Last Updated: January 31, 2023
This wealth as a service agreement (“Agreement”) and any executed Order Forms between the Parties are incorporated herein and will govern the provision of the Services to the Customer set forth in the Order Form and/or this Agreement by One. Customer may request additional Services by submitting separate Order Form(s). This Agreement will commence on the Effective Date of Customer’s first executed Order Form and will continue until otherwise terminated in accordance with Section 7.
Definitions. Terms not otherwise defined in this Agreement will have the meanings set out in this Section.
(a) “Account” means an account established, managed and owned by One for Customers to obtain Products.
(b) “Account Assets” means all User Data, customer analytics and modeling based on the User Data, Account documentation, Product Applications, Account agreements, billing statements, User Lists, User Data and all User deposit and investment information, all Account information and history and other data reasonably necessary to enable continuing operation and management of the Accounts, and any other assets owned by One in relation to the Products or Accounts.
(c) “Advisory Clients” means the Customer’s clients referred to Management for Advisory Services.
(d) “Advisory Services” means the portfolio management services provided by Management to its clients.
(e) “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity or one or more of the other Affiliates of that entity (or a combination thereof). For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity.
(f) “AML Requirements” means all:
(i) Applicable Laws relating to money laundering or the funding of terrorist activities, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), Parts II.1 and XII.2 of the Criminal Code (Canada), and the Financial Transactions Reporting and Analysis Centre of Canada (“FINTRAC”) Guidelines;
(ii) Sanctions lists or schedules maintained under the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada) or the Criminal Code (Canada), the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Canada) or on any other similar list published by Governmental Authority; or sanction, directive or other action by Foreign Affairs and International Trade Canada, IIROC or any other Governmental Authority regarding terrorism, money laundering or sanctions (economic or otherwise) (“Sanction Laws”); and
(iii) Applicable Laws relating to scanning and reporting and other obligations related to politically exposed persons or heads of international organizations.
(g) “Anonymized Customer Data” has the meaning set out in Section 2.4.
(h) “Applicable Law” means any law, rule, statute, regulation, order, judgment, decree, treaty, directive or other requirement in force at any time during the Term which applies to or is otherwise intended to govern or regulate a Party, property, transaction, activity, event or other matter including any rule, order, judgment, directive or other requirement or guideline issued by any Governmental Authority. For greater certainty, Applicable Law includes: Privacy Laws; National Instrument 31-103 - Registration Requirements, Exemptions and Ongoing Registrant Obligations; any standards issued or published by an organization, association or scheme that governs, regulates, issues or publishes codes or standards that applies to the Services or to Customer’s or One’s business or operation (including any voluntary or participatory codes and other standards).
(i) “AUA” means the total market value of assets under custody or administration that One provides administrative services on assets beneficially owned by clients including, as applicable, Users, such as safekeeping, collecting investment income, settling purchase and sale transactions, and record keeping.
(j) “AUM” means the total market value of assets under management that One handles or controls on behalf of its clients including, as applicable, Users.
(k) “Business Day” means any day other than Saturday, Sunday or a statutory holiday observed by either Party.
(l) “Claim” has the meaning set out in Section 16.1.
(m) “Confidential Information” means all information of a confidential or proprietary nature in any medium or format, whether or not marked or described as “confidential”, of or which relates to a Party or any of its Affiliates (collectively, the “Disclosing Party”) provided to the other Party or to any of its Affiliates (collectively, the “Receiving Party”) in the course of the dealings relating to this Agreement including, without limitation, technical, financial or business information, Personal Data, data, ideas, concepts or know-how. Confidential Information shall not include any information which: (a) is or becomes publicly known through no wrongful act or failure to act on the part of the Receiving Party; (b) is rightfully obtained by the Receiving Party, free from any obligation of confidence, from a third party which has represented to the Receiving Party that such source is entitled to disclose that information; (c) is known to the Receiving Party prior to such information having been furnished to the Receiving Party in the course of the dealings relating to this Agreement and was not subject to any confidentiality obligation on the part of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
(n) “Customer Data” has the meaning set out in Section 2.3.
(o) “Customer Platform” means Customer’s digital services offerings which include or make available the Services.
(p) “Discretionary Client Management Fees” means the fees charged to the Advisory Client for Advisory Services provided by Management.
(q) “Effective Date” means the effective date set out on the applicable Order Form.
(r) “Fees” has the meaning set out in Section 9.1.
(s) “Governmental Authority” means: any government, governmental department, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity; and any governmental authority or other entity having jurisdiction over One, Customer or any Person, property, transaction, activity, event or other matter related to this Agreement.
(t) “Handle” means to receive, collect, use, store, access, process, record, disclose, transfer, retain, dispose of, destroy, manage or otherwise handle data or information.
(u) “Intellectual Property” means anything that is or may be protected by any Intellectual Property Right such as, but not limited to, works, performances, discoveries, inventions, trade-marks (including trade names and service marks), domain names, industrial designs, trade secrets, data, tools, templates, technology (including software in executable code and source code format), documents or any other information, data or materials and the expression of the foregoing, Confidential Information as applicable, mask work and integrated circuit topographies.
