2.1 The Schedules appended to and forming part of this Agreement are described in subsection 2.2 hereof. In the event of any inconsistency or conflict between the terms and conditions of this Agreement and any Schedule, the provisions of the Schedule shall prevail.
3.2 The Parties agree that the appointment of the Infrastructure Host to provide access to the Infrastructure Technology Environment and to provide the associated Hosting Services shall be in accordance with all terms and conditions of this Agreement including, without limitation, the compensation payable to the Infrastructure Host described in Article 4.0.
4.2 The Client shall be responsible for payment of the HST and any other sales and other taxes imposed or levied in respect of the charges payable to the Infrastructure Host, other than any tax on the income of the Infrastructure Host.
4.3 The Client agrees that should they exceed allocated disk space or bandwidth, they shall pay Infrastructure Host the respective “overage” charges, which have been communicated, and/or made available to the Client or will be provided to the Client after the Effective Date, as may be updated from time to time. Infrastructure Host reserves the right to deny additional disk space, or bandwidth usage which it deems to be unreasonable and the Client is aware that corrective action may be taken as a result, which may include discontinuance of any/all Hosting Services, or termination of any/all Hosting Services. The Client is aware that any corrective action taken as a result of the Client exceeding their allocated resources shall not entitle the Client to a refund of any fees paid in advance prior to such corrective action.
4.4 Infrastructure Host, without any further actions or requirements on its part and until all outstanding payments have been made in full, reserves the right to deny or suspend Hosting Services or any other related activity under this Agreement, or terminate accounts upon the failure of the Client to pay charges when due. Termination or denial as a result of failure to pay will not relieve the Client from the payment of all accrued charges for Hosting Services provided, plus interest and all collection fees. Should the Client fail to make satisfactory arrangements for payment with Infrastructure Host or its authorized agents within sixty (60) calendar days of default, the satisfaction of such arrangements to be determined at Infrastructure Host’s sole and absolute discretion, Infrastructure Host will terminate all Hosting Services to the Client and eliminate all power sources to the Client’s equipment on the 61st calendar day of default, and in so doing, the Client’s equipment will effectively become “stored” upon Infrastructure Host’s premises as of that date, and the Client will be charged and agrees to pay a daily fee of $30.00 in lawful Canadian dollars for the storage of such equipment, in addition to any amount outstanding for Hosting Services fees or charges in arrears. Infrastructure Host will have no obligation whatsoever to the Client for any loss or damage which occurs with respect to the Client’s equipment while stored upon Infrastructure Host’s premises; the equipment being subject to lien and Infrastructure Host being the storer of such equipment. Infrastructure Host reserves the right at any time after the initial 60 calendar day default period, and in accordance with the provisions of the repair and storage liens act. R.s.o. 1990, to liquidate Client equipment, in whole or in part, in order to recover all outstanding accrued charges for storage, plus reasonable interest and all collection fees. Notwithstanding any amount recovered by Infrastructure Host for storage fees obtained through the liquidation of the Client’s equipment, the Client will continue to be responsible for any outstanding amount owed for Hosting Services and resources provided by Infrastructure Host to the Client.
6.1 The minimum term that the Client acquires the Hosting Services for is outlined in the Infrastructure Host’s Proposal/Service Agreement to the Client, beginning from the first of the next month after the date of signing or approving the Quote/Service Agreement.
6.4 Upon termination of this Agreement, the Infrastructure Host shall, forthwith but always subject to any outstanding payments due from the Client, return all Client Data in its possession or under its control to the Client, or delete the same from the Infrastructure Technology Environment at the written request of the Client, and provide the transitional assistance services described in Article 22.0. The Infrastructure Host retains the exclusive right to retain the Client Data and not release or destroy it, until and unless it has been fully paid for the Hosting Services and any other matters related thereto as per the terms of this Agreement. The Client shall, forthwith, return all Infrastructure Host Data in its possession or under its control to the Infrastructure, or destroy the same at the written request of the Infrastructure Host. A duly authorized official of the Infrastructure Host and the Client shall certify, in writing, the return to the other Party, or destruction as requested, of all Client Data and Infrastructure Host Data, respectively.
9.1 For the purpose of this agreement, infrastructure support involves providing assistance and resources that specifically maintain and manage the foundational components of IT systems, such as hardware, networks, and data centers, without directly dealing with software applications or end-user support.
Examples:
1. Server Maintenance: Ensuring servers are operational, updated, and secure to support applications and data storage.
2. Network Management: Configuring routers, switches, and firewalls to maintain a stable and secure network for data transmission.
3. Data Center Operations: Managing cooling systems, power supply, and physical security of data centers that house servers and IT equipment.
4. Backup and Recovery: Setting up and monitoring systems for data backup and recovery to prevent data loss in case of emergencies.
In summary, IT infrastructure-only support focuses on maintaining the backbone of IT systems that support software applications and enable communication and data storage within an organization.
