- Entire Agreement. This Agreement contains the entire agreement between the parties hereto for the Services described therein and cannot be changed, altered or cancelled except by written agreement signed by all parties hereto. Neither party shall be bound by any oral agreements or special arrangements contrary to or in addition to the terms and conditions stated herein.
- Defined Terms. The following defined terms shall have the following meaning where used in this Agreement:
- “Web Site”: An electronic message designed for the purposes of electronic transfer via the Internet of any or all of the following multimedia services: text, graphics, pictures, sound and full motion video, used for promotion of products, services or information or entertainment for the purpose of broadcast to an audience.
- “Business Day” means each of Monday, Tuesday, Wednesday, Thursday and Friday except where any such day occurs on any federal or provincial statutory holiday publicly observed in the same time zone as the location of the head office of the Customer.
- “Business Hours” means 9:00 a.m. to 5:00 p.m. PST, Monday through Friday, except Saturdays, Sundays and statutory and other publicly recognized holidays that are observed in the same time zone as the location of the head office of the Customer.
- “Effective Date” means the date described in the cover page above upon which this Agreement shall come into effect.
- “Web Page(s)”: An electronic partition of a single page or section within a Web Site.
- “Home Page”: A Web Page that would present itself served via the Internet, as one’s identity, signature and/or front door or basic fundamental structure within their virtual space.
- “Customer Properties” shall mean all text, pictures, sound, graphics, video and other data supplied by the Customer to the Vendor pursuant to this Agreement.
- “Vendor Properties” shall mean the Work Product, except for the Customer Properties and any Tools.
- “Third Party Products” shall mean the computer hardware, computer software, files and all other technology and products owned or distributed by third parties, and delivered to the Customer by the Vendor in accordance with the terms and conditions of this Agreement, excluding the Tools.
- “Personally Identifiable Information” or “PII” means: (i) any information that identifies an individual, such as name, social insurance number or other government issued number, date of birth, address, telephone number, biometric data, mother’s maiden name, or other personally identifiable information, (ii) any “non-public personal information”, and (iii) “protected health information”.
- “Tools” shall mean any tools, in object code form, which the Vendor licenses from a third party, but shall not include any tools that the Vendor has already developed or creates pursuant to this Agreement, which shall be considered “Work Product”. By way of example, Tools could include, without limitation, toolbars for maneuvering between Web Pages, search engines, Java applets and ActiveX controls.
- “Work Product” shall mean all HTML and/or Java files, graphics files, animation files, data files, technology, scripting and programming (in object code form), all documentation, and each and every deliverable developed by the Vendor and delivered to the Customer in accordance with the terms and conditions of this Agreement, but excluding the Customer Properties, Tools and the Third Party Products.
- Services. The Vendor agrees to provide to the Customer those start-up services more particularly described in the cover page hereto (the “Start-Up Services”). Unless otherwise agreed upon between the parties in writing, the Customer empowers the Vendor to choose which Internet Service Provider (ISP) the Web Site created by the Vendor for the Customer in accordance with this Agreement resides upon and to allow storage of information received by Customer or from the general public on such server on a monthly basis, subject to the limits and as more particularly described in the cover page hereto and in these Terms and Conditions (collectively, the “Server Services”). The Customer may also request, and the Vendor may provide, subject to the Vendor’s written agreement and the availability of Vendor personnel and equipment, additional services (the ‘‘Additional Services’’; Start-Up Services, Server Services and Additional Services are collectively referred to as the “Services”). All Services under this Agreement shall be performed in accordance with the Vendor’s standard procedures, so long as such procedures do not conflict with the express terms of this Agreement.
- Pricing. Each of the Services provided and selected as options will be priced separately pursuant to the cover page and the Customer agrees to pay the Vendor the amounts for Services as specified on the cover page of this Agreement. Unless otherwise provided on the cover page, fees for the Services are due monthly in advance on or before the first day of each month during the term of this Agreement. If payments are not received in full, within  days of the date of invoice, the Vendor has the right to immediately cease displaying the Web Site presence and providing the Services. All work and deliverables resulting from the provision of the Services shall remain the property of the Vendor until payment is received in full. Without limiting the Vendor’s rights and remedies under this Agreement, at law or in equity, where a payment is not made in full when due under this Agreement, the amount unpaid shall bear interest at a rate of 2% per month compounded monthly (effective rate of 26.8% per annum), but not more than the highest rate allowed by law, and calculated by reference to the amount outstanding from day to day, before and after judgment, until paid.
[This Agreement cannot be cancelled without penalty after ten (10) business days of the date signed. Cancellations must be received by Info-Tel Multimedia Offices in writing addressed to PO Box 1254, Vernon BC, V1T 6N6 or via e-mail addressed to ] [Deposits made in accordance with this Agreement are refundable only at the discretion of the Vendor. In the event the Vendor agrees to cancel this Agreement, any payments or deposits made by the Customer may, at the discretion of the Vendor, be applied to commissions, third party charges and administration costs incurred by the Vendor. No refunds will, however, be made unless and until all charges for commissions, administration costs and any other charges incurred by the Vendor have been paid in full by the Customer.]
