Paragon™ Testing Referral Program Agreement
Last Updated: January 25, 2018
1. Introduction
1.1 Background: Paragon operates an English language proficiency test business and offers various English language proficiency tests and related products and services. Paragon has established a referral program whereby authorized persons refer potential new customers to Paragon in exchange for a referral fee in respect of certain transactions completed promptly after the referral. The Parties wish to enter into an agreement pursuant to which Referral Partner will participate in the referral program, as set out in this Agreement.
1.2 Key Definitions: In this Agreement: (a) “Customer” means an individual (natural person), other than Referral Partner or any of Referral Partner’s Representatives (defined in section 7.1(c)), who purchases a registration for a Paragon Test session or a Paragon Product directly from Paragon; (b) “Paragon Product” means a product (such as test preparation materials) relating to a Paragon Test that is specified in Schedule “A” or otherwise expressly agreed in writing by the Parties; (c) “Paragon Test” means an English language proficiency test, administered by or on behalf of Paragon, specified in Schedule “A” or otherwise expressly agreed in writing by the Parties; (d) “Referral ID” means a unique alpha-numeric code assigned by Paragon to Referral Partner; (e) “Referral Link” means a graphical advertisement, in the form provided by Paragon to Referral Partner, that contains a Referral ID and a hyperlink to the Transaction Site; (f) “Referral Partner Program” means the business arrangement set out in this Agreement whereby Referral Partner earns a fee in respect of Qualifying Purchases (defined in section 3.1), and includes Referral Links, Referral IDs, Marketing Materials (defined in section 2.4) Paragon Branding (defined in section 2.5) and the Transaction Site; (g) “Referral Partner Website Page” means a single page of a website that is owned and operated by Referral Partner and is specified by the Parties pursuant to this Agreement; (h) “Term” means the term of this Agreement; and (i) “Transaction Site” means a web page operated by Paragon through which potential Customers can make Qualifying Purchases.
2. Referral Links and Marketing Materials
2.1 Referral Links: Within a reasonable period after the Effective Date, Paragon will electronically deliver or otherwise make available to Referral Partner one or more Referral Links for use by Referral Partner in accordance with this Agreement. A Referral Link may be in the form of a text link, badge, button or banner, and may be designated for use on a specific Referral Partner Website Page.
2.2 Referral Partner Website Pages
(a) General: The initial Referral Partner Website Pages are identified (by URL) in Schedule “A”. The Parties in their discretion may expressly agree in writing from time to time to add or delete Referral Partner Website Pages.
(b) Notice of Changes: Referral Partner will promptly give Paragon notice of any significant change to the nature or content of a Referral Partner Website Page.
(c) Review: If access to a Referral Partner Website Page is restricted (e.g. limited to certain qualified persons), then on request by Paragon Referral Partner will provide Paragon with access to the Referral Partner Website Page to inspect and verify Referral Partner’s compliance with this Agreement.
2.3 Use of Referral Links: Throughout the Term, Referral Partner will display each Referral Link on the designated Referral Partner Website Page only (not on any other website page or social media page) for the sole purpose of advertising and promoting the applicable Paragon Test and enabling individuals, free of charge, to use the Referral Link to access the Transaction Site. Referral Partner will not use, or authorize or permit any other person to use, any Referral Link or any Referral ID included in a Referral Link in any other manner or for any other purpose whatsoever.
2.4 Marketing Materials: Paragon in its discretion may from time to time deliver or make available to Referral Partner certain advertising and marketing materials regarding Paragon Tests for use on Referral Partner Website Pages (collectively “Marketing Materials”). Subject to the provisions of this Agreement, Paragon hereby grants to Referral Partner a non-exclusive, non-assignable, non-transferable, non-sub-licensable, limited, restricted and revocable license during the Term to display Marketing Materials on Referral Partner Website Pages for the sole purpose of advertising and promoting the applicable Paragon Test.
2.5 Paragon Branding: Referral Partner acknowledges that each Referral Link may include Paragon’s trademarks, slogans and other branding elements (collectively “Paragon Branding”). Subject to the provisions of this Agreement, Paragon hereby grants to Referral Partner a non-exclusive, non-assignable, non-transferable, non-sub-licensable, limited, restricted and revocable license during the Term to display Paragon Branding as part of each Referral Link for the sole purpose of advertising and promoting the applicable Paragon Test.
