices issued by ENGWORKS in addition to a pro rata portion of any month for which the Services were provided by ENGWORKS prior to the termination of the SaaS Term.

ARTICLE 7     MAINTENANCE WINDOWS

7.1 ENGWORKS and/or its hosting or telecommunications vendor(s) may perform system maintenance during the SaaS Term, and ENGWORKS will announce all planned upgrades and outages in advance, which may be given by means including, but not limited to, posting on a Website or the Websites, or by electronic or conventional mail, or by any other means by which the CLIENT obtains notice thereof.  The CLIENT understands and agrees that there may be instances where ENGWORKS needs to interrupt access to the Software without notice in order to protect the integrity of the Software or Services due to security issues, virus attacks, spam issues or other unforeseen circumstances and in each case, ENGWORKS shall not be liable to the CLIENT for such interruption in services.

ARTICLE 8     UPGRADES

8.1 ENGWORKS will install minor upgrades/releases of the Software which are generally made available to its other subscribers, including patches and/or fixes, as they are made available at no charge during the SaaS Term. ENGWORKS will determine and announce all planned upgrades as described in ARTICLE 7 of these Terms and Conditions.

ARTICLE 9     THE CLIENT PRIMARY CONTACT

9.1 The CLIENT shall identify, and name, an appropriate individual, with corresponding contact information, including electronic mail address, as the primary contact (the “Primary Contact”) with whom ENGWORKS should communicate matters regarding the Software and Services, such as maintenance notifications, and who has the authority to make Services requests, including release of CLIENT data, both internally to ENGWORKS and to the CLIENT, restoration of data, and other configuration changes.

ARTICLE 10     THE CLIENT RESPONSIBILITIES

10.1 The CLIENT shall:

(a) maintain its user desktops and provide Software Users network access to the Software;

(b) ensure that only Software Users are permitted to access or use the Software during the SaaS Term;

(c) ensure that the Software Users comply with these Terms and Conditions with respect to use of the Software and Services; 

(d) provide connectivity and security to the internet for its location(s) for purposes of providing adequate access to Software hosted at the ENGWORKS Hosting Site. ENGWORKS shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by the CLIENT in accessing the internet to access the Software;

(e) provide adequate industry “best practice” standards to ensure reasonable security for integration between applications at the CLIENT site and Software hosted by ENGWORKS;

(f) provide accurate input information in the manner reasonably prescribed by ENGWORKS in connection with the Software and Services provided under these Terms and Conditions;

(g) advise ENGWORKS of any changes to the CLIENT’s operations, Primary Contact, or other information that would require a change in the support, operation, or configuration of the hosted Software;

(h) immediately advise ENGWORKS of any outages or any other problems with the Software; and

(i) be responsible for ensuring that the CLIENT Content is accurate, not corrupt in any way, and does not contain any viruses or malware.

ARTICLE 11      Proprietary Rights and Restrictions

11.1 The CLIENT agrees that the Software and Services (“Proprietary Products”) are proprietary products and services and that all right, title and interest in and to the Proprietary Products, including all associated intellectual property rights (including, but not limited to, patents, trademarks, source code, and trade secrets), are and shall at all times remain the property of ENGWORKS and its Third Party licensors and is protected by Canadian and other copyright laws and international treaties.  The CLIENT may not copy or distribute the Proprietary Products, electronically or otherwise, for any purpose. The CLIENT hereby grants to ENGWORKS a non-exclusive right to use all of the CLIENT Content as necessary solely for the purposes of providing the Proprietary Products to the CLIENT and its Software Users pursuant to these Terms and Conditions. 

11.2 The CLIENT may not use the Proprietary Products for the benefit of any Third Party or provide other access or use of Proprietary Products to a Third Party, except as approved in writing by ENGWORKS, in its sole discretion, from time to time.  The Proprietary Products contain trade secrets of ENGWORKS. The CLIENT shall not disclose such trade secrets or decompile, reverse engineer, disassemble, or make any attempt to ascertain, derive or obtain the source code for the Software or otherwise reduce the Software to human-perceivable form.

11.3 The CLIENT may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Proprietary Products, or any portions thereof, to any Third Party and acknowledge that such action will materially damage ENGWORKS, and ENGWORKS may at its option, obtain such injunctive relief as may be necessary to protect its proprietary interest, seek damages, or be entitled to terminate the SaaS Term immediately. The Proprietary Products and the CLIENT Content shall not be used for any commercial purpose beyond the functionality driven by the Software.  The CLIENT hereby agrees, represents, and warrants to ENGWORKS that the CLIENT will not access or use any of the Websites for any purpose that is unlawful or prohibited by these Terms and Conditions. The CLIENT will not use the Proprietary Products to take any actions that: 

(a) infringe on any Third Party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; 

(b) Use the Software or any of the Websites in a way that could harm a Website or the Services or impair any other client’s use of the Websites and/or Services;

(c) violate any applicable law, statute, ordinance or regulation (including those regarding export control); or

(d) Create or build any derivative works from any information, content, software, products or services obtained from or otherwise connected to ENGWORKS’s Websites.

