This Agreement, including any and all documents incorporated herein by reference, constitutes the entire Agreement between the Customer and Company. This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Company and the Customer (the “Parties“).
2. Governing Law
This Agreement shall be interpreted in accordance with and be governed in all respects by the laws of the Province of British Columbia and the laws of Canada applicable therein. The courts of British Columbia shall have exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this Agreement or any alleged breach of this Agreement.
Subject to the terms and conditions of this Agreement, Company will provide the services (the “Services“) specified in the Order (the “Order“) attached as Exhibit A hereto and incorporated into this Agreement by reference. Services shall be delivered in accordance with the description of the Services as set out in the Service Portfolio (“Service Portfolio“) attached hereto as Exhibit ‘D’. Services shall be in accordance with the Service Level Agreement (“SLA) attached hereto as Exhibit ‘C’ throughout the Recurring Services Term. Additional Services may be agreed to by both parties through the execution of additional Order forms, each of which shall be incorporated into this Agreement by reference and shall be effective as of the date provided thereon. Except as expressly amended by an additional Order(s), all terms and conditions of this Agreement shall remain in full force and effect. The Acceptable Use Policy (“AUP“) is attached as Exhibit B hereto and the Service Level Agreement (“SLA“) related to the Services is attached as Exhibit C hereto.
4. Fees and Payment
4.1 Payment Date and Billing Information
The Customer agrees to pay Company the one time and recurring fees for Services based on the rates identified in the Order. The Customer is fully responsible to ensure payment of any and all amounts due are paid on time. Invoices are provided via email or, upon written request, via fax or mail. Dollar amounts and costs indicated on the Order are in Canadian currency unless otherwise stated. The Customer is responsible for keeping its contact and billing information up-to-date and accurate, including but not limited to a properly functioning and reachable email address and telephone number. In consideration for Company’s delivery of the Services, Customer shall pay the fees as follows:
(a) any Recurring or One Time fees set out in the Order are due on immediate receipt of invoice, invoicing to start on the commencement of the Recurring Services Term (as defined in Section 5.1 hereof). Any partial months shall be invoiced on a prorated basis;
(d) any other One Time, Professional Services, Utilization, Overage or other fees are due on receipt of invoice.
4.2 Overdue Accounts
Fees are payable by Customer within thirty (30) calendar days of invoice date. All fees not paid within thirty (30) days of their due date are subject to a late charge calculated at a rate of 2% per month (12%/year). Returned checks will also be charged a $150 NSF fee. Company may suspend Services with ten (10) days written notice to the Customer if the Customer has any balance sixty (60) days or more past due. In the event of suspension of Services, the Term shall, subject to any right of termination contained herein, be extended by an amount of time equal to that of the suspension. Company may terminate this Agreement with ten (10) days’ notice to the Customer if the Customer has any balance ninety (90) days or more past due.
4.3 Other Charges
The Customer will pay all sales, excise and other value-added taxes, duties or levies of any kind whatsoever imposed by any authority, government agency or commission in connection with Company’s Services as provided under this Agreement. The Company reserves the right to charge the Customer a standard hourly rate of $150/hour to cover professional services provided the Customer beyond those specified in the Order. Notwithstanding anything else contained herein, Customer shall indemnify Company and hold Company harmless against any liability that Company has for any additional taxes (including for greater certainty any interest, penalties, fines, or other similar charges) arising as a result of or in connection with any delay or failure by Customer, for any reason: (a) to charge, collect and/or remit to the relevant taxation authority any taxes due under or in relation to this Agreement; or (b) to file any tax or information return with the relevant taxation authority in connection with the charging, collection and/or remittance of taxes.
Company may at any time perform a credit analysis of Customer. Customer shall provide any credit information reasonably requested by Company. Following such credit analysis, Company may, in its sole discretion, require Customer to pay the total fees, or any portion thereof, in advance of providing Services and/or require other assurances to secure Customer’s payment obligations under this Agreement.
Company may increase the fees for any Renewal Term upon 30 days notice prior to the commencement of such Renewal Term. In any case, Company has the right to increase the fees by the national Consumer Price Index on each annual anniversary during the Term.