- Proprietary Rights, Ownership of Data, Signature. The Customer acknowledges and agrees that the Vendor Properties and all trade marks, trade names, copyrights, programs, specifications, designs, techniques and documentation utilized or developed by the Vendor (collectively, the “Proprietary Materials”) in connection with the provisions of Services under this Agreement, unless in the public domain, are proprietary to the Vendor and shall remain the sole property of the Vendor. Inclusive are enhancements, additions, corrections, modifications and updates to the Vendor Properties and to the Proprietary Materials. Unless otherwise expressed in this Agreement, once the Web Site and Services are paid for in full, the Web Site shall become the property of the Customer. The Customer agrees to give the Vendor or its appointed agents “on demand” access to the installed designs and the Customer further agrees that the Vendor shall have the right to remove that design from public posting for failure to adhere to the terms of this Agreement, including violating any licensing agreements or failure to pay fees duly assessed, until the Agreement is terminated. The Vendor cannot accept responsibility for any alterations caused by third parties occurring to the Customer’s Web Pages once placed. Such alterations include, but are not limited to, additions, modifications or deletions.
- Vendor Properties. As between the Vendor and the Customer, the Vendor shall at all times be and remain the sole and exclusive owner of the Vendor Properties. To the extent that any work performed by the Customer under this Agreement may be covered by the definition of “Vendor Properties,” the Customer hereby irrevocably assigns and conveys its entire right, title and interest therein and all copies thereof, and all copyright and other proprietary rights therein, without further consideration, free from any claim or lien or retention of rights, to the Vendor. Except as expressly authorized in this Agreement, the Customer shall not: (i) copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile or disassemble the Vendor Properties, the Proprietary Materials, Tools or any Third Party Products; or (ii) circumvent any user limits or other use restrictions that are built into the Services; (iii) access the Services in order to: (I) build a competitive product or Services; or (II) copy any ideas, features, functions or graphics of the Services.
- Customer Properties. Except as otherwise described in this Agreement, as between the Vendor and the Customer, the Customer will at all times be and remain the sole and exclusive owner of the Customer Properties. The Vendor hereby assigns and conveys its entire right, title and interest therein and all copies thereof, and all copyright and other proprietary rights therein, without further consideration, free from any claim or lien or retention of rights, to the Customer.
- Third Party Properties. Except as otherwise described in this Agreement, nothing herein shall cause or imply any sale, licence or other transfer of proprietary rights of or in any Third Party Products or Tools from one party to this Agreement to the other party. THE VENDOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING ANY THIRD PARTY SOFTWARE, SERVICES OR OTHER PRODUCTS THAT MAY OR MAY NOT BE INCLUDED AS PART OF THE SERVICES AND AS BETWEEN THE CUSTOMER AND THE VENDOR, SUCH SERVICES ARE PROVIDED “AS IS.” The Customer’s use of any Third Party Products and Tools is, as applicable, governed by the terms of the Customer’s agreement with the third party.
- Vendor’s License. The Vendor shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by the Customer relating to the operation of the Services.
- Vendor Trade Marks. “InfoTel” and all other trade marks and service marks adopted by the Vendor from time to time to identify the Services shall remain the Vendor’s property and the Customer shall have no rights in any of same. Except as may be authorized in writing by the Vendor, the Customer shall not reproduce or use any of the Vendor’s trade marks, trade names, service marks and/or service names.
- Customer Responsibilities.
- The Customer shall be solely responsible for:
(i) the selection of products and services, including the Services, to achieve the Customer’s intended results; and
(ii) any information, programs and other information that the Customer receives as a result of the use of the Services including, without limitation, the entire responsibility for any losses of data, programs, breaches of security, viruses and disabling or harmful devices that the Customer may download or otherwise experience as a result of the Customer’s use of the Services.
- Co-operation. The Customer shall co-operate with and assist the Vendor by providing to the Vendor such information and such access to the Customer’s personnel, facilities, equipment, databases, software and other resources as the Vendor may reasonably request in connection with the Services. All such information and access will be considered the Customer’s deliverables, the timely, complete and accurate performance of which is a condition upon the Vendor meeting its delivery dates described in this Agreement. In order to avoid missed deadlines, the Customer must supply the Vendor with all parts of the Web Site, including text and graphics, within [ten] Business Days of the signing of this Agreement or as otherwise and mutually agreed upon in writing.
- Availability. The Customer shall ensure the availability and stability of its computing environment to support the Services and acceptance testing set forth in this Agreement, if and to the extent required in connection with the particular Services.
- Business from Web Site. The Customer agrees to use the Services in a manner consistent with any and all applicable laws and regulations. If the Customer wants to sell products or services through the Web Site, it is the sole responsibility of the Customer to ensure that the business is compliant with any and all laws and regulations. The Vendor shall not accept responsibility for the way the Customer uses the Web Site.
- Acceptance. All Work Product delivered under this Agreement shall be subject to testing by the Customer to determine whether the Work Product delivered contains the functionality and other objective requirements (the “Acceptance Criteria”) described in this Agreement. This acceptance test shall run for [ten (10)] Business Days after delivery of the Work Product (the “Testing Period”). During the Testing Period, the Customer shall either:
- notify the Vendor in writing of its acceptance of the Work Product; or
- provide the Vendor with written notice of any defects which cause the Acceptance Criteria not to be met.
The Vendor shall use commercially reasonable efforts to cure any defects described in such written notification and the Customer will have an additional [ten (10)] Business Days to retest the Work Product to determine whether the Vendor has cured the defects listed in the Customer’s notice. This process shall be repeated until the Work Product is accepted or deemed to have been accepted. All Work Product (or revised Work Product) will be deemed to have been accepted if no written notice of defects is provided to the Vendor within [ten (10)] Business Days after delivery of the Work Product.