(v) “Intellectual Property Rights” means any and all current and future worldwide intellectual and industrial property rights including, without limitation, all patent rights, copyrights, trade-mark rights, and rights to trade secrets and know-how.
(w) “Marks” means, in respect of a Party, such Party’s trademarks, branding and other Marks including as may be set out in an Order Form.
(x) “NI 31-103” has the meaning set out in Section 5.1(d).
(y) “Order Form” means an order form for services entered into between One and Customer which incorporates by reference the terms of this Agreement.
(z) “Party” means Wealth, Management, One or Customer, as context indicates, and “Parties” means all of them.
(aa) “Person” means any individual, partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal personal representative or Governmental Authority.
(bb) “Personal Information” means information about an identifiable individual or other information that is subject to any Privacy Laws.
(cc) “Privacy Laws” means Applicable Laws related to privacy, data protection, credit reporting, information security, confidentiality or data breach notification, including the Personal Information Protection and Electronic Documents Act (Canada).
(dd) “Product” means the products or services established and managed by One set out in an applicable Order Form, including the offering of One’s wealth management and investment products to Users.
(ee) “Register” has the meaning set out in Section 5.1(c).
(ff) “Revenue Share” has the meaning set out in Section 5.2.
(gg) “Security Incident” means any act, omission or event that has caused or may reasonably cause unauthorized access to, disclosure of, or Handling of, or loss of or inability to access or account for the Software, technology systems, Intellectual Property, Confidential Information (including Personal Information) of a Party or facilities which house or are used in connection with the foregoing, including or a breach of a Party’s security safeguards that compromises or is reasonably likely to compromise any security or confidentiality obligations under this Agreement.
(hh) “Services” means the wealth-as-a-service services as further described in an applicable Order Form.
(ii) “Term” has the meaning set out in Section 6.1.
(jj) “User” means any Person who is a customer of Customer or otherwise a user of Customer’s Platform and the Services.
(kk) “User Data” means all information regarding a User collected or provide through the Customer Platform in connection with the Products or Accounts.
2.1 Scope of Services. One shall provide the Services to Customer in accordance with the terms and conditions of this Agreement.
2.2 Restrictions on Use. Customer agrees that it shall not and shall not permit or enable others to:
(a) alter, modify, adapt, create derivative works based on, translate, deface, or reverse engineer, decompile or disassemble any of the Services;
(b) use any aspect of the Services to create, market or distribute any product or service that is competitive with the Services; or
(c) transfer, sell, lease, license, sublicense, distribute, disclose or make available or permit use of or access to any of the Services to any other person.
2.3 License to Use Customer Data. For the Term of this Agreement, Customer hereby grants to One a royalty-free, non-exclusive, non-transferrable license to use, copy, store and display all data, files, documentation or any other information that Customer may provide in connection with the Services (“Customer Data”) solely and exclusively for the purpose of enabling One to perform its obligations under this Agreement. One shall only use the Customer Data in accordance with the license granted hereunder and only for the purpose by which it was made available under this Agreement.
2.4 De-Identified Data. One may retain and use Customer Data in an anonymized and de-identified form (“Anonymized Customer Data”) for the purpose of developing and improving its services offerings.
2.5 Subcontracting. One may engage any subcontractor in the fulfilment of its obligations under this Agreement, provided that One will be fully liable for any and all breaches of this Agreement even if such breach resulted from an act or omission of any subcontractor. Upon request, One will provide a written notice to Customer regarding its use of subcontractors sufficient for Customer to take any necessary actions prescribed by Applicable Law.
3.1 Customer Obligations. Notwithstanding anything to the contrary, Customer will be responsible for onboarding users in accordance with this Section 3.
3.2 User Onboarding. Customer will onboard Users on behalf of One and will assist with the creation of Accounts. As part of its onboarding obligations, Customer will be responsible for, among other things, User Data collection, collection of all required user consents, disclosure of required legal agreements (provided by One), fraud and AML Requirements. One will be responsible for all other regulatory requirements under Applicable Law for onboarding.
3.3 AML Requirements. Customer will use applicable User information to perform relevant fraud and AML Requirement checks.
3.4 Cooperation. Customer and One will cooperate to develop and maintain the overall onboarding process, including relevant fraud and AML Requirement checks. Customer will provide all information requested by One in respect of such onboarding processes (including any material changes at least 15 Business Days before they are implemented) and One will provide comments to the extent it reasonably believes that the process does not meet all Applicable Law associated with Product Applications and opening, which Customer will implement. Notwithstanding the foregoing, Customer may make any change that is necessary to comply with Applicable Law or to address a significant risk to the security or the integrity of Services or Personal Information, without first obtaining One’s consent but will advise One as soon as possible and will work with One to address any concerns One has with such unilateral change.
3.5 AML and Sanctions Screening.
(a) Customer will screen potential Users against required Sanction Laws and PEP/HIO lists. Customer is responsible for utilizing AML and/or sanctions lists compliant with FINTRAC and in any event to ensure such lists meet regulatory requirements. Where a potential Sanction Laws match is identified, One will be responsible for determining the appropriate action to take regarding the potential Customer application.