Notwithstanding the foregoing, fees reasonably disputed by Customer (along with late fees attributable to such amounts) shall not be due and payable if, and only if, Customer:
(a) pays all undisputed fees on or before the date specified in section 4.1 hereof;
(b) presents a written statement of any billing discrepancies to Company in reasonable detail together with appropriate supporting documentation no later than ten (10) days after the date of such invoice; and
(c) negotiates in good faith with Company for the purpose of resolving such dispute within ten (10) days of submitting such written statement to Company. In the event such dispute is mutually agreed upon and resolved in favour of Company, Customer agrees to pay Company the disputed fees together with any applicable late fees within five (5) days of the resolution. In the event such dispute is mutually agreed upon and resolved in favour of Customer, Customer will receive a credit for the disputed fees and any applicable late fees actually invoiced. In the event the dispute is not resolved in such thirty (30) day period, either party may apply to a court of competent jurisdiction for resolution.
The term of any Order (the “Term“) shall commence on the date of this Agreement and shall include the Recurring Services Term (as defined herein). The term for the recurring services (“Recurring Services Term”) shall begin on the date on which Customer is notified that the Service has been installed and is ready to accept Customer’s data (the “Recurring Services Notice”). The duration of the Recurring Services Term shall be as stated on each individual Order. Throughout this Agreement, both the Term and the Recurring Services Term may be collectively referred to as the “Term”. Invoicing will be in accordance with the payment provisions set out in Section 4 hereof. To align with the Company’s standard billing cycle, the first invoice will include a prorated portion to align with the first day of the following month and the recurring portion of the Order for the next period.
Customer has three (3) business days to test the Services, and notify Company in writing if the Service is in material non-compliance with the applicable technical specifications set forth in the Order. If no written notice is received from Customer within three (3) business days or if Customer accepts the Service in writing within that three (3) business day period, the Recurring Services Term shall be the date of the Recurring Services Notice. If Customer delivers notice within the three (3) business day period of material non-compliance with the applicable technical specifications set forth in the Order, Company shall promptly take such reasonable action as is necessary to correct any such non-compliance in the Services and shall notify Customer in writing when such service is ready and available for use, thereby initiating the procedure and timelines set out in this Section 5.2 for such services.
6. Renewal Term
The Recurring Services Term shall automatically renew for additional successive terms equal to the initial Recurring Services Term (the “Renewal Term”) unless either party delivers to the other party written notice of its intention not to renew the Agreement no less than ninety (90) days prior to the expiration of the then current Term.
7. Customer Obligations
7.1 Services Contingent
Company’s obligations to initiate delivery of and continue to perform the Services shall be contingent upon Customer fulfilling the following obligations at its sole cost and liability:
(a) timely payment of all fees;
(b) complete and maintain throughout the Term accurate contact and authorized user information as well as any form required for the ongoing delivery of Services such as credit application forms and IP Justification Forms, as may be applicable;
(c) comply throughout the Term with the AUP;
(d) provide Company throughout the Term with a valid and subsisting right to transmit the Customer Software and Custom Applications, if any, over those Compay controlled IP Addresses assigned to Customer by Company;
(e) to not exercise or otherwise make use of any administrative access rights to the Customer System without first following the procedure set forth in Section 16;
(f) Customer shall apply and keep any Custom Applications updated with the latest release of critical security patches available from its software vendors and shall within fourteen (14) days of the information being published or becoming available, adhere to security advisories as from time to time provided/published by (i) Company, (ii) security related web sites, including, but not limited to CERT and Bugtraq, and (iii) the vendors of the Custom Applications;
8. Termination of Agreement
Upon the termination of expiration of this Agreement, the Company will not be liable to the Customer for any damages, expenditures, loss of profits, or prospective profits of any kind or nature sustained, arising out of, or alleged to have been sustained arising out of such termination or expiration.
8.2 Company’s Termination for Material Breach or Insolvency
Notwithstanding anything to the contrary contained in the Agreement, Company may, at its option and in addition to any other rights and remedies available at law or equity, terminate the Agreement:
(a) anytime during the suspension period referenced in section 4.2 hereof upon thirty (30) days prior notice;
(b) immediately upon the actual breach or documented threatened breach of the warranty contained in Section 7.1(c), 7.1(f), or 9.3, hereof;
(c) upon thirty (30) days prior written notice and opportunity to cure upon the actual breach or documented threatened breach of any warranties or obligations, other than breach of Section 7.1(a),7.1(c), 7.1(f), or 9.3; or
(d) upon Customer becoming insolvent or bankrupt or making an assignment for the benefit of creditors or appointing (or having appointed) a receiver or trustee in bankruptcy or upon any proceeding in bankruptcy, receivership or liquidation being instituted against Customer and continuing for thirty days without being dismissed.
8.3 Customer’s Termination
Customer may terminate the Agreement upon Company’s failure to cure a material breach within thirty (30) days of Company receiving written notice of such breach.