- Vendor Acknowledgment. The Work Product delivered shall contain an acknowledgment on the Home Page that the Vendor is Web master and shall contain a hyperlink to the Vendor’s web site. The Customer agrees not to modify this acknowledgment or hyperlink in any way (including, without limitation, the content, size, graphics, color or location of the hyperlink) without first obtaining the prior written consent of the Vendor. In addition, the Customer agrees to promptly notify the Vendor should the link become inoperable. The Customer also agrees that the Vendor may list the Customer as a client of the Vendor and may include a link to the Customer’s Web Site on the Vendor’s Web Site.
- Acceptable Use Policy (“AUP”). The Customer agrees to comply with the Vendor’s AUP attached as Schedule “A” to this Agreement. The Vendor may change its AUP to add restrictions on the Customer’s use of the Services provided that any new restrictions are reasonable and consistent with hosting industry norms. Any changes to the AUP made during the Term of this Agreement will become effective as to the Customer upon the first to occur of: (i) renewal of the Term, (ii) the Customer’s execution of a new/additional contract for the Customer’s configuration that incorporates the revised AUP by reference, or (iii) thirty (30) days following the Vendor’s notice to the Customer describing the change. If a change to the AUP materially and adversely affects the Customer, the Customer may terminate the Agreement by giving the Vendor prior written notice of termination on such grounds no later than thirty (30) days following the date the change became effective. If the Customer terminates the Services because the Vendor has modified its AUP in a way that adversely affects the Customer, the Vendor may decide to waive that change as to the Customer and retain this Agreement in place for the remainder of the then Term.
- No Spam. UCE/UBE or “Spam” originating from a server located on the Vendor’s network or associated with a Vendor server is not tolerated. This includes any e-mail that promotes Web Sites hosted on a server located on the Vendor’s network but is sent from an e-mail address not associated with that Vendor account. The Customer shall not use the Services for chain letters, junk mail, bulk-email or any use of distribution lists to any person who has not given specific permission to be included in such a process.
- Customer Scripts. It is the responsibility of the Customer to maintain the latest exploit free version of any third party scripts to be uploaded/installed on the Customer’s Web Site. If a script that the Customer uploads to the Vendor’s servers is found to have security lapses and allows a third party to “hack”, “exploit”, “deface” the Web Site(s) it is the responsibility of the Customer to remove that script. The Customer shall be responsible for the use of the Services by any employee of the Customer, any person to whom the Customer has given access to the Services and any person who gains access to the Customer’s data or the Services as a result of the Customer’s failure to use reasonable security precautions, even if such use was not authorized by the Customer.
- Third Party Software. The Customer agrees to use only properly licensed third party software in connection with the Customer’s use of the Services. The Customer agrees to use reasonable security precautions in light of its use of the Services including all upgrade and security patches provided by web applications installed and/or running under the Vendor’s Services. This also includes encrypting any PII transmitted to or from, or stored on, the Vendor’s servers or storage devices the Customer uses. The Customer must cooperate with the Vendor’s reasonable investigation of Service outages, security problems and any suspected breach of this Agreement.
- Archives/Back-up. It is the responsibility of the Customer to keep up-to-date archives of their backed up data. The Vendor does not provide or keep records or copies of its customers’ Web Site files for customer use and is not responsible for any loss of data including, but not limited to, hardware failure, backup failure, hacking or accidental deletion.
- Website Files. Website files are the sole responsibility of the Customer and should the Customer decide to cancel their Services it shall be the Customer’s responsibility to ensure that they have backed up and downloaded the Web Site files and any emails from the Vendor server prior to requesting that the Vendor cancel their account. Once the cancellation request has been submitted to the Vendor a cancelation of the Web Site hosting service may occur anytime after the request is received by the Vendor and when a cancellation request is completed the Customer’s hosting account with the Vendor and their Web Site files are permanently removed from the Vendor’s servers.
- Vendor Warranty. The Vendor represents and warrants that it will use commercially reasonable efforts to ensure the Work Product will substantially conform to the Acceptance Criteria for a period of [thirty (30)] days after the completion of the Testing Period (provided the Customer makes no changes to the Work Product, the server, the hardware or any technology related to any of them).
- Warranty Exclusions and Limitations.
- The Vendor does not provide any warranty, condition or guaranty of any kind to the Customer with respect to the Third Party Products or Tools including, without limitation, any warranty, condition, or guarantee of availability, functionality, use or performance relating thereto, howsoever arising.
- The Vendor’s entire liability, and the Customer’s sole remedy against the Vendor, for breach of any or all of the warranties contained in this Agreement including, without limitation, Section 7, shall be limited to requiring the Vendor, at the Vendor’s option, to correct the error, defect or malfunction giving rise to such breach of warranty (“Error”).