2.6 Restrictions: Referral Partner will not: (a) use or display any Referral Link, Referral ID, Paragon Branding or Marketing Materials in any manner or for any purpose other than as expressly set out in this Agreement; (b) disclose or distribute any Referral Link using any media or method (including email, text message or messaging on social media) other than displaying the Referral Link on the Referral Partner Website Page; (c) alter, change or modify any Referral Link, Referral ID, Paragon Branding or Marketing Materials in any way whatsoever without Paragon’s express, prior written consent; (d) assign, authorize, license, sublicense, grant or create any interest in, to or associated with any Referral Link, Referral ID, Paragon Branding or Marketing Materials; (e) use any Referral Link, Paragon Branding or Marketing Materials in any manner or for any purpose that is critical or disparaging of Paragon or any Paragon Test, or that might diminish or otherwise damage Paragon’s reputation and goodwill, or that implies any sponsorship or endorsement by Paragon of any person (including Referral Partner) or any business, product or service.
2.7 Changes: Paragon in its discretion may change or modify any Referral Link, Referral ID, Paragon Branding or Marketing Materials from time to time, and on request by Paragon Referral Partner will promptly implement each changed or modified item.
2.8 Ownership and Benefit/Good Will: Referral Partner acknowledges Paragon’s sole ownership of each Referral Link, Paragon Branding and Marketing Materials and all intellectual property rights in each of those items and all of the goodwill relating to each of those items. Referral Partner will not acquire any right, title or interest in, to or associated with any Referral Link, Paragon Branding or Marketing Materials other than the limited licenses to use those items as expressly set out in this Agreement. All of the benefit and goodwill associated with Referral Partner’s use of each Referral Link, Paragon Branding and Marketing Materials will enure entirely to Paragon. Referral Partner will not: (a) contest or challenge Paragon’s exclusive ownership of all Referral Links, Paragon Branding and Marketing Materials and all related intellectual property rights; (b) infringe, violate or misappropriate any Paragon Branding or Marketing Materials or any related intellectual property rights; (c) commit any act or omission that may adversely affect or impair Paragon’s ability to obtain, register, protect and enforce its rights throughout the world in, to and associated with all Referral Links, Paragon Branding and Marketing Materials and all related intellectual property rights; (d) adopt, use or apply to register, anywhere in the world, any trademark, service mark, trade name, corporate name, trade dress, slogan, logo, design, sign, symbol, Internet domain name, Internet address or social media account name that is identical or confusingly similar to any Paragon Branding or that incorporates or is derived from or based on any Paragon Branding; or (e) assist, permit, or encourage any other person to do any of the foregoing in this section 2.8. All rights not expressly granted by Paragon under this Agreement are reserved by Paragon.
3. Qualifying Purchases
3.1 Definition: In this Agreement, “Qualifying Purchase” means a completed and fully paid transaction made during a single browser session for the purchase of a registration to attend a session of a Paragon Test or a Paragon Product that is made through the Transaction Site by a Customer not more than twenty-four (24) hours (according to data recorded by the Transaction Site) after the Customer first accesses the Transaction Site using a Referral Link displayed on the applicable Referral Partner Website Page.
3.2 Operation of Transaction Site: As between the Parties, Paragon will have sole control over: (a) the operation of the Transaction Site; (b) identifying each Customer who accesses the Transaction Site using a Referral Link displayed on the applicable Referral Partner Website Page; (c) determining whether a transaction by a Customer through the Transaction Site is a Qualifying Purchase; and (d) processing and fulfilling each Qualifying Purchase.
3.3 Qualifying Purchases: Notwithstanding any other provision of this Agreement: (a) each Qualifying Purchase is governed solely by Paragon’s terms and conditions, policies and procedures (including policies regarding returns and refunds) established and changed by Paragon in its discretion from time to time without any notice or liability to Referral Partner; (b) Paragon in its discretion will establish and change from time to time the fees and charges payable by each Customer for a Qualifying Purchase without any notice or liability to Referral Partner; (c) Referral Partner is not a party to any Qualifying Purchase or any other transaction by a Customer through the Transaction Site; (d) Paragon in its discretion may refuse to deal with any potential Customer or reject, refuse, cancel or terminate any order for a Qualifying Purchase without any notice or liability to Referral Partner.