(b) Customer will conduct required AML Requirement checks as part of the application process. Customer will provide all information requested by One in respect of such AML Requirement checks including any material changes at least 30 Business Days before they are implemented
3.6 User Applications. Customer will provide a summary of all User applications for Product to One via API. One will be responsible for the risk rating assigned to the Account/User by One based on One’s internal policies (“Suitability Scoring”) all accounts and providing these risk ratings back to Customer in addition to any feedback on the Account opening, depending on the risk rating associated with the applicant or User holder in question. If One’s risk rating requires the collection of additional User information, enhanced due diligence, and/or the de-risking of an account, Customer will cooperate in doing so. For certainty, this action will not impact any products outside of those held by User with One.
3.7 KYC. Customer will maintain up-to-date Know-Your-Customer investment suitability (“KYC”) information applicable to its Users including: requesting information updates no less than once per calendar year and restricting access to One features when information cannot be reasonably verified.
3.8 Fraud Checks. Customer will conduct customary fraud checks including the use of software providers and Customer-developed technology to review provided digital, phone, and personal information as for signs of potential fraud, included but not limited to, identity theft. These fraud checks will be determined by Customer with input from One, and One will work with Customer to identify opportunities to improve the effectiveness of fraud processes on an ongoing basis. Customer agrees to incorporate any requirements to satisfy regulatory obligations of One under Applicable Law.
3.9 Changes to Onboarding. Customer will provide One with notice of any material changes to the onboarding flow periodically, including processes for AML Requirement verifications, not less than 30 Business Days prior to them being implemented. Unless One objects in writing to the changes, Customer may implement them into the system.
3.10 Material Breach. For certainty, and without limiting this Section 3.1, in the event that Customer opens an Account for a potential Sanction Laws or foreign PEP/HIO match without One’s confirmation to proceed and/or without up to date KYC information, it will be deemed a material breach of this Agreement.
4.1. Advisory Services. If Customer elects on any applicable Order Form, the Customer will offer and Management will provide advisory services (“Advisory Services”) as set out in this Section. Management will provide Automated Discretionary Managed Accounts (“Client Assets”) to Advisory Clients who have retained Management to provide the Advisory Services (“Retained Clients”).
4.2 Retained Clients. Management will, with respect to Retained Clients:
(a) provide the terms and conditions of the investment management agreement or any other applicable agreement between Management and the Retained Client, and the Stated Investment Objectives of the Retained Client;
(b) be responsible for ensuring the suitability of transactions made for each Retained Client by or through Management based on the Stated Investment Objectives and as required by applicable securities laws;
(c) prepare and provide an electronic statement to each Retained Client at least once every calendar quarter or as otherwise required by applicable securities laws;
(d) prepare and maintain complete and accurate records of all transactions conducted on behalf of or with respect to Retained Clients, including all records required to be maintained Management under applicable securities laws; and
(e) make reasonable efforts to resolve in an appropriate and timely manner any complaint made by a Retained Client with respect to Management.
4.3 Termination of Retained Clients. Management reserves the right to terminate a relationship with any Retained Client account at any time. During the term of this Agreement, following written notice from a Retained Client to Management, the Register will be amended to reflect that such Retained Client is no longer a Retained Client subject to this Agreement.
4.4 Custody Arrangements. Client Assets will be custodied at Management’s IIROC dealer and custodian.
4.5 Ownership of Advisory Client Information. Customer acknowledges and agrees that every person who is an Advisory Client is a client of Management for the purposes of the Advisory Services, notwithstanding that such person may also be a client of Customer apart from the Advisory Services provided by Management.
5.1. Referral Process. If Customer elects on any applicable Order Form to enter into a referral arrangement with One then:
(a) Customer shall refer Advisory Clients to Management by providing Advisory Clients with verbal or written information about Management in such form as agreed to in advance by Management from time to time;
(b) Management shall provide Advisory Client and/or Customer with copies of statements with respect to the Advisory Services provided to the Advisory Clients by Management;
(c) Management shall prepare a register (the “Register”) showing the names of all Advisory Clients referred to it by the Customer, the Discretionary Client Management Fees (as set out on the applicable Order Form) paid by each Advisory Client and the date on which they were paid, the amount and date of each Revenue Share by Management and an entry for each Advisory Client who has terminated the Advisory Services; and
(d) during the Term, Management shall ensure that written disclosure of this Agreement and its terms and conditions, as prescribed pursuant to National Instrument 31-103 - Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”), is provided to each Advisory Client prior to the earlier of the opening of the Advisory Client’s account or Management providing Advisory Services to the Advisory Client. The disclosure is found in Management’s Relationship Disclosure Document.