- Any warranty provided by the Vendor in this Agreement including, without limitation, Section 7, shall not apply, either in whole or in part, to any Error which is caused by:
(i) any change to the Services, Work Product, Proprietary Materials, Third Party Products, Tools or to any deliverable made by the Customer or by any other party other than the Vendor or the Vendor’s authorized representatives;
(ii) Third Party Products or Tools including any interface or link between the Work Product, any deliverable, any Third Party Products and/or Tools;
(iii) the use of the Services, Work Product or any deliverable in conjunction with any software, hardware, firmware, data, information or technology not provided or approved by the Vendor in writing;
(iv) failure of the Customer to provide a suitable installation and/or operating environment for the Work Product for any deliverable;
(v) the medium used by the Customer to connect with, access, and/or use the Services, Work Product and/or any deliverable, including each Internet connection, public telecommunications line, dedicated line, virtual private network, wide area network, wireless network, satellite or other form of medium used by the Customer;
(vi) any privacy, security or other similar failure by the Customer’s computer hardware, software or networks, or any third party software, technology or data to protect against intrusion, misappropriation, conversion or theft;
(vii) any failure of the Customer to comply with this Agreement; or
(x) accidents, transportation, neglect and/or misuse of the Work Product or any deliverable by any party other than the Vendor or the Vendor’s authorized representatives.
- THE VENDOR DOES NOT WARRANT THAT THE WORK PRODUCT, THIRD PARTY PRODUCTS, TOOLS AND/OR DELIVERABLE(S) WILL BE ERROR AND VIRUS FREE. UNFORTUNATELY, COMPUTERS NEED ROUTINE MAINTENANCE AND SOMETIMES BREAK DOWN; ALSO, THE VENDOR CANNOT CONTROL THE TIMING OR VOLUME OF ATTEMPTS TO ACCESS THE VENDOR’S SERVER. AS A RESULT, THE VENDOR DOES NOT GUARANTEE THAT THE CUSTOMER OR ANY THIRD PARTIES WILL BE ABLE TO ACCESS THE WEB SITE HOMEPAGE CREATED BY THE VENDOR AT ANY PARTICULAR TIME. THE VENDOR’S ACCESS SERVICES ARE PROVIDED ON AN AS-IS, AS-AVAILABLE BASIS. THE VENDOR’S CUSTOMERS ARE DIVERSE AND THEIR WEBSITES AND THE FUNCTION OF THOSE WEBSITES ARE DIVERSE AND THE VENDOR CANNOT BE HELD RESPONSIBLE FOR ANY SERVICE INTERRUPTION DUE TO CUSTOMERS’ ERRORS INCLUDING, BUT NOT LIMITED TO, SPAMMING, THE TARGET OF A DDOS ATTACK OR ANY OTHER INTERNET OR CYBER ATTACK.
- EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 7 AND FOR THOSE EXPRESS WARRANTIES, IF ANY, PROVIDED BY THE VENDOR IN ANY OTHER PART OF THIS AGREEMENT, ALL WORK PRODUCT, THIRD PARTY PRODUCTS, TOOLS, DELIVERABLE(S), MEDIA, DOCUMENTATION AND SERVICES PROVIDED BY THE VENDOR TO THE CUSTOMER PURSUANT TO THIS AGREEMENT ARE PROVIDED BY THE VENDOR, AND ARE FINALLY ACCEPTED BY THE CUSTOMER, ON AN “AS IS” BASIS. THE VENDOR HEREBY DISCLAIMS ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES AND CONDITIONS OF EVERY KIND PERTAINING IN ANY WAY TO ANY OR ALL OF SAME INCLUDING, WITHOUT LIMITATION, EACH WARRANTY, CONDITION AND/OR GUARANTY OF QUALITY, MERCHANTABILITY, OPERATION, ADEQUACY, SUITABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM OR OTHERWISE.
- THE VENDOR MAKES NO REPRESENTATION, NOR PROVIDES ANY WARRANTY, CONDITION, OR GUARANTEE, REGARDING THE ADEQUACY OF THE SERVICES, WORK PRODUCT, THIRD PARTY PRODUCTS, TOOLS, DELIVERABLE(S), MEDIA, DOCUMENTATION AND/OR SERVICES PROVIDED BY THE VENDOR TO CUSTOMER UNDER THIS AGREEMENT NEITHER FOR ANY PARTICULAR PURPOSE, NOR WITH RESPECT TO THEIR ADEQUACY TO PRODUCE ANY PARTICULAR RESULT.
- Exclusion of Certain Types of Damages and Limitation of Overall Liability.
(a) IN NO EVENT SHALL THE VENDOR BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC, AGGRAVATED OR PUNITIVE DAMAGES OF ANY KIND (EVEN IF THE CUSTOMER OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING) INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEB SITE CONTENTS, EMAIL DATA AND OR DATABASE CONTENTS, INOPERABILITY OF THE VENDOR’S SERVERS, LOSS OF REVENUE OR PROFIT, LOSS OF USE OF THE WORK PRODUCT, THIRD PARTY PRODUCTS, TOOLS AND/OR DELIVERABLE(S), COST OF CAPITAL, COST OF SUBSTITUTE SOFTWARE OR SERVICES, DOWN-TIME COSTS, OR CLAIMS OF CUSTOMERS, HOWSOEVER ARISING, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
(b) THE VENDOR’S TOTAL, CUMULATIVE AND AGGREGATE LIABILITY TO THE CUSTOMER CONCERNING ANY AND ALL CLAIMS THAT MAY ARISE OUT OF, ARE CONNECTED WITH, OR RESULT FROM THIS AGREEMENT, WHETHER RELATING TO THE ACCESS TO, USE OF, OPERATION, OR PERFORMANCE OF THE WORK PRODUCT, THIRD PARTY PRODUCTS, TOOLS, DELIVERABLE(S), MEDIA, DOCUMENTATION AND/OR SERVICES, AND/OR ANY OTHER ACT, OMISSION, OR EVENT, WHETHER ARISING IN TORT, CONTRACT, EQUITY, RESTITUTION OR BASED UPON ANY OTHER THEORY OF LIABILITY, HOWSOEVER ARISING, SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE CUSTOMER TO THE VENDOR UNDER THIS AGREEMENT DURING THE [SIX (6)] MONTH PERIOD IMMEDIATELY PRECEDING THE DAY THE FIRST EVENT GIVING RISE TO SUCH CLAIM OR CLAIMS FROM THE CLIENT OCCURRED.