3.4 Changes/Termination: Notwithstanding any other provision of this Agreement, Paragon in its discretion may change, suspend, or discontinue the Transaction Site and any or all Paragon Tests and Paragon Products without any notice or liability to Referral Partner.
3.5 Acknowledgement: Referral Partner acknowledges that the technologies and methods used by the Transaction Site to identify Qualifying Purchases are subject to error, might not always be accurate or correct, will depend on the relevant Customer’s proper use of the Referral Link and their browser settings, and may be circumvented or disabled by the relevant Customer or affected by circumstances beyond Paragon’s control. If there is any dispute regarding the identification of a Qualifying Purchase or any related matter, then Paragon’s reasonable decision will be conclusive and binding on Referral Partner.
4. Referral Fees and Payment
4.1 Definitions: In this Agreement: (a) “Purchase Price” means the total price actually paid by a Customer to Paragon for a Qualifying Purchase, not including Taxes or any shipping, handling or other charges; and (b) “Taxes” means all federal, state, provincial or municipal sales, use, value-added, property, excise, import, foreign, withholding or other governmental taxes, duties, charges, levies, fees, excises, tariffs and assessments of any nature whatsoever now or hereafter imposed by any governmental authority in any jurisdiction, including any interest, additions to tax or penalties applicable thereto.
4.2 Referral Fee: Paragon will pay to Referral Partner a one-time referral fee (the “Referral Fee”) in respect of each Qualifying Purchase during the Term. The Referral Fee will be calculated based on the Purchase Price for the Qualifying Purchase and using the Referral Fee Rate set out in Schedule “A”. The Referral Fee will be calculated and paid in Canadian currency. The Referral Fee in respect of a Qualifying Purchase will not be payable unless and until Paragon actually receives full payment of the Purchase Price for the Qualifying Purchase. If the Purchase Price for a Qualifying Purchase is reduced or eliminated, whether as a result of a refund, return, rebate, charge back or for any other reason in Paragon’s discretion, then the Referral Fee in respect of the Qualifying Purchase will be adjusted accordingly. Paragon does not guarantee and is not required to pay any minimum amount of Referral Fees to Referral Partner.
4.3 Payment and Reports: Approximately thirty (30) days after the end of each quarter, Paragon will: (a) pay to Referral Partner the Referral Fees due to Referral Partner in respect of all Qualifying Purchases during the quarter, less all withholdings and deductions required by applicable law or authorized under this Agreement; and (b) deliver (by email) to Referral Partner a written report (each a “Report”) showing the calculation of the Referral Fees paid to Referral Partner; except that if the total amount of all outstanding Referral Fees is less than $100 for any quarter then Paragon in its discretion may defer payment of the Referral Fees and delivery of a Report until the outstanding Referral Fees owing to Referral Partner accumulate to at least $100 or this Agreement is terminated. Unless the Parties expressly agree in writing otherwise, Paragon will make payments by wire/electronic funds transfer to Referral Partner’s bank account designated in writing by Referral Partner from time to time, and Referral Partner will ensure that its designated bank account is able to receive payments by wire/electronic funds transfer and will pay all fees and charges associated with each wire/electronic funds transfer. To protect Customers’ privacy, Reports will not include Customers’ names, contact information or other personal information. Each Report will be deemed correct unless Referral Partner delivers a dispute notice to Paragon within thirty (30) days after the date of the Report. Paragon may set-off any and all amounts owing to Paragon by Referral Partner from and against any and all amounts due, coming due, or owing to Referral Partner by Paragon.
4.4 Taxes and Withholdings: All amounts payable to Referral Partner under this Agreement are inclusive of all Taxes. Referral Partner is solely responsible and liable for, and will pay and remit promptly, all Taxes associated with, based on or due as a result of the amounts paid by Paragon to Referral Partner under this Agreement, and all related interest, penalties and expenses. Notwithstanding the foregoing in this section 4.4, Referral Partner authorizes Paragon to withhold and remit to the applicable governmental authorities all Taxes required by law to be withheld and remitted in connection with any payment under this Agreement.