11.4 The CLIENT acknowledges that all proprietary information of ENGWORKS relating to or in the context of the Proprietary Products (the “ENGWORKS Confidential Information”) is the trade secret of ENGWORKS and that any unauthorized modifying, adapting, translating, renting, distributing, assigning, reselling, copying, duplicating, or other reproduction of all or any part of the Proprietary Products or the failure to protect the confidentiality of all or any part of the Proprietary Products will materially damage ENGWORKS, and that ENGWORKS is entitled at its option to obtain such injunctive relief as may be necessary to protect its proprietary interest, damages, or be entitled to terminate the SaaS Term immediately.   The CLIENT will hold the ENGWORKS Confidential Information in strictest confidence. The foregoing obligation of confidentiality shall not apply to information which: (i) was or shall have been in the possession of the receiving party prior to disclosure by the other party; (ii) is acquired by the receiving party from others who have no direct or indirect confidential commitment to the other party with respect to same; (iii) are or become part of the public domain without the fault or participation of the receiving party; (iv) is required by law or court order, provided notice is promptly given to ENGWORKS and provided that diligent efforts are undertaken to limit disclosure; or (v) is necessary in a dispute resolution between the parties to this Agreement.

11.5 When no longer required by the CLIENT for the purposes of utilizing the Software, or upon termination of the SaaS Term, all ENGWORKS Confidential Information within the possession or control of the CLIENT shall be destroyed or returned to ENGWORKS as ENGWORKS may instruct. Within fifteen (15) days of: (i) the date the ENGWORKS Confidential Information is no longer required; or (b) after termination of the SaaS Term, the CLIENT shall certify in writing to the CLIENT that all copies of ENGWORKS Confidential Information in any form, including partial copies, have been destroyed, returned, or used solely as ENGWORKS so directs.

11.6 ENGWORKS acknowledges that all proprietary information of the CLIENT which: (a) relates to or is in the context of the business of the CLIENT; and (b) is identified by the CLIENT as confidential information, is confidential information (the “CLIENT Confidential Information”).   ENGWORKS shall hold all CLIENT Confidential Information in the strictest confidence and shall, upon written request, return any CLIENT Confidential Information in the possession and control of ENGWORKS upon termination of the Project or this Agreement. The foregoing obligation of confidentiality shall not apply to information which: (i) was or shall have been in the possession of the receiving party prior to disclosure by the other party; (ii) is acquired by the receiving party from others who have no direct or indirect confidential commitment to the other party with respect to same; (iii) are or become part of the public domain without the fault or participation of the receiving party; (iv) is required by law or court order, provided notice is promptly given to ENGWORKS and provided that diligent efforts are undertaken to limit disclosure; or (v) is necessary in a dispute resolution between the parties to this Agreement.

ARTICLE 12     REPRESENTATIONS AND WARRANTIES

12.1 Each Party represents and warrants that: 

(a) it has the right and power to enter into these Terms and Conditions, and 

(b) it will comply with any applicable laws and regulations pertaining to these Terms and Conditions.

12.2 ENGWORKS warrants to the CLIENT that the Software shall be free from material defects under normal operation and service and is fit for its intended use.  

12.3 ENGWORKS warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards.

12.4 If the Software fails to comply with the warranty set forth above, ENGWORKS's entire liability and the CLIENT’s exclusive remedy will be either a) repair of the Software, or if in ENGWORKS’s opinion such repair is not reasonable, then b) termination of the SaaS Term in accordance with Article 6.2. This limited warranty is void if failure of the Software has resulted from accident, abuse, misuse or negligence of any kind in the use, handling or operation of the Software, including any use not consistent with ENGWORKS’ training materials (including but not limited to ENGWORKS’ ExHAC training materials and the IEC 60079-10-1 standard). ENGWORKS’ entire liability and the CLIENT’s exclusive remedy for any breach of warranty with respect to the Services as described above shall be ENGWORKS repeating the Services performed.