5.2. Management Fees. Management agrees to pay to Customer such portion of the Discretionary Client Management Fees as the Parties may agree from time to time and as is set out on the applicable Order Form (the “Revenue Share”) in accordance with the following terms:
(a) the Revenue Share shall be payable monthly or as Management may otherwise determine from time to time;
(b) notwithstanding any other provision of this Agreement, Management’s obligation under Section 5.2(a) is subject to Management’s receipt of payment of Discretionary Client Management Fees from an Advisory Client. If all or any uncollected portion of an invoiced Discretionary Client Management Fee is unpaid by an Advisory Client, Revenue Share payable to Customer shall accrue to the benefit of Customer and shall be paid by Management to Customer upon collection, provided that Management shall have no obligation to pay any Revenue Share to Customer until full payment has been made by the Advisory Client;
(c) Management may cease paying the Revenue Share in respect of an Advisory Client if Management is required to cease paying the Revenue Share in order to comply with any laws, rules, or regulations promulgated by any competent regulatory authority; and
(d) the Parties agree to provide such notice to Advisory Clients of the Revenue Share paid by Management to Customer, such other disclosures pertaining to this Agreement as may be required by applicable securities regulation, rules, or policies, and, without limiting the generality of the preceding sentence, the Customer agrees to promptly abide by any information or disclosure request from Management required by Management in order to provide written disclosure of this Agreement and its terms and conditions as prescribed pursuant to NI 31-103.
6.1. Term and Renewal. This Agreement shall commence on the Effective Date and continue for the duration specified on the applicable Order Form, including any renewals set out therein (the “Term”), unless earlier terminated as provided herein.
7.1. Insolvency. Either Party may terminate this Agreement, upon written notice to the other Party, if such other Party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other Party’s consent, if the other Party assigns its property to its creditors or performs any other act of bankruptcy or if the other Party becomes insolvent and cannot pay its debts when they are due.
7.2. Material Breach. In addition to any other rights and remedies available to it, either Party may immediately terminate this Agreement in the event of material breach by the other Party of its obligations hereunder, including any of the representations, warranties and covenants hereunder, provided that such breach is not cured within thirty (30) days of notification by the non-breaching Party of such breach.
7.3. Effect of Termination. In the event of a termination of this Agreement, (i) the rights granted by one Party to the other will immediately cease; (ii) One shall issue Customer an invoice for all accrued Fees which shall be immediately due upon Customer’s receipt of the final invoice; (iii) Customer will delete or return any software provided by One in connection with the Services; and (iv) each Party will return or destroy all Confidential Information of the other Party.
8.1. Changes. Customer acknowledges and agrees that One may, at any time, make changes to the nature and scope of the Services (a “Change”) upon no less than thirty (30) days’ notice to Customer. If Customer, acting reasonably, would determine that a Change will have a material adverse effect on Customer’s business, Customer may terminate this Agreement.
8.2. Change Requests. Customer may, at any time and from time to time, request additions, deletions, amendments or any other changes to the Services (a “Change Request”). One shall respond within ten (10) days of receipt of the Change Request indicating whether, in its discretion, it is able to comply with the request, and any costs or other changes to this Agreement required to comply with such request.
8.3. Customer Changes. Customer acknowledges and agrees that One will be highly dependent on Customer’s maintenance of the Customer Platform. Customer will not make any changes to the Customer Platform which will or may reasonably materially affect the ability of or manner in which One performs the Services or any parts thereof or materially adversely affects Users. Notwithstanding the foregoing, Customer may, upon not less than 60 days’ advance written notice to One (unless such notice is prohibited by Applicable Law), make changes to the Customer Platform required or prescribed by changes to Applicable Law, provided that Customer will cooperate in good faith with One to minimize any disruption to the availability of the Customer Platform and/or the Services.
9.1. Fees. For the purposes of this Agreement, “Fees” means, collectively all fees (including any revenue share) set out on an applicable Order Form. Unless otherwise set out on an applicable Order Form, all amounts owing will be calculated monthly and settled on the 15th of the following moth, subject to settlement provided by any custodian or fund administrator, if an das applicable.
9.2. Additional Pricing Provisions.
(a) The Parties may agree that One may introduce tiered pricing based on size of Customer Assets, at any time during the term of this Agreement. Fees will be adjusted accordingly to the different tiers set as agreed by the Parties. For clarity, such tiering may include One charging a lower discretionary management fee to Accounts with a higher AUM, and as such the Fee would be adjusted proportionally.
(b) Notwithstanding anything to the contrary, beginning on the first anniversary of the Effective Date, One may, upon 60 days’ prior written notice to Customer, increase Fees or establish an alternative Fee structure effective upon the then-next anniversary of the Effective Date.
9.3. Taxes. Each Party shall be liable for its own taxes based upon net income, capital or gross receipts. All prices and license fees are exclusive of all applicable taxes such as national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees.
9.4. Responsibility for Costs.
(a) As between One and Customer, Customer will be solely responsible for the costs of:
(i) any AML Requirements as it relates to User onboarding on or through the Customer Platform;
(ii) software development and maintenance for the Customer Platform;
(iii) Customer’s own advertising and marketing related to promoting the Products or Accounts, developed by One; and
(iv) of any cost related to servicing Users, including as it pertains to the Customer Platform offerings.
(b) Except as expressly set out in this Section and, if applicable, on an Order Form, each Party will be responsible for the costs of providing its own services and conducting its activities in respect of the Services.