(c) THE LIMITATIONS IN THIS SECTION 9 SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. THE CUSTOMER AGREES THAT THE PROVISIONS OF THIS SECTION 9 REFLECT THE VENDOR’S PRICING OF THE SERVICES AND FAIRLY ALLOCATE RISKS BETWEEN THE VENDOR AND THE CUSTOMER, AND IS FAIR AND REASONABLE.
(d) ALL OF THE PROVISIONS OF THIS SECTION 9 SHALL SURVIVE ANY EXPIRY OR TERMINATION OF THIS AGREEMENT AND SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING SUCH EXPIRY OR TERMINATION.
- Customer Warranties.
- The Customer represents and warrants that the Customer Properties will not knowingly:
(i) violate any law or regulation including, without limitation, the laws and regulations governing export control;
(ii) be defamatory or trade libelous;
(iii) be pornographic or obscene; or
(iv) contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming defects which are intended to damage a user’s system or data.
- The Customer further represents and warrants that:
(i) the Customer has all rights necessary for the production, distribution, exhibition and exploitation of the Customer Properties as part of the Work Product consistent with the licence granted in this Agreement;
(ii) there is no outstanding contract, commitment or agreement to which the Customer is a party, or legal impediment of any kind known to the Customer, which conflicts with this Agreement or might limit, restrict or impair the rights granted hereunder;
- the information being provided to the Vendor is accurate, is not proprietary to any third party and complies with all the laws, rules and regulations concerning its form, content or usage;
- any elements of text, graphics, photos, designs, trade marks or other artwork furnished to the Vendor for inclusion in Web Pages are owned by the Customer, or that the Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend the Vendor and its subcontractors from any claim or suit arising from the use of such elements furnished by the Customer;
- it asserts no exclusive rights in the information being provided that could be infringed or violated by the Vendor giving others access to this information in the course of the Vendor’s provision of Services pursuant to this Agreement.
- No Warranties to be Provided by Customer. The Customer shall not provide or make any representations, warranties or guarantees to any party or parties regarding any of the intellectual or other property licensed or provided by the Vendor to the Customer pursuant to this Agreement. If the Customer provides any such representation, warranty or guarantee, the Customer shall do so strictly on the Customer’s own account and the Vendor shall have no responsibility to any such party or parties.
- The Customer hereby indemnifies the Vendor and its affiliates, directors, officers, employees and agents and agrees to hold them harmless from any claims, demands, liabilities, damages, losses, consequences, costs, judgments or arbitration awards including, without limitation, solicitors fees and costs, which have been or may be incurred by the Vendor:
(i) as a result of any claim based on allegations of breach by the Customer of this Agreement or of the warranties described above;
(ii) based on the use by the Customer or any third party of information or data retrieved from or produced by the Services, Work Product, Tools or Third Party Products; or
(iii) for injury to any person or property attributable in whole or in part, directly or indirectly, to any operation, function or malfunction, of the Services, Work Product, Tools or Third Party Products or any part thereof;
and further including, without limitation of the generality of the foregoing, those arising from the following:
- with respect to the Customer’s business: (A) infringement or misappropriation of any intellectual property rights; (B) defamation, libel, slander, obscenity, pornography or violation of the rights of privacy or publicity; or (C) spamming, or any other offensive, harassing or illegal conduct or violation of the AUP or anti-spam policy;
- any damage or destruction to the Vendor’s equipment or to any other accountholder, which damage is caused by, or otherwise results from, acts or omissions by the Customer, its representative(s) or its designees.
(b) The Customer further indemnifies the Vendor and its affiliates, directors, officers, employees and agents and holds it and them harmless against any claims arising from allegations that the Customer has misused any information obtained from the Vendor pursuant to this Agreement, in violation of the rights of any third party.
- Termination for Default.
(a) In the event either party fails to perform any of its material obligations under this Agreement, the other party may provide written notice of breach to such breaching party. If such breaching party does not fully cure each such breach within:
(i) ten (10) calendar days of Customer receiving written notice of breach from the Vendor with respect to Customer’s failure to pay any fees and/or other amounts due to the Vendor pursuant to this Agreement; or
(ii) thirty (30) calendar days of receiving written notice of breach from the other party in all other cases;
the party providing such notice of breach may immediately terminate this Agreement by providing written notice of termination to the breaching party.
(b) Either party may also terminate this Agreement upon written notice of termination to the other party if such other party:
(i) becomes insolvent, fails to pay its debts when due in the normal course of its business, has any of its assets seized by its creditors, or ceases to do business;
(ii) has any receiver, manager, or receiver manager appointed with respect to it and/or any of its assets;
(iii) makes any voluntary assignment in bankruptcy;
(iv) is petitioned into bankruptcy or files any proceeding in bankruptcy;
(v) seeks the benefit or protection of any statute providing any form of protection from its creditors; or
(vi) dissolves its corporate status.