4.5 No Other Remuneration: Referral Fees payable under this Agreement are full and complete compensation for Referral Partner’s performance of Referral Partner’s obligations under this Agreement. Except for Referral Fees, Referral Partner is not entitled to any fees, commissions or other remuneration or reimbursement arising from, connected with, or relating to this Agreement, Qualifying Purchases or any related matter. Without limiting the foregoing in this section 4.5, Referral Partner is not entitled to any fees, commissions or other remuneration based on or relating to any transaction between any Customer and Paragon that is not a Qualifying Purchase, including any transaction between a Customer and Paragon that is completed more than twenty-four (24) hours after the Customer first accesses the Transaction Site using a Referral Link.
5. Referral Partner’s Obligations
5.1 Referral Partner Website Page
(a) Responsibility: Referral Partner is solely responsible and liable for: (i) creating and operating Referral Partner Website Pages; (ii) all content on or accessible through Referral Partner Website Pages; and (iii) all use of Referral Partner Website Pages by Internet users.
(b) Content: Referral Partner will ensure that throughout the Term each Referral Partner Website Page and all of its content: (i) comply with all applicable laws and community standards; (ii) do not infringe, violate or misappropriate the rights of any person; (iii) are not directed to persons under 13 years of age; and (iv) do not contain, reference or distribute any information, messages, images or other materials that are abusive, contain nudity, deceptive, defamatory, derogatory, discriminatory, false, fraudulent, harassing, harmful, hateful, indecent, objectionable, obscene, offensive, pornographic, profane, racist, sexist, sexually explicit, threatening, violent, vulgar or otherwise objectionable, or which advocate, depict, encourage, or tend to incite any unlawful activities.
(c) Paragon-Related Content: Referral Partner will not include on or make available through any Referral Partner Website Page any information regarding Paragon or any of Paragon’s products or services (including Paragon Tests and Paragon Products) except for the applicable Referral Link and the applicable Marketing Materials (if any), each without any change or modification by Referral Partner, or other materials expressly approved in writing in advance by Paragon. Without limiting the foregoing in this section 5.1(c), Referral Partner will not: (i) advertise or promote any prices or fees for any Paragon Test or Paragon Product; or (ii) include any Paragon Branding or any other reference to Paragon or a Paragon Test or Paragon Product in the Referral Partner Website Page’s domain name, URL, meta-tags or hidden text.
5.2 Notifications: Referral Partner will immediately give to Paragon notice of any: (a) suspected or actual problems or defects with any Referral Link or Referral ID; or (b) complaint received by Referral Partner from any person (including any Customer) regarding any Referral Link, Paragon Test or Paragon Product.
5.3 Customers: Referral Partner will not directly or indirectly: (i) restrict or limit any person’s use of any Referral Link or Referral ID, or require or accept any fee or other consideration from any person for or in connection with the person’s use of any Referral Link or Referral ID; or (ii) collect, use or disclose any information about any person who uses any Referral Link.
5.4 Legal Compliance: Referral Partner will at all times comply with all laws (including laws regarding personal data/information protection, privacy, consumer protection and business practices, advertising and marketing) applicable to Referral Partner, Referral Partner Website Pages and Referral Partner’s performance of Referral Partner’s obligations and exercise of Referral Partner’s rights under this Agreement. Without limiting the foregoing in this section 5.4, under no circumstances whatsoever will Referral Partner use any unsolicited electronic messages (including emails, text messages and messages sent on social media sites) to directly or indirectly advertise, market or promote Paragon, any Paragon Test or Paragon Product or the Transaction Site.
5.5 Accurate Information/No Representations: Referral Partner will provide each Customer or potential Customer with accurate information regarding Paragon Tests and Paragon Products. Referral Partner will not make or give any representation, warranty, condition, guarantee or other promise about any Paragon Test or Paragon Product.
5.6 Feedback: If Referral Partner or any of its personnel gives to Paragon any feedback (including ideas or suggestions for enhancements or improvements) about the Referral Partner Program, any Paragon Test or Paragon Materials or the Transaction Site, then Paragon and its successors, assigns and licensees may use and commercialize the feedback without providing any compensation to Referral Partner or any other person.
6. Representations/Warranties and Disclaimer
6.1 Mutual Representations/Warranties: Each Party represents and warrants that: (a) the Party has, and will have at all times throughout the Term, all requisite corporate power, capacity, authority and approvals to enter into, execute and deliver this Agreement and to perform the Party’s obligations and exercise the Party’s rights under this Agreement; and (b) the Party’s execution and performance of this Agreement will not conflict with, or result in the breach of, any obligation or duty (contractual or otherwise) that the Party now or in the future owes to any other person.