10.1. Mutual. Each Party represents and warrants that:
(a) the execution and delivery of this Agreement will not breach any contractual duty it has to a third party;
(b) it is duly incorporated and organized has and will have full and sufficient right, title or authority to enter into and perform its obligations under this Agreement; and
(c) it will obtain and maintain its own insurance in amounts and with coverage commensurate to the risks under this agreement, including commercial liability and technology liability insurance.
10.2. Management. Management represents and warrants that:
(a) it is registered in the category of Portfolio Manager in all of the provinces and territories of Canada and in the category of Investment Fund Manager in Alberta, Newfoundland and Labrador, Ontario and Quebec and is duly qualified in providing the Advisory Services in its capacity as a Portfolio Manager and is in good standing in all of the provinces and territories of Canada, and will continue to be so qualified and in good standing during the currency of this Agreement;
(b) with respect to Advisory Clients who wish to retain Management to provide the Advisory Services, it shall:
(i) if Management is willing to provide such Advisory Services to the Advisory Client:
(A) in the case of an Advisory Client receiving the Advisory Services, set up an account for the Advisory Client with Management through its electronic application and a custodian, and inform the Advisory Client that such an account has been opened electronically via the mobile or web application;
(B) Provide online, through Management’s electronic app, to the Advisory Client an understanding of the Advisory Client’s investment needs and objectives; and
(C) Provide the Advisory Client with an electronic copy of the investment management agreement between Management and the Advisory Client.
(ii) If Management is not willing to provide such Advisory Services to the Advisory Client, Management will inform the Advisory Client and the Customer electronically of such decision and the reasons therefore.
(iii) Management will notify the Customer promptly upon becoming aware of any inquiry of, investigation of or proceeding against Management commenced by any securities regulatory authority in Canada, other than compliance examinations in the ordinary course.
10.3. Customer. Customer represents and warrants that it will not advise in or provide advice regarding the suitability of any of Management’s services or in any way advise in respect of securities and in performing the referral services the Customer acknowledges that it is illegal to advise in or to hold itself out as advising in any aspect of portfolio management services unless registered with the appropriate securities regulator to do so.
10.4. Breach. The failure of any of the above representations, warranties and covenants to be accurate at any time during the Term shall constitute a material breach of this Agreement.
10.5. DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ONE MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY NATURE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RESPECT OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS RESPECTING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ARISING BY STATUTE, OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. ONE DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES TO CUSTOMER WILL BE UNINTERRUPTED OR ERROR-FREE.
11.1. Protection of Confidential Information. Receiving Party shall: (a) hold all Confidential Information of Disclosing Party in confidence; (b) not use or copy such Confidential Information except for purposes of and as permitted by this Agreement; (c) not disclose such Confidential Information or the provisions of this Agreement except to its directors, officers, employees or agents who have a need to know such information for purposes of and as permitted by this Agreement. Each Party agrees to protect Confidential Information using the same means it uses to protect its own confidential information of a like nature, but in any event, not less than reasonable means, taking into consideration the sensitivity and nature of the Confidential Information in question, to prevent the unauthorized access to or disclosure of Disclosing Party’s Confidential Information. Receiving Party shall be relieved from its obligations under this Section 11.1: (i) to the extent the Disclosing Party gives its prior written consent; or (ii) to the extent necessary to comply with applicable laws or regulations, or judicial or governmental order, provided that such Receiving Party uses commercially reasonable efforts to provide prior written notice of such disclosure (to the extent such disclosure is not required to be made immediately) to Disclosing Party to afford Disclosing Party the opportunity to seek a protective order. Receiving Party will promptly notify Disclosing Party in writing of any unpermitted disclosure or unpermitted use of any Confidential Information of Disclosing Party of which Receiving Party becomes aware.
11.2. Remedies. Receiving Party agrees that Disclosing Party may be irreparably injured by a breach of this Agreement and that Disclosing Party may be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any action instituted in any court having subject matter jurisdiction, in addition to any other remedy to which Disclosing Party may be entitled at law or in equity in the event of any breach of the provisions hereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
12.1. Privacy Laws. Both Parties are responsible for complying with any and all obligations under Privacy Law. Without limiting the foregoing, where a Party collects and when a Party Handles Personal Information in the course of providing its Services, it will do so solely for the purpose of providing the Services in accordance with this Agreement and Privacy Laws.
12.2. Protection of Personal Information. Each Party acknowledges and agrees that all Personal Information constitutes Confidential Information subject to the protections set out in this Agreement whether or not such information becomes public.
13.1. Each Party represents and warrants that it has established and will maintain and enforce an information technology security program (each, a “Security Program”) including safety, physical and technical security policies and procedures with respect to Confidential Information and other required data security, that is at least equal to applicable industry practices and standards.
13.2. Each Party will maintain complete and accurate records regarding its Security Program, including any backup and disaster recovery policies, and will provide the other Party with copies of such records upon its reasonable request.
13.3. Each Party will provide the other with notice of any material changes to its Security Program. Such notification will be in writing and will contain sufficient detail so as to allow such Party to assess the impact of such change to the security of Confidential Information and Personal Information.