- Effects of Expiry or Termination.
(a) All rights and licences granted by the Vendor to the Customer within this Agreement shall automatically terminate upon any expiry or termination of this Agreement.
(b) Upon any expiry or termination of this Agreement:
(i) the Customer shall cease all use of the Proprietary Materials, Work Product, Third Party Products and Tools (unless the Customer has been licensed directly by the third party);
(ii) the Customer shall promptly: (I) return to the Vendor all copies of the Proprietary Materials, Work Product, Third Party Products and Tools within the Customer’s possession or control; and (II) release any Internet protocol numbers, addresses or address blocks assigned to the Customer in connection with the Services, and the Customer agrees that the Vendor may take steps to change or remove any such IP addresses; and
(iii) the Customer shall promptly destroy or delete all interfaces provided by the Vendor to the Customer related to the Proprietary Materials, Work Product, Third Party Products and Tools.
(c) Any expiry or termination of this Agreement shall not relieve the Customer of its obligations to pay to the Vendor all fees, expenses and amounts that have accrued to, or that are otherwise due to, the Vendor under this Agreement, whether prior to the date of expiry or termination of this Agreement or otherwise, as well as all applicable taxes.
(d) The Customer agrees that the Vendor shall have no liability to the Customer whatsoever for any:
(i) expiry of this Agreement;
(ii) consequences of any Customer delay(s); and/or
(iii) damages arising purely as a result of the expiry or termination of this Agreement (unless directly caused by a material breach of this Agreement by the Vendor).
- Survival of Certain Terms. Notwithstanding the expiry or termination of this Agreement for any reason, the provisions contained in Sections 4, 5, 6(b), 8, 9, 12, 14, 15, 16 and 20 of this Agreement, as well as each provision of this Agreement which expressly states that such provision shall survive such expiry or termination, will continue in full force and effect.
- Solicitors Fees. In the event that either party is required to retain a solicitor to assist in the enforcement of this Agreement, including the collection by the Vendor of any amounts due from but unpaid by the Customer, then the party who breached this Agreement shall be responsible to pay the non-breaching party its reasonable solicitors fees and costs, regardless of whether the non-breaching party ultimately initiates an action in court or arbitration.
- Excusable Delay. Except for the Customer’s payment obligations to the Vendor arising under this Agreement, and the Vendor’s and the Customer’s respective obligations to one another under this Agreement and at law regarding the protection and use of the other party’s Confidential Information, Proprietary Materials and intellectual property, neither party shall be liable to the other party for failure or delay in the performance of a required obligation if such failure or delay is caused by labour dispute, strike, shortage of materials, earthquake, war, terrorist act, embargo, government act (including any law or regulation), riot, fire, flood, natural disaster, act of God or other similar cause beyond such party’s control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible. Each party to this Agreement may terminate this Agreement if such excusable delay condition continues for a period of one hundred eighty (180) calendar days, either on a consecutive or a cumulative basis.
- Suspension of Services. The Customer agrees that the Vendor may suspend Services without liability if: (a) the Vendor reasonably believes that the Services are being used in violation of this Agreement; (b) the Customer does not cooperate with the Vendor’s reasonable investigation of any suspected violation of this Agreement; (c) there is an attack on the Customer’s server(s), the Customer’s server is accessed or manipulated by a third party without the Customer’s consent, or there is another event for which the Vendor reasonably believes that the suspension of Services is necessary to protect the Vendor’s network or its other customers, or (d) if required by law. The Vendor will give the Customer advance notice of a suspension under this Section of at least twelve (12) Business Hours unless the Vendor determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect the Vendor or its other customers from imminent and significant operational or security risk.
- Problem Resolution and Escalation Process.
(a) The purpose of this Section is to describe the procedures that will be followed if the Customer and the Vendor cannot agree on any matter that requires agreement in this Agreement or if the Customer and the Vendor disagree on the interpretation, effect, performance or non-performance of this Agreement.
(b) Either the Customer or the Vendor may initiate this procedure by delivering a written notice of the dispute to the other party:
(i) Level 1
(I) The Customer’s authorized officer and the Vendor’s Manager will meet and attempt to resolve the dispute.
(II) If the dispute is not resolved within three (3) Business Days of receipt of the written notice (or other period as agreed to by the Customer and the Vendor), the dispute proceeds to Level 2.
(ii) Level 2
(I) The Customer’s authorized officer or other delegated senior official and the Vendor’s President or other delegated senior official will attempt to resolve the dispute.
(c) If the dispute is not resolved within three (3) Business Days of proceeding to Level 2 (or other period as agreed to by the Customer and the Vendor), the parties shall invoke the following mediation process:
(i) Either party shall immediately declare an impasse and provide written notice to the other within seven (7) Business Days thereof (or such other period as the parties mutually prescribe) declaring that such party wishes to proceed to mediation and setting out in reasonable detail the issue(s) to be resolved, the proposed time and place of the mediation and a list of at least three (3) and not more than five (5) proposed mediators. Each of the proposed mediators shall be an individual:
(I) with at least three (3) years experience working in an executive capacity or representing clients in the information technology sector industries; and
(II) unless otherwise agreed by the parties, with no prior connection, affiliation or other formal relationship with either party.
(ii) Upon receipt of such notice, the notified party shall have two (2) Business Days to select one of the proposed mediators as the mediator, failing which the party providing notice shall select one of its proposed mediators as the mediator. Within seven (7) Business Days following selection of the mediator the matter shall be heard by the mediator.