6.2 Representations/Warranties by Referral Partner: Referral Partner represents and warrants that Referral Partner: (a) is and will remain throughout the Term the sole owner and operator of the Referral Partner Website Page; and (b) has, and will have at all times throughout the Term, all rights and licenses necessary to lawfully perform all of Referral Partner’s obligations and exercise all of Referral Partner’s rights under this Agreement.
6.3 Disclaimer: To the maximum extent permitted by applicable law, and except for the representations and warranties expressly set out in this Agreement, the Referral Partner Program is provided on an ““as is”, “as available” and “with all faults” basis, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory or arising from custom or trade usage or by any course of dealing or course of performance, including any representation, warranty, condition or guarantee of or relating to accuracy, capacity, completeness, delays, durability, errors, fitness for a particular purpose, lack of negligence, viruses or other harmful component, errors, or interrupted service, merchantability, non-infringement, performance, results, quality, timeliness, title, or workmanlike effort, all of which are hereby disclaimed by Paragon to the fullest extent permitted by law. Participation in the Referral Partner Program is at Referral Partner’s own risk.
6.4 Costs and Acknowledgment: Except as expressly set out in this Agreement, each Party will bear the Party’s own costs and expenses in connection with the Party’s performance of the Party’s obligations and exercise of the Party’s rights under this Agreement. Each Party acknowledges that neither Party has made or received any representation, warranty or guarantee, express or implied, as to the potential sales volume, fees, profits or success of Products.
6.5 Sole Remedy: If Referral Partner is dissatisfied with the Referral Partner Program, then Referral Partner’s sole and exclusive remedy is to terminate this Agreement for convenience and cease participating in the Referral Partner Program.
7. Liability Exclusions and Limitations
7.1 Exclusions/Limitations: Notwithstanding any provision of this Agreement except section 7.2, and to the maximum extent permitted by applicable law:
(a) Exclusions: the liability (if any) of each Party and the Party’s Representatives to the other Party and the other Party’s Representatives arising from, connected with or relating to this Agreement, the subject matter of this Agreement or any related matter is limited to direct damages suffered by the other Party only, and in no event and under no circumstances will either Party or the Party’s Representatives be liable to the other Party or the other Party’s Representatives for any indirect, incidental, consequential, special, punitive or exemplary loss or damage of any nature or kind whatsoever or for any loss of data, loss of information, loss of business, loss of markets, loss of savings, loss of income, loss of revenue, loss of profits, loss of use, loss of production or loss of goodwill;
(b) Limitation: in no event and under no circumstances will the total aggregate amount of liability of either Party and the Party’s Representatives to the other Party and the other Party’s Representatives arising from, connected with or relating to this Agreement, the subject matter of this Agreement or any related matter ever exceed the total amount of Referral Fees actually paid by Paragon to Referral Partner during the six (6) months immediately before the date on which the liability arose; and
(c) Application/Definition: this section 7.1 applies to liability under any theory (including contract, tort, or statute), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by the liable Party or the liable Party’s Representatives, even if other remedies are not available or do not adequately compensate for the loss or damage, even if the liable Party knows or ought to have known of the possibility of the loss or damage being incurred, and regardless of whether or not the loss or damage was foreseeable. In this agreement, “Representatives” means directors, officers, employees, agents, consultants, subcontractors, representatives and advisors.
7.2 Exceptions: Section 7.1 does not apply to liability for breach of any of sections 2.6, 2.8, 5.1(b), 5.1(c), 5.3 and 5.5 or for wilful misconduct or fraud.
7.3 Allocation of Risk: The allocation of risk set out in this Agreement (including in this section 7) is an essential part of the bargain between the Parties, a controlling factor in setting the amount of Referral Fees, and an inducement to each Party to enter into this Agreement.
8. Term and Termination
8.1 Term and Termination: This Agreement is effective as of the Effective Date and will remain in full force and effect unless and until terminated by either Party pursuant to this Agreement. Either Party in its discretion and for its sole convenience may terminate this Agreement at any time effective on seven (7) days’ notice of termination to the other Party.