12.5 Any written or oral information or representations provided by ENGWORKS agents, employees, resellers, consultants or service providers with respect to the use or operation of the Software will in no way increase the scope of ENGWORKS’s warranty. ENGWORKS and its suppliers exercise no control whatsoever over the content of the information passing through their systems. Notwithstanding Article 12.2, ENGWORKS does not and cannot warrant the performance or results obtained by the CLIENT in using the Software, or that the Software will meet the CLIENT’s requirements or that the operation of the Software will be uninterrupted or error free. 

12.6 The warranties contained in this Article are the only warranties of any kind made by ENGWORKS, express or implied, with respect to the Software or Services.  ENGWORKS does not make any other warranties, either expressed or implied, statutory or otherwise, including, although not limited to implied warranties of merchantability or fitness for a particular purpose.  

ARTICLE 13     SUBMISSIONS

13.1 Subject to Article 11.6, any information, materials, suggestions, ideas, comments or other information communicated by the CLIENT to ENGWORKS through a Website, e-mail, course blog, telephone or any other form of communication (the “Submission”) will not be treated as confidential, proprietary or trade secret information. Through your Submission, you hereby grant to ENGWORKS the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the Submission, and to incorporate any Submission in other works in any form, media, or technology now known or later developed. ENGWORKS will not be required to treat any Submission as confidential, and may use any Submission in its business without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future ENGWORKS operations.

ARTICLE 14     INDEMNITY

14.1 ENGWORKS shall indemnify and defend the CLIENT against any Third Party claims that the Software or other Work Product made available to the CLIENT by ENGWORKS infringe any United States or Canadian patent or copyright during the SaaS Term, provided that ENGWORKS is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim relating to infringing Software or other Work Product, ENGWORKS shall, in its reasonable judgment and at its option and expense: 

(a) obtain for the CLIENT the right to continue using the Software or other Work Product; 

(b) replace or modify the Software or other Work Product so that it becomes non-infringing while giving substantially equivalent functionality; or 

(c) if ENGWORKS determines, in its sole discretion, that the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the SaaS Term. 

14.2 ENGWORKS shall have no liability to indemnify and defend the CLIENT to the extent:

(a) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of the CLIENT; 

(b) the alleged infringement is the result of a modification made by anyone other than ENGWORKS; or 

(c) The CLIENT uses the Software or other Work Product other than in accordance with these Terms and Conditions or any documentation delivered by ENGWORKS. 

This Article states ENGWORKS’s entire liability and the CLIENT’s sole and exclusive remedy for claims relating to infringement.

14.3 The CLIENT shall indemnify and defend ENGWORKS against any claims:

(a) resulting from the use of the Software, Work Product or Services; 

(b) that any CLIENT Content infringes or violates any rights of a Third Party, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or 

(c) arising from or relating to the CLIENT’s or its Software Users’ failure to comply with these Terms and Conditions.

14.4 Each party (“Indemnifying Party”) shall indemnify and hold the other party (“Indemnified Party”) harmless against any Third Party claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or failure to act by the Indemnifying Party, its employees or agents, while performing its obligations under these Terms and Conditions, which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defense of such action, and sole authority to defend or settle such claim.

ARTICLE 15     LIMITATION OF LIABILITY

15.1 Except for the indemnification for Third Party claims provided in Article 14, ENGWORKS’s maximum liability for any action arising under these Terms and Conditions, regardless of the form of action and whether in tort, contract, or other form of liability, shall in no event exceed the fees paid by the CLIENT during the three (3) month period preceding notice to ENGWORKS of the CLIENT’s loss.  In no event shall ENGWORKS be liable for indirect, special, incidental, or consequential damages of any kind, including, without limitation, lost data, lost profits, opportunities or contributions, loss of use, good will, business interruption, cost of cover, or other pecuniary or non-pecuniary loss, however arising, even if ENGWORKS has been advised of the possibility of such damages.   ENGWORKS shall have no liability or responsibility in the event of any loss or interruption in software access due to causes beyond its reasonable control or foreseeability, such as loss, interruption or failure of the Hosting Site, telecommunications or digital transmissions and links, internet slowdown or failures. 

ARTICLE 16     SOFTWARE MODIFICATIONS

16.1 The CLIENT shall not make any modifications to the Software. Any modifications that the CLIENT makes to the Software will void any warranty obligations contained in these Terms and Conditions.

ARTICLE 17     RIGHTS TO WORK PRODUCT

17.1 Any expression or result of ENGWORKS’s Services, such as findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software (object code only), and other technical information (collectively "Work Product”) created by ENGWORKS in the course of performing the Services hereunder are the property of ENGWORKS and are licensed to the CLIENT, without further license fees, pursuant to the license in these Terms and Conditions, provided, however, Work Product does not include, and the CLIENT shall retain title to:

(a) CLIENT Confidential Information; and

(b) all the CLIENT Content, including without limitation all proprietary rights of the CLIENT. The CLIENT shall have no right to sublicense, transfer, assign, convey or permit any Third Party to use or copy any Work Product.