(iii) The mediator shall be entitled to establish his or her own practices and procedures. Each party shall co-operate fully with the mediator and shall present its case to the mediator orally and/or in writing within ten (10) Business Days following the mediator’s appointment. The mediation shall not be in the nature of arbitration as contemplated by the British Columbia Arbitration Act and the mediator’s decision shall not be binding upon the parties, but shall be considered as a bona fide attempt by the mediator to judiciously resolve the dispute. The decision of the mediator shall be rendered in a written report, not to exceed five (5) pages in length, delivered to the parties within ten (10) Business Days following the last of such presentations. The fees of the mediator shall be shared equally by the parties.
(iv) Either party may appoint replacements to the persons named in Subsection 3(b) above for purposes of this Section on written notice to the other party, provided such replacements shall have executive authority to deal with disputes covered by the terms of this Section.
(d) Both the Customer and the Vendor shall continue the performance of their respective obligations to one another under this Agreement during the period of time any problem resolution process between the parties is occurring and has not been completed.
(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 (collectively the “Confidential Information”) that may be confidential or proprietary or may contain valuable trade secrets, and that some such information may already have been disclosed prior to the Effective 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 legend. However, the Customer and the Vendor agree that, even if not so marked, the Customer Properties and the Vendor Properties are Confidential Information, as are any passwords used in connection with the Work Product, any server logs related to the Work Product and all documentation, descriptions or embodiments of any of them.
(b) Non-disclosure. Both during and after the Term of this Agreement, each of the parties agrees:
(i) to use commercially reasonable efforts to protect the Confidential Information of the other party from unauthorized use or disclosure and to use at least the same degree of care with regard thereto as it uses to protect its own Confidential Information of a like nature;
(ii) to use and reproduce the Confidential Information of the other party only as permitted under this Agreement or as needed to perform its duties hereunder; and
(iii) not to disclose or otherwise permit access to the Confidential Information of the other party to any third party, without the other party’s prior written consent.
- 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 the 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.
Furthermore, it is understood that each party shall be free to use any ideas, concepts, know-how and techniques related to the scope of its practice, provided they contain no specific identifiable elements unique to the other party hereto or its operations.
(d) 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 20 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 available at law or in equity.
- Governing Law. This Agreement shall be exclusively governed by, and construed in accordance with, the laws of Canada and the Province of British Columbia (without reference to conflicts of laws principles).
(a) Each notice sent pursuant to this Agreement (“Notice”) shall be in writing and shall be sent to the relevant party at the relevant address or e-mail address shown on first or cover page of this Agreement. Each such notice may be sent by mail, by commercial courier, by facsimile transmission or by electronic mail.
(b) Each Notice sent by electronic mail (“E-Mail Notice”) must show the e-mail address of the sender, the name of the recipient or the e-mail address of the recipient, and the date of transmission and must be followed within twenty-four (24) hours by a true copy of such notice, including all addressing and transmission details, sent by commercial courier or by facsimile transmission.
(c) The Vendor and the Customer each irrevocably consent to sending and receiving E-Mail Notice in accordance with the terms of this Section 22, as well as irrevocably consent to each party retaining and using each such E-Mail Notice in both electronic and printed form, for any and all purposes associated with this Agreement including, without limitation, for the purpose of any and all mediation, arbitration, litigation and other proceedings arising out of or, related to, or in any way connected to this Agreement. Each E-Mail Notice sent electronically by the Vendor or by the Customer shall be fully accessible by the recipient, as well as capable of being printed, retained and electronically stored by the recipient for subsequent use and reference.
(d) Each Notice shall be conclusively deemed to have been given or made at the following times:
(i) if personally delivered, on the day the Notice is personally delivered to recipient;
(ii) if sent by registered mail, seventy-two (72) hours following the date of such mailing by sender;
(iii) if sent by facsimile transmission, on the date the Notice is sent by facsimile transmission by sender to recipient’s facsimile number shown on first or cover page of this Agreement; or
(iv) if sent by electronic mail, on the date the E-Mail Notice is sent electronically by e-mail by the sender to the recipient’s e-mail address stated on first or cover page of this Agreement.
(e) Notice given by facsimile transmission in accordance with the terms of this Section will be deemed to be received by the recipient upon the sender’s facsimile machine generating any form of written confirmation indicating that the facsimile transmission was sent. E-Mail Notice given in accordance with the above noted provisions will be deemed to be received by the recipient upon the date that the E-Mail Notice was transmitted electronically by the sender to the recipient’s E-mail address stated above.
(f) Either party shall provide Notice to the other party of any change of address, facsimile number or e-mail address of such party within 24 hours of the change.
- General Terms and Conditions.
(a) Headings. The Section headings used within the Agreement are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of the Agreement.
(b) No Authority. The Vendor and the Customer shall be and remain independent contractors at all times. Neither party will represent to any party or parties that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor represents the other party as partner, co-venturer, agent, employee, franchisee, or in any other capacity. Neither party will create any obligation or liability on the part of the other, howsoever arising. No provision within this Agreement constitutes or shall constitute a joint venture or partnership of any kind. The Customer and its Web Site do not have any endorsement from, or affiliation with, the Vendor.
(c) Time. Time shall be of the essence in this Agreement and in every provision hereof.