8.2 Consequences of Termination: On termination of this Agreement: (a) each Party will remain fully responsible and liable for all of the Party’s obligations and liabilities arising prior to the termination of this Agreement; (b) Referral Partner will immediately remove all Referral Links and Marketing Materials from all Referral Partner Website Pages and immediately cease using the Marketing Materials; and (c) within thirty (30) days after the terminate date Paragon will pay to Referral Partner all outstanding and unpaid Referral Fees, provided that Paragon in its discretion may withhold the payment of Referral Fees for up to ninety (90) days to ensure that there is no overpayment to Referral Partner as a result of refunds, returns, rebates, charge backs or other reasons.
8.3 No Compensation on Termination: Notwithstanding any other provision of this Agreement, on termination of this Agreement Referral Partner will not be entitled (under this Agreement or otherwise) to any compensation, remuneration, reimbursement or other payment in respect of any commitments, expenditures or investments suffered, made, or incurred by Referral Partner before the termination of this Agreement or as a result of the termination of this Agreement.
8.4 Survival: Notwithstanding any other provision of this Agreement, each of sections 2.6, 2.8, 3.5, 4.4, 4.5, 5.6, 6.3, 6.4, 6.5, 7, 8.2, 8.3, 8.4 and 9, and all other provisions necessary to the interpretation or enforcement of those sections, will survive indefinitely after the termination of this Agreement and will remain in full force and effect and be binding on the Parties.
8.5 Suspension: Notwithstanding any other provision of this Agreement, Paragon may suspend the operation of any Referral Link immediately on notice to Referral Partner if any of the following events (each a “Suspension Event”) occurs: (a) Paragon reasonably believes that Referral Partner is in breach of this Agreement (b) Paragon reasonably believes that the integrity, functionality, operation, performance, results, reliability or security of the Transaction Site or any related technology system or data might have been damaged, disrupted, compromised or degraded, or to prevent a risk of damage, disruption, compromise or degradation to the integrity, functionality, operation, performance, results, reliability or security of the Transaction Site or any related technology system or data; or (c) Paragon reasonably believes that the suspension is required by applicable law or is reasonably necessary to prevent or mitigate an imminent risk of harm, loss, damage or liability. To the extent reasonably practicable, Paragon will give Referral Partner reasonable prior notice of a suspension pursuant to this section 8.5. Paragon’s suspension of the operation of any Referral Link pursuant to this section 8.5 will not be a breach of this Agreement by Paragon or give rise to any liability by Paragon to Referral Partner or any other person.
9. General
9.1 Relationship: The Parties are non-exclusive independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. Neither Party is authorized to make any representation or commitment, or create any obligation whatsoever, on behalf of the other Party. The Parties acknowledge that the word “partner” is commonly used to designate a marketing relationship between unaffiliated persons, and is used in accordance with that common usage in this Agreement and in related discussions and documents. This Agreement and the use of the word “partner” in this Agreement or otherwise to describe the relationship between the Parties will not be considered to, and is not intended to, create any partnership, agency, joint venture or other similar relationship between the Parties or any responsibility or liability by either Party for the acts or omissions of the other Party or any of the other Party’s Representatives.
9.2 Governing Law: This Agreement, the subject matter of this Agreement and the resulting relationship between the Parties will be governed by, and construed in accordance with, the laws of the Province of British Columbia, Canada and the laws of Canada applicable in British Columbia, excluding any rules of private international law or the conflict of laws that would lead to the application of the laws of any other jurisdiction.
9.3 Disputes: All disputes, controversies and claims between the Parties arising under, out of, in connection with, or in relation to this Agreement, the subject matter of this Agreement and the resulting relationship between the Parties will be referred to and finally resolved by arbitration pursuant to the National Arbitration Rules (as amended, superseded or replaced from time to time) of the ADR Institute of Canada Inc. (the “Institute”) by one (1) arbitrator appointed in accordance with those rules, to the extent that the rules do not conflict with this section 9.3. The arbitration will be private and confidential, and will be administered by the Institute. If the Institute is not operative, the arbitration will proceed ad hoc and be governed by the Arbitration Act (British Columbia). The place of arbitration will be Vancouver, British Columbia, and the language used in the arbitration will be the English language. Any arbitration award is final and binding and judgment on the award may be entered in any court having jurisdiction for the enforcement of the award. Notwithstanding the foregoing in this section 9.3, either Party may seek preliminary or temporary injunctive relief and other remedies from the courts of British Columbia sitting in Vancouver to avoid irreparable harm or to preserve the status quo, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of all of those matters and any other matter that is not properly subject to arbitration pursuant to this section 9.3.