13.4 Each Party’s Security Program will ensure that it will periodically test and continuously monitor its systems for potential areas where security could be breached.
13.5 In addition to all other requirements set forth in this Agreement, each Party will update and maintain its security and back-up processes and procedures, its hardware, Software, systems, facilities and services so that they are consistent with industry standards applicable to top tier providers of similar services. Without limiting the foregoing, each Party will protect all Confidential Information with security measures appropriate to the sensitivity of such Confidential Information while preserving its integrity and availability as required to perform the Services.
13.6 If a Party becomes aware of a Security Incident, such Party (“Notifying Party”) will notify the other Party as soon as reasonably practicable and in any event no later than 48 hours following the time the Notifying Party becomes aware of a Security Incident.
13.7 The Notifying Party will cooperate and share information with the other Party, as such other Party reasonably deems necessary or as is required to comply with Applicable Law, to assess the nature, scope and cause of such incident, to contain and control such incident to prevent further unauthorized access to or use of Confidential Information, to provide prompt notice to affected Persons and any Governmental Authorities as required by Applicable Law, and implement a process for dealing with such incidents that requires formal forensic investigations.
14.1. Ownership. Customer acknowledges and agrees that this is a contract for services and not for goods or products, and that One retains exclusive ownership of all Intellectual Property Rights in and to any and all Intellectual Property used to provide the Services (or parts thereof). For greater certainty, One’s ownership rights extend to any and all improvements to the Services (or parts thereof) developed in the course of its relationship with Customer, whether based on Customer feedback, input, Anonymized Customer Data or otherwise.
14.2. License to Intellectual Property. Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party a limited, non-exclusive, non-transferable, royalty-free license to use its Intellectual Property solely as and to the extent required to perform its obligations and exercise its rights under this Agreement. Notwithstanding the foregoing, each Party agrees:
(a) to only display and utilize the other Party’s Marks in compliance with the guidelines and requirements in respect of trademark usage specified by the other Party;
(b) that all goodwill associated with the use of a Party’s Marks will inure for the benefit of the such Party;
(c) not to take any action which will adversely affect the validity of the other Party’s Marks or directly or indirectly challenge, dispute or contest the ownership, validity or enforceability of the other Party’s Marks;
(d) the other Party will have the right, at any time, to inspect and audit all use of its Marks by to ensure such use is adhering to this Agreement; and
14.3. No Implied Rights. The Parties acknowledge and agree that except for the limited licenses expressly granted, nothing in this Agreement shall be construed to give either Party any right, title, or interest, express or implied, in the Intellectual Property of the other Party.
14.4. No Infringement. Each Party represents and warrants to and covenants with the other Party that:
(a) it has, and will use commercially reasonable efforts to ensure it continues to have, all necessary rights to grant all the rights and permissions granted by it pursuant to this Agreement; and
(b) as at the Effective Date, the performance by it and its subcontractors of their obligations under this Agreement and use and/or provision of the Services, as applicable, by the other Party (whether separately or together in combination) in accordance with this Agreement, do not infringe, violate or constitute a misappropriation of any Intellectual Property Right of any third party.
15.1. Maintenance of Records. Each Party will, at its expense, maintain in Canada (or such other location as approved by the other Party in writing from time to time) complete and accurate books, files and records and all sources of information related to this Agreement (the “Records”) in accordance with Applicable Laws and as may be required by an operational playbook agreed upon by the Parties, if applicable.
15.2. Audit Rights.
(a) During the Term and for a period of one (1) year following the Term, each Party (including any internal or external Person designated by such Party to conduct audits on its behalf (“Audit Representatives”)) will have the right upon reasonable prior notice in writing (or immediately upon written notice in the case of investigations of Claims of misappropriation, fraud or business irregularities of a potentially criminal nature or for emergency type audits to address material operational problems and issues) to audit and inspect the other Party’s: Records, systems, facilities, personnel or information relating to the Services, to verify:
(i) performance of obligations under this Agreement;
(ii) compliance with Applicable Laws, including Privacy Laws and AML Requirements; and/or
(iii) amounts charged under this Agreement, including all Fees, credits, rebates and discounts.
(b) Except as set out in Section 15.3, audits pursuant to this Section 15 will be limited to once per year.
(c) The Parties will cooperate and provide such reasonable assistance as required for the exercise of the rights set out in this Section 15.
(d) Each Party is responsible for their own costs related to this Section 15.
(a) Each Party will correct any significant deficiency or material weakness uncovered in any audit conducted in accordance with this Agreement; and provide the other Party with an opinion and certification, prepared by the external auditor of the Party that conducted the audit, if applicable, attesting to the sufficiency of such corrections, no later than: (A) if the deficiency is one that is identified by the other Party, in its discretion, as having or potentially having an adverse effect on its audit results, the last day of the non-breaching Party’s then-current fiscal year; and (B) for all other deficiencies, 90 days following the last day of the non-breaching Party’s then-current fiscal year.