8.4 SLA not Material.
For the purposes of Section 8.3, a failure to achieve the SLA shall not be deemed a material breach of the Agreement.
8.5 Termination Policy
On termination or expiration of this Agreement, all rights, benefits and obligations under this Agreement terminate other than the Customer’s responsibilities to pay all outstanding fees. Customer shall cease using the Services and applicable obligations on the part of the Company will cease (including that the Company will disconnect Customer’s access to the Services). Furthermore, the Company shall have no responsibility for the restoration of Services. All Custom Applications, Customer Software and customer owned data will be deleted. The Customer may request a copy of the Custom Applications, Customer Software and/or customer owned data at any time prior to termination or during the Transition Assistance as per Section 8.6. The Customer will cover all costs associated with the software and/or data recovery and/or restoration of Services at the Company’s standard business rates.
8.6 Transition Assistance
Upon the natural expiration of this Agreement and a deposit equal to the last month of Services fees, save and except in the event Customer’s account is not current at the time of termination, the Company will, upon thirty (30) days prior written request, continue to provide the Services and will provide the other professional services referred to in this section 8.6 (the “Transition Assistance“) for as long as the Transition Assistance is requested and paid for by Customer, up to a maximum of 90 days after the last day of the Term (the “Transition Period”). The Company will co-operate with Customer to assist in a transition of the Services to Customer and/or other service providers, but shall in no event be required to disclose any Company Confidential Information or intellectual property. All services provided by the Company and agreed to in writing by the Customer during the Transition Period which are incremental to the standard Services provided by the Company hereunder shall be paid for on a time-and-materials basis by Customer at the Company’s standard business rates.
9. Warranty / Limitation of Liability
9.1 Warranty and Disclaimer
Subject to the qualifications and limitations contained herein, the Company warrants that the Services will, in all material respects, conform to the description of Services provided in the Services Portfolio. Except as set expressly forth in this Agreement, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW the Company makes no warrantIES, GUARANTEES, REPRESENTATIONS OR ENDORSEMENTS, express or implied, as to the Services, including but not limited to any warranty or condition of merchantable quality or fitness for particular purpose, NON-INFRINGEMENT OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. Maintenance and system repairs, upgrades and reconfigurations may temporarily impair Services. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH COMPANY USES COMMERCIALLY REASONABLE EFFORTS TO IMPLEMENT THE SERVICES TO PROTECT CUSTOMERS DATA, COMPANY DOES NOT PROVIDE OR GUARANTEE ABSOLUTE SECURITY.
9.2 Limitation of Liability
EXCEPT FOR CLAIMS ARISING FROM SECTIONS 9.3, 9.4 OR 10 HEREOF, Neither party shall be liable IN CONNECTION WITH ANY SINGLE EVENT OR SERIES OF EVENTS for any special, punitive, indirect, or consequential losses or damages, including BUT NOT LIMITED TO loss of profit, LOST BUSINESS REVENUE, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, even if advised of the possibility thereof, for any claim arising under this Agreement, regardless of cause of action. Furthermore, Customer agrees that Customer’s sole and exclusive remedy for COMPANY’s failure to provide the Services in accordance with the applicable SLA shall be as set out in such SLA. EXCEPT FOR LIABILITY OR BREACH RELATED TO BODILY INJURY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER’S CONFIDENTIAL INFORMATION BY AN AUTHORIZED AGENT OF THE COMPANY, THE COMPANY SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER FOR AN AMOUNT GREATER THAN THE AMOUNT PAID BY THE CUSTOMER TO COMPANY FOR THE SERVICES IN THE SIX (6) MONTHS PRIOR TO NOTICE OF THE CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS: (A) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (B) COMPANY’S ABILITY TO OFFER AND CUSTOMER’S ABILITY TO PURCHASE SERVICES OR ANY PORTION THEREOF UNDER THIS AGREEMENT WOULD BE IMPACTED.