9.4 Notices: Except as expressly set out in this Agreement, all notices to be given under this Agreement will be in writing and will be delivered by hand/courier or email to: (a) Referral Partner at the addresses and numbers set out in Schedule “A” or at other addresses and numbers for notice specified by Referral Partner in a notice pursuant to this section 9.4; and (b) Paragon at the addresses and numbers set out in Schedule “A” or at other addresses and numbers for notice specified by Paragon in a notice pursuant to this section 9.4. A notice delivered by hand/courier will be deemed delivered when it is received. A notice delivered by email will be deemed delivered on the next business day (at the place of delivery) following the date of transmittal and acknowledgement of receipt by the recipient (not an automated acknowledgement). For greater certainty, this section 9.4 does not apply to operational communications (including the delivery of Reports) regarding the Parties’ day-to-day performance of their obligations under this Agreement.
9.5 Assignment: Neither Party will assign this Agreement without the express, prior written consent of the other Party, except that Paragon may (without Referral Partner’s consent) assign this Agreement and Paragon’s rights and obligations under this Agreement to a corporate affiliate of Paragon or in connection with any merger, consolidation or reorganization of Paragon or any acquisition or sale of all or substantially all of Paragon’s business relating to the Paragon Tests.
9.6 Miscellaneous: English is and will be the language of this Agreement and all documents (including invoices and notices) in connection with this Agreement. If a provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable or invalid for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. Except as expressly set out in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which the Party may be entitled under this Agreement or at law, and each Party may pursue any and all of the Party’s rights and remedies concurrently, consecutively and alternatively. No consent or waiver by a Party to or of any breach of this Agreement by the other Party will be effective unless in writing and signed by both Parties, or deemed or construed to be a consent to or waiver of a continuing breach or any other breach of this Agreement by the other Party. If a Party’s consent or approval is required under this Agreement, then the Party in its discretion and for its sole convenience may withhold or refuse the consent or approval unless this Agreement expressly states otherwise. This Agreement will enure to the benefit of and will be binding on each Party and its successors and permitted assigns. Each Party will execute any further documents and do any further acts or things that may be necessary to implement and carry out the intent of this Agreement. Any document that is part of this Agreement may be executed and delivered in one or more counterparts (which may be executed and delivered by facsimile transmission or electronically in PDF or similar format), and each executed and delivered counterpart will be deemed an original and all counterparts will together constitute one and the same document.
9.7 Force Majeure: Notwithstanding any other provision of this Agreement, a Party will not be liable for any delay in performing or failure to perform any of the Party’s obligations under this Agreement if and to the extent performance is delayed or prevented due to a cause beyond the Party’s reasonable control; and any delay or failure of that kind will not be a breach of this Agreement and the time for performance of the affected obligations will be extended by a period that is reasonable in the circumstances.
9.8 Interpretation: In this Agreement: (a) a reference to “this Agreement” and other similar terms refers to this Agreement (including Schedule “A”) as a whole, and not just to the particular document or provision in which those words appear; (b) headings are for convenience only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c) words importing the singular number only include the plural, and vice versa; (d) reference to a day, month, quarter or year means a calendar day, calendar month, calendar quarter or calendar year, unless expressly stated otherwise; (e) a reference to currency is to the lawful money of Canada, unless expressly stated otherwise; (f) “discretion” means a person’s sole, absolute and unfettered discretion; (g) “law” includes common law, equity, statutes and regulations, and a reference to a specific statute includes all regulations made under the statute and all amendments to, or replacements of, the statute or any regulation made under the statute in force from time to time; (h) “including” or “includes” means including or includes (as applicable) without limitation or restriction; (i) “in writing” or similar terms includes email, unless expressly stated otherwise; and (j) “person” includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity
9.9 Complete Agreement: This Agreement sets out the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between the Parties regarding the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties regarding the subject matter of this Agreement other than as expressly set out in this Agreement. This Agreement may not be amended except by a written document (not an email) that expressly states that it is an amendment to this Agreement and that is signed by both Parties or their respective successors or permitted assigns.