(b) For any other review, testing, certification or audit conducted pursuant to this Agreement, if such review, testing, certification or audit reveals any error, deficiency or other failure to perform in accordance with the terms of this Agreement on the part of either Party (including any overpayment of Fees), that Party will: as soon as reasonably possible following the date on which it becomes aware of such error, deficiency or other failure to perform and, in any event, no later than 30 days following such date, deliver to the other Party a corrective action plan that will be subject to approval by the other Party; and after receipt of approval, execute the plan in accordance with its terms.
(c) Either Party on its own behalf or through its Audit Representatives will be entitled, in its discretion and at its own cost, to conduct a follow-up audit to confirm that the other Party’s remediation obligations set out in this Section 15.3 have been fulfilled. Any material failure of a Party to fulfil its remediation obligations relating to a security, privacy, confidentiality or internal control issue will entitle the other Party to require the breaching Party to establish and maintain a remediation oversight group, if one not has been established already to ensure such remediation is completed in a timely fashion and report the same to the non-breaching Party and/or its Audit Representatives, as applicable.
(d) Should an audit reveal that a Party has overpaid or underpaid the other, the amount of the overpayment or underpayment, as applicable, plus Interest, will be promptly refunded or paid.
15.4. Governmental Authority Audit.
(a) Each applicable Governmental Authority is a third party beneficiary of the audit rights under this Section 15 and may independently enforce such rights directly against a Party and direct appropriate remediation requirements.
15.5. Limitations on Audit Rights.
(a) No audit will be conducted for an auditing Party in a manner which unreasonably interferes with the audited Party’s normal operations.
(b) The audited Party may require that any personnel of the auditing Party or its auditors execute an agreement with the audited Party containing reasonable confidentiality obligations prior to conducting any audits.
(c) The audit rights in this Section 15 will not entitle the auditing Party, or its auditing firm or Governmental Authorities, to have access to:
(i) information of customers of the audited Party not associated with this Agreement;
(ii) the audited Party’s costs of providing the Services or any internal charges, unless the audited Party is charging the auditing Party based on such costs or charges; or
(iii) books, records or information unrelated to this Agreement or the Services provided hereunder.
16.1. By Customer Customer agrees to defend, fully indemnify and hold harmless One from and against any and all claims, demands, suits, actions, causes of action and/or liability, of any kind whatsoever (each a “Claim”), for damages, losses, costs and/or expenses (including legal fees and disbursements) (“Losses”) arising out of or relating to (i) use of the Services, subject to Section 16.2; (ii) work done by One at Customer’s request; and (iii) all of Customer’s activities pursuant to this Agreement.
16.2. By One.
(a) One shall defend or settle any Claim brought against Customer arising out of or relating to any Claim that Customer’s use of the Services infringes a third party’s intellectual property rights (an “IP Claim”). One will fully indemnify and hold harmless Customer from and against any Losses that: (i) a court finally awards as a result of any IP Claim; or (ii) are agreed to by One in any settlement arising from any IP Claim, in each case subject to this Section 15.
(b) Notwithstanding anything herein to the contrary, One will have no obligation or liability to Customer under this Section 16.2 if: (i) the IP Claim is based upon, arises out of or is related to (a) the combination of any of the Services with any other software, hardware or products not provided by One; (b) the use of the Services for other than its intended purpose; or (c) modifications, improvements and derivative works of One created by or on behalf of Customer; (ii) Customer is in material breach of this Agreement or has failed to pay amounts due hereunder as set forth in Section 9.1; or (iii) fails to notify One of the Claim for which Customer seeks indemnification hereunder within ten (10) days of becoming aware of the IP Claim.
(c) In the event that the Services, or any part thereof, become the subject of an IP Claim, One may, at One’s option and expense, (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services with a non-infringing version of substantially equivalent function and performance; or (iii) terminate this Agreement. The obligations of One set forth in this Section 16.2 shall constitute the sole and exclusive remedy of Customer with respect to any IP Claim.
16.3. Cooperation. In connection with any Claim or action described in this Section 15, the Party seeking indemnification will (i) give the indemnifying Party prompt written notice of such Claim or action; (ii) cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defense and settlement of such Claim or action, and (iii) permit the indemnifying Party to control the defense and settlement of such Claim or action; provided that the indemnifying Party will not under any circumstances (a) settle such Claim or action without the indemnified Party’s prior written consent (which will not be unreasonably withheld or delayed), or (b) make an admission of liability on behalf of the indemnified Party without the indemnified Party’s prior written consent and further provided that the indemnified Party shall be entitled to participate (at its expense) in the defense and settlement of such Claim or action.
16.4. Limitation of Liability.
(a) Except as set forth in Section 16.4(c), neither Party will be liable for any indirect, special incidental, consequential, punitive or exemplary damages, including, without limitation, loss of revenue or loss of profits, regardless of the form of action, whether in contract or in tort including negligence, even if the Party knew or should have known of the possibility of such damages and even if direct damages do not satisfy a remedy.
(b) Except as set forth in Section 16.4(c), neither Party’s liability for damages under this Agreement (whether in contract or tort, including negligence, or otherwise) will in any event exceed the amount paid by Customer pursuant to this Agreement in the six (6) month period preceding the event giving rise to the damages.