(d) Assignment. The Customer may not assign, transfer, convey or delegate this Agreement or any of the Customer’s licences, rights and/or obligations under this Agreement, without the Vendor’s prior written consent. The Vendor may assign, convey or otherwise transfer this Agreement and/or any of its rights and benefits hereunder to any party upon the provision of thirty (30) calendar days’ prior written notice to the Customer.
(e) Amendment. This Agreement may not be modified or amended in any manner except by way of a written amendment signed by a duly authorized representative of the Customer and the Vendor.
(f) Severability. In the event any provision of this Agreement is held to be unlawful, invalid and/or unenforceable, such provision shall be considered severed from this Agreement but all remaining provisions of this Agreement will remain in full force and effect.
(g) Waiver. Each waiver of any breach or default under this Agreement shall not be effective unless contained in a written document signed by the party negatively affected by such waiver, nor shall any such waiver constitute a waiver of any other or subsequent breach or default.
(h) Agreement. The Customer agrees to keep all provisions of this Agreement confidential and not to disclose any of same (including any of the Vendor’s pricing) to any third party or parties without the Vendor’s prior written consent.
(i) Successors. This Agreement shall enure to the benefit of and be binding upon the Customer and the Vendor and their successors and permitted assigns.
(j) Purchase. Each purchase order issued by the Customer to purchase Services from the Vendor pursuant to this Agreement shall be deemed issued for administrative purposes only and shall not add to or amend any provision of this Agreement.
(k) Counterpart and Facsimile Signatures. This Agreement may be executed by the parties in separate counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute one and the same agreement. This Agreement will be considered fully executed when all parties have executed an identical counterpart, notwithstanding that all signatures may not appear on the same counterpart. This Agreement and those contemplated herein may be executed and delivered by facsimile or other electronic transmission signatures and shall be binding on all parties hereto as if executed by original signature and delivered personally.
(l) No Construction against Drafter. If an ambiguity or question of intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship of any of the provisions of this Agreement.
Acceptable Use Policy
The Vendor will not knowingly disseminate any information or permit the Customer to place information with the Vendor that the Vendor, in its sole discretion, believes may be in violation of any provincial, federal or municipal law, rule or regulation. Notwithstanding this paragraph, the Vendor does not warrant the legality of any information disseminated and the Customer remains solely responsible for information content, legality and accuracy. The Customer acknowledges that the Vendor does not censor, limit or control the information that comes in and/ or out of its system, except in accordance with the provisions of applicable laws. The Vendor relies on complaints from other users on the system, on other hosts on the Internet and on such other information as may come to its attention. The Vendor will take action against any subscriber who abuses any Vendor facilities or services.
The Customer may not use the Vendor’s network or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including, without limitation:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; messages broadcast or communicated which are threatening, offensive or pornographic, and as such are in violation of any local, provincial or federal law; and, additionally, messages which, through their frequency of transmission constitute harassment.
- Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network; Interference with service to any user of the Vendor’s or other networks including, without limitation, mail bombing, flooding or deliberate attempts to overload a system and broadcast attacks;
- Use of an Internet account or computer without the owner’s authorization; Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering and harvesting); Collecting or using information without the consent of the owner of the information;
- Use of any false, misleading or deceptive TCP-IP packet header information in an email or a newsgroup posting;
- Use of the Services to distribute software that covertly gathers information about a user or covertly transmits information about the user;
- Use of the Services for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “add/remove” tool); or
- Any conduct that is likely to result in retaliation against the Vendor’s network or website, or employees, officers or other agents of the Vendor including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
The Customer shall not attempt to probe, scan, penetrate or test the vulnerability of a Vendor system, network or to breach Vendor’s security or authentication measures, whether by passive or intrusive techniques, without the Vendor’s express prior written consent.
Newsgroup, Chat Forums, Other Networks
The Customer must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which the Customer participates, such as IRC and USENET groups, including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages or mass postings to multiple forums.
The Customer must comply with the rules of any other network the Customer accesses or participates in using, in connection with its Services.
The Customer must not publish or transmit via the Vendor’s network and equipment any content or links to any content that the Vendor reasonably believes:
- constitutes, fosters or promotes child pornography, bestiality or hard-core pornography; is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person’s privacy;
- creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with an investigation by law enforcement;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating technical copyright protections; infringes on another person’s copyright, trade or service mark, patent or other property right;
- promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to the Customer or to the Vendor; or
- is otherwise malicious, fraudulent, or may result in retaliation against the Vendor by offended viewers.
- Content “published or transmitted” via the Vendor’s network or equipment includes Web content, email, bulletin board postings, chat and any other type of posting or transmission that relies on the Internet.
The Customer must not use the Vendor’s network or equipment to download, publish, distribute or otherwise copy in any manner any text, music, software, art, image or other work protected by copyright law unless:
- the Customer has been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
- the Customer is otherwise permitted by established Canadian and United States copyright law to copy the work in that manner.
The Customer must have valid and current information on file with its domain name registrar for any domain hosted on the Vendor’s network.
All scripts and web applications installed on the Services must be kept in a secure and stable state at all times. This includes any updates released to address bugs, performance or security by the authors of said scripts or web applications. The Customer shall be responsible for any direct or indirect impact to its or others’ Services if the Customer is in violation.
Storage space provided under the Services shall not be used for off-site backups of personal or business computers, and/or the storage, caching or backups of other data not directly related to the Web Site(s) using the Services.