9.3 Intellectual Property Indemnity
If either party (the “Indemnitee”) promptly notifies the other (the “Indemnitor”) of a claim against the Indemnitee that any of the Services or Customer supplied hardware, software or data, as the case may be, infringes a presently existing proprietary right of a third party, and if the Indemnitee specifies in such notice that the claim is based to any extent upon an alleged infringement enforceable in Canada of any portion of the Indemnitor’s properties (Services or Customer supplied hardware, software or data, as the case may be), the Indemnitor, with respect to and to the extent of the portion of the claim pertaining to the Indemnitor’s properties, shall indemnify and defend such claim at its expense and pay any costs or damages that may be incurred or finally awarded against the Indemnitee. THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9.4 PIPEDA and CASL Indemnity
Notwithstanding any limitation of liability otherwise contained in the Agreement, Customer agrees that it shall indemnify, defend and hold Company, its officers, directors, employees and contractors harmless from any and all claims, costs, liabilities and damages which arise from or relate to Customers failure to comply in the conduct of its business with the Canada Anti-Spam Law (“CASL”) and/or the Personal Information Protection and Electronic Documents Act or other similarly applicable federal or provincial/state statute.
9.5 Customer Representations & Warranties
Customer represents and warrants at its sole cost and liability that:
(a) Customer is the true and lawful owner or licensee of the Customer Software and Custom Applications and has the full right and ability to use such Customer Software and Custom Applications as contemplated in this Agreement;
(b) Customer’s use of Company controlled IP Addresses or use of the Services including any data transmitted, stored or received on the Services will not (i) violate any applicable laws, regulations or Company policies, (ii) cause a breach of any agreement with any third parties, or (iii) interfere with other Company customer’s use of any Company services or Company’s network;
(c) Customer has, where applicable, obtained all necessary consents to conduct its business in compliance with the Canada Anti-Spam Law (“CASL”) and the Personal Information Protection and Electronic Documents Act or other similarly applicable federal or provincial/state statute, and;
(d) Customer has the right to place Customer Hardware, if any, in the Facility for the purposes of receiving the Services as contemplated herein.
10. Confidentiality of Customer and Personal Information
10.1 Confidential Information
(a) Confidential Information. The parties acknowledge that it will be necessary for each of them to disclose or make available to each other information and materials, including but not limited to business information concerning a party and its clients, specifications, research, software, trade secrets, discoveries, ideas, know-how, designs, drawings, flow charts, data, marketing plans and financial or business information that is disclosed whether orally visually or in a material form, (collectively the “Confidential Information”) that may be confidential or proprietary or may contain valuable trade secrets, and that such information may already have been disclosed prior to the Commencement Date. Prior to disclosure, the disclosing party shall use reasonable efforts to designate all Confidential Information by marking the information with the word “Confidential” or similar wording. However, Customer and Company agree that, even if not so marked, the Order, the Services Portfolio, any Custom Application, any Customer Hardware, Customer Software, information concerning Company’s facilities and all documents, descriptions and embodiments of any of them, shall be deemed Confidential Information.
(b) Exceptions. Information will not be considered to be Confidential Information if it:
(i) is already, or otherwise becomes, publicly known by third parties as a result of no act or omission of the receiving party;
(ii) is lawfully received, after disclosure hereunder, from a third party having right to disseminate the information without restriction on disclosure;
(iii) is furnished to others by the disclosing party without restriction on disclosure; or
(iv) can be shown by the receiving party to have been independently developed by such party prior to the execution of this Agreement.
(c) Injunctive Relief. The parties agree that any breach by either party or any of its officers, directors, or employees, of any provisions of this Section 10.1 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies at law or in equity.
10.2 Customer Data
As between the Company and Customer, Customer owns and retains all right, title and interest in all intellectual property rights pertaining to the Customer’s software and data (“Customer Data”), subject only to the Company’s right to access and use the Customer Data for the benefit of the Customer in connection with providing Services pursuant to this Agreement. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use the Customer Data. Customer represents that it has and will have the right to provide Customer Data to the Company in connection with the Services pursuant to this Agreement, including, but not limited to, obtaining applicable consents from identifiable individuals.
11. Force Majeure
The Company shall not be liable for any delay or failure in performance of Services due to events beyond the Company’s direct control, including war, riot, embargoes, strikes, casualties, accidents, fire, earthquake, flood, acts of God, government intervention or action, supplier or vendor failure.
12. Acceptable Use Policy
The Customer agrees that the Company reserves the right to amend the terms of the AUP from time to time. The Customer will receive (30) thirty days’ notice of any such change. Unless the Customer notifies the Company in writing that such a change materially restricts their ability to do business within fourteen (14) days of notification, the Customer’s continued use of the Company’s Services after modification of the Acceptable Use Policy constitutes Customer’s acceptance of the modifications.
13. Unlawful Use of Services
The Company will employ the systems described in the Services Portfolio to guard the security of the Services. However, the Customer acknowledges that it accepts all risk to itself of any unauthorized or illegal use of the Company’s Services or any inter-connected network by the Customer or third parties. The Company provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with the Customer’s Services.