ARTICLE 18    MODIFICATION OF TERMS

18.1 ENGWORKS shall have the right at any time to change or modify the Terms and Conditions applicable to the CLIENT’s use of the Software, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use.  Such changes, modifications, additions or deletions shall be effective upon thirty (30) days’ notice thereof, which may be given by means including, but not limited to, posting on a Website, or by electronic or conventional mail, or by any other means by which CLIENT obtains notice thereof.  Any use of the Software by the CLIENT after such notice shall be deemed to constitute acceptance by the CLIENT of such changes, modifications or additions. 

ARTICLE 19     FORCE MAJEURE

19.1 Except for the CLIENT’s obligation to pay ENGWORKS, neither party shall be liable for any failure to perform its obligations under these Terms and Conditions if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, epidemic or quarantine restrictions, earthquakes, riots or civil commotion, strikes, war, and restraints of government, freight or other embargoes, weather conditions or any failures by ENGWORKS’s subcontractors or suppliers.

ARTICLE 20     INDEPENDENT CONTRACTOR STATUS

20.1 ENGWORKS performs the Services as an independent contractor, not as an employee of the CLIENT. Nothing in these Terms and Conditions is intended to construe the existence of a partnership, joint venture, or agency relationship between the CLIENT and ENGWORKS.

ARTICLE 21     NOTICES

21.1 Any notice, direction or other instrument required or permitted to be given under this Agreement will be in writing and may be given by the delivery of the same or by mailing the same by prepaid registered or certified mail or by sending the same by facsimile, email or other similar form of communication, in each case addressed as follows:

(a) If to ENGWORKS at:

1620 -49^th Ave SW

Calgary, AB T2T 2T7

Attention: Allan Bozek

Email: [email protected]

 (b) If to CLIENT at:

That mailing address and primary contact e-mail address provided to Thinktific  on Thinktific’s sign up page and confirmed in ENGWORKS’s sign up confirmation e-mail to the CLIENT.                                                    

Any notice, direction or other instrument will (i) if delivered by hand, be deemed to have been given and received on the day it was delivered; (ii) if mailed, be deemed to have been given and received on the 3rd  Business Day following the day of mailing, except in the event of disruption of the postal service in which event notice will be deemed to be received only when actually received; and (iii) if sent by facsimile, be deemed to have been given and received on the Business Day following the day facsimile delivery confirmation is received; and (iv) if sent by e-mail or other similar form of communication, be deemed to have been given and received on the Business Day following the day it was so sent.  Any person may change their address for notice by giving notice in the manner provided for herein.

ARTICLE 22     AUDIT  RIGHTS

22.1 ENGWORKS shall have the right to audit the CLIENT’s use of the Software and compliance with these Terms and Conditions from time to time in ENGWORKS’s sole discretion.  In the event such audit reveals the CLIENT is exceeding the scope of use permitted by these Terms and Conditions and any other agreement between the Parties, then the CLIENT shall pay ENGWORKS’s additional fees for such use (at the then-current list price).

ARTICLE 23     GOVERNING LAW

23.1 These Terms and Conditions shall be governed by and in construed in accordance with Laws of the Province of Alberta and the laws of Canada applicable therein. The Assignor and Assignee hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Alberta. 

ARTICLE 24     ASSIGNMENT

24.1 The rights of the Parties hereunder shall not be assignable without the prior written consent of the other Party. 

ARTICLE 25     ENTIRE AGREEMENT 

25.1 These Terms and Conditions constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, express or implied, between the Parties relating to the subject matter hereof.

ARTICLE 26: WAIVER 

26.1 The waiver by either Party of any breach or failure to enforce any of the terms and conditions of these Terms and Conditions at any time shall not in any way affect, limit, or waive such Party’s right thereafter to enforce and compel strict compliance with every term and condition of these Terms and Conditions.

ARTICLE 27     AMENDMENTS

27.1 No modification or amendment to these Terms and Conditions may be made unless agreed to by the Parties hereto in writing.

ARTICLE 28     SURVIVAL

28.1 Except as otherwise specified in these Terms and Conditions, each Party hereby agrees that the representations, warranties, covenants and other provisions of these Terms and Conditions shall not merge on, and shall survive, the execution and delivery of these Terms and Conditions and the completion of the transactions contemplated hereby and further that all covenants and agreements which by their terms or their nature are intended to be or may be required to be enforced following the termination of these Terms and Conditions shall survive any such termination of these Terms and Conditions.