(c) The limitations and exclusions of liability provided for in Sections 16.4(a) and 16.4(b) will not apply to: (i) Claims arising from any breach of Section 11 (Confidentiality), Section 12 (Personal Information), Section 13 (Security) and/or Section 14 (Proprietary Rights), ; (ii) either Party’s liability arising from its fraud, gross negligence or willful misconduct; or (iii) any failure of Customer to pay any Fees.
17.1. Escalation Procedure. If the Parties are unable to settle a dispute arising from this Agreement, then notice shall be provided to the respective authorized representatives of Customer and One. In the event such representatives are not able to resolve the dispute within five (5) days of the receipt of such notice, then such dispute shall be escalated to the immediate supervisors of such representatives, who shall have an additional ten (10) days to resolve such dispute.
17.2. Continued Performance. Subject to the provisions of this Agreement and other than the specific subject matter of the dispute, the Parties shall continue the performance of their obligations during the resolution of any dispute or disagreement unless and until this Agreement is terminated or expires in accordance with its terms.
17.3. Injunctive Relief. Notwithstanding the provisions of this Section 17, each Party shall retain the right and nothing shall prevent either Party from seeking immediate injunctive relief if, in its judgment, such relief is necessary to protect its interests prior to utilizing or completing the dispute resolution processes described in Section 17.1, including without limitation, in respect of a Claim by a Party based on a breach of the confidentiality obligations herein.
18.1. Assignment. This Agreement may not be assigned by either Party in whole or in part, without the other Party’s prior written consent, provided that One may assign this Agreement to a third party in connection with a sale of all or substantially all of its business.
18.2. Relationship of Parties. In all matters relating to this Agreement, One and Customer are independent contractors of each other and nothing will be construed to create any association, partnership, joint venture, or relationship of agency or employment between the One and Customer.
18.3. Publicity. Customer authorizes One to (i) include Customer in any client or subscriber list; and (ii) use Customer’s name and/or trademarks for marketing and publicity on its website, in marketing materials and/or in press releases.
18.4. Excusable Delays. Should One incur any delay in the provision of the Services resulting from any errors, defects or other problems contained in the information, materials and/or instructions provided to it by Customer, One shall be excused from performance during the period of such delay and Customer shall remain liable for any Fees incurred during such delay.
18.5. Force Majeure. Neither Party shall be liable to the other for a failure or delay in the performance of any obligation under this Agreement if such failure or delay is caused by an event beyond a Party’s control, including, but not limited to, any fire, power failure, act of God, labour dispute or government measure or other cause beyond such Party’s reasonable control (a “Force Majeure Event”), provided that such Party gives prompt written notice of the Force Majeure Event to the other Party and resumes performance of its obligations as soon as possible. Either Party may terminate this Agreement without penalty if such delay due to a Force Majeure Event continues for a period of ninety (90) days without cure.
18.6. Survival. The following sections shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Section 2.4 (De-Identified Data); Section 11 (Confidentiality); Section 12 (Proprietary Rights); Section 15 (Indemnity and Limitation of Liability); Section 17 (Dispute Resolution); and Section 18.7 (Governing Law). For greater certainty, Customer’s obligations in respect of any Fees owing shall also survive, whether or not such Fees have been invoiced by One.
18.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario for any legal proceedings arising out of this Agreement or the performance of the obligations hereunder.
18.8. Notices. All notices under the terms of this Agreement shall be given in writing and sent by registered mail or email transmission (with confirmation of receipt) or shall be delivered by hand to One at the following address:
One Wealth Technologies
PO Box 20163 - RPO Calgary Place
Attention: Legal Department
and to Customer at the address set out on the applicable Order Form or to any other person or address of which either Party may notify the other in writing from time to time. All notices shall be presumed to have been received when they are hand delivered, or two (2) days following the day of email transmission.
18.9. Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct.
18.10. Waiver. A waiver of any provision of this Agreement shall only be valid if provided in writing and shall only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall continue in full force and effect.
18.11. Remedies Cumulative. No single or partial exercise of any right or remedy under this Agreement shall preclude any other or further exercise of any other right or remedy in this Agreement or as provided at law or in equity. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
18.12. Number and Gender. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders.
18.13. Currency. Unless otherwise stated, all dollar amounts referenced in this Agreement are stated in Canadian dollars.
18.14. Amendment. This Agreement may only be amended by written agreement duly executed by authorized representatives of the Parties.
18.15. Counterparts and electronically transmitted. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. A document signed and transmitted electronically by facsimile or email is to be treated as an original and shall have the same binding effect as an original signature on an original document.
18.16. Non-Solicitation. During the Term of this Agreement and continuing for a period of twelve (12) months after its expiry or termination, Customer shall not directly or indirectly, solicit or attempt to solicit for employment, hire, employ, contract or recruit for the purposes of engagement, any person who is or was within the previous twelve (12) month period an employee of Wealth or Management.
18.7. Entire Agreement. This Agreement and the Schedule attached hereto shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall replace all prior promises or understandings, oral or written.