14. IP Addresses
The Company assigns IP (Internet Protocol) addresses to the Customer as part of the Services. The Customer has no right to use IP addresses not assigned to it by the Company, to move IPs between different servers or accounts or to use IP addresses in any manner not authorized by the Company. The Company maintains control of all IP addresses that are assigned to the Customer and reserves the right to change or remove them at its discretion with sixty (60) days written notification to the Customer. Customer acknowledges that IP addresses are assigned to Customer as part of the Services and are not transferrable and control of the IP addresses remains with Company and no right, title or interest in or to the IP addresses passes to Customer. Customer agrees that any renumbering required of IP addresses upon termination or expiration of this Agreement is the sole and exclusive responsibility of Customer .Customer acknowledges the allocation of public IP addresses governed by the policies of the American Registry of Internet Numbers (ARIN). These policies dictate that name-based hosting must be used whenever possible. The Company reserves the right to periodically review IP address usage and revoke authorization to use those IP addresses not being utilized or where name-based hosting could be used.
15. The Company Administrative Access and Administrative Tools
The Company retains the right to administrative access to any and all devices on its network for the purposes of management, maintenance, inventory and activities related to the delivery of Services. To facilitate this, all devices must have functioning the Company administrative privileges and agents, including a functioning Company monitoring agent, an administrative agent and an inventory agent. Administrative privileges and agents may be added, removed or modified by the Company at any time. The Customer will not tamper, hinder, delete or in any way change the functioning of these administrative tools. Any tampering or removal of the tools used by the Company to manage the Service constitutes a material breach of this Agreement. Customer agrees that it shall not have administrative access to the Services, or any part thereof, unless specifically agreed to by Company, such administrative access to be subject to the following conditions:
(a) the SLA shall be suspended upon Customer being granted administrative access to the Services;
(b) Company shall not be liable for, and makes no guarantees whatsoever, express or implied, with regard to the Services performed during the period of time in which the SLA is suspended;
(c) the SLA and any liability incurred by Company under this Agreement shall be reinstated only upon verification by Company of the operational status of the Services following the conclusion of Customer’s administrative access; and
(d) any corrective action deemed necessary and undertaken by Company resulting from Customer’s administrative access shall be charged, and paid for by Customer, at Company’s then prevailing hourly rates.
16. No Solicitation
Unless otherwise agreed in writing by the parties, during the Term of this Agreement and for a period of six (6) months following its termination for any reason each party agrees not to solicit for employment any current employee of the other party. This restriction does not prevent the hiring of such employees who respond to indirect, passive solicitation such as advertising, job boards, or web sites.
17. Data Backups and Archiving
If included on the Order as part of the Service, Company will employ the systems described in the Services Portfolio to help protect the reliability of its backup and archiving services, and will provide Customer with logs of all backup processes upon request. However, due to the technical limitations regarding backups on live servers and the possibility of data corruption on backup or restore, the Company cannot guarantee all or any data can be restored from any particular backup. Upon request, the Company can alert the Customer by email to any failed backup jobs detected by the system.
18. Rights to Intellectual Property
Customer hereby grants Company a non-exclusive, non-sublicenseable, royalty free, worldwide license to use Customer’s trademarks, service marks, trade names, logos, or other commercial or product designations (collectively the “Marks”) for the purposes of marketing and promoting Customer’s services to the public. Customer may terminate Company’s right to use the Marks, in whole or in part, if the usage of such Marks does not adhere to Customer’s then current standards for such Marks. Neither party will acquire any right, title or ownership interest in and to any intellectual property owned or licensed by the other party in connection with the Services. Also, in the context of software provided by the Customer to the Company as part of its Services, the Customer will ensure that it is and remains compliant with all applicable third-party software licensing agreements.
Headings are used throughout this Agreement for convenience only and no provision, term or condition of this Agreement shall be construed by reference to any heading of this Agreement.
Neither this Agreement nor any rights hereunder may be assigned by the Customer, without the prior written consent of the Company, such consent not to be unreasonably withheld. Customer may not re-sell any of the Services provided hereunder without the express prior written consent of the Company. The Company may assign this Agreement or any rights hereunder only upon the sale of all or substantially all of the Company’s assets to a third-party.
Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties that accrued prior to the effective date of the termination. The following sections shall survive termination or expiration of this Agreement: Sections 2, 4.3, 4.6, 7, 8, 9, 10, 14, 16, 17 and 19.