9.2 Infrastructure Support: Further to 9.1, Infrastructure Host shall provide comprehensive infrastructure support to the Client, which includes but is not limited to the following:
9.3 Non-Infrastructure Work: Non-infrastructure work is not included in the scope of services provided under this Agreement. Should the Client require non-infrastructure work, these services will be billed separately at the rates specified in the Estimate attached to this Agreement or as mutually agreed upon in writing by both parties. Non-infrastructure work includes but is not limited to:
10.1 Either Party may initiate a change ticket as per the Infrastructure Host’s ticketing system to implement any of the following changes or other related matters under this Agreement:
(a) Additions to, deletions from, or other modifications to the description of Hosting Services in Schedule A; and
(b) Modifications, alterations, adjustments, additions to, upgrades, conversions, attachments, enhancements, or other changes to the Infrastructure Technology Environment that will not, or is likely to not have, a material impact on Client access to the Infrastructure Technology Environment or the delivery of Hosting Services;
10.2 Changes to this Agreement, other than those set out in subsection 9.1, shall be undertaken only by means of a written amendment to this Agreement.
11.1 The Infrastructure Host shall not be liable for any loss, corruption to, or deletion of Client Data, even if any of the same arose from the Infrastructure Technology Environment, or from the fault or negligence of the Infrastructure, its employees, agents or subcontractors. The Client shall be responsible for backing up all Client Data in the event of any such loss, corruption to, or deletion of the same.
12.1 The Parties acknowledge that under this Agreement the Infrastructure Host may have access to Client personal information for the performance of Hosting Services. The Parties further acknowledge and agree that Client personal information is highly confidential and must be protected from unauthorized access to, use or disclosure by the Infrastructure Host in compliance with all applicable laws including the Personal Information Protection and Electronic Documents Act, R.S.C. 2000, c. 5.
13.1 The performance of the Infrastructure Technology Environment and Hosting Services shall not include any failure or interruption arising from enhancements, modifications or other changes to the Infrastructure Technology Environment, additions to, enhancements, upgrades or other changes to Client Hardware or Client Software, or as a consequence of force majeure.
14.1 Legal Status and Authority. The Infrastructure Host makes the following legal status and authority representations and warranties to the Client acknowledging that the Client is relying on each such representation and warranty in connection with the appointment of the Infrastructure Host to provide remote, on-line access over the internet to the Infrastructure Technology Environment and perform the associated Hosting Services, and with the further acknowledgment that the Client would not have entered into this Agreement without any of the legal status and authority representations and warranties of the Infrastructure Host.
14.1.1 Due Incorporation and Subsistence. The Infrastructure Host represents and warrants to the Client that it is a corporation, duly incorporated and organized and validly subsisting under the laws of Ontario and has the corporate power to enter into this Agreement and to perform its obligations hereunder.
14.1.2 Not Bankrupt or Insolvent. The Infrastructure Host represents and warrants to the Client that it is not bankrupt, insolvent or subject to any legal form of reorganization, moratorium, preference or other law or regulation relating to or affecting the enforceability of creditors’ rights generally.
14.1.3 Authorization. The Infrastructure Host represents and warrants to the Client that this Agreement has been duly authorized, executed and delivered by the Infrastructure Host, and is a legal, valid and binding obligation of the Infrastructure Host, enforceable against the Infrastructure Host by the Client in accordance with its terms except only as such enforcement may be restricted or limited by any applicable laws in regard to bankruptcy, insolvency or the enforcement of creditors’ rights generally.
14.1.4 Conflicting Agreements. The Infrastructure Host represents and warrants to the Client that there is no agreement with any other party that conflicts with its obligation to provide remote, on-line access over the internet to the Infrastructure Technology Environment and perform the associated Hosting Services under this Agreement.
14.1.5 Compliance with Laws. The Infrastructure Host represents and warrants to the Client that it shall comply with all applicable laws, statutes, ordinances, by-laws and regulations of all applicable governmental authorities.
14.2 Infrastructure Technology Environment and Hosting Services. The Infrastructure Host makes the following representations and warranties concerning the Infrastructure Technology Environment and Hosting Services to the Client acknowledging that the Client is relying on each such representation and warranty in connection with the appointment of the Infrastructure Host to provide remote, on-line access over the internet to the Infrastructure Technology Environment and perform the associated Hosting Services, and with the further acknowledgment that the Client would not have entered into this Agreement without any of the Infrastructure Technology Environment and Hosting Services representations and warranties of the Infrastructure Host.
14.2.1 Title. The Infrastructure Host represents and warrants to the Client that all right title and other rights of ownership in the Infrastructure Technology Environment resides solely and exclusively with the Infrastructure Host, and that it possesses all necessary authority and right to grant the prescribed rights to access the Infrastructure Technology Environment.
14.2.2 Performance Standards. The Infrastructure Host represents and warrants to the Client that it shall provide remote, on-line access over the internet to the Infrastructure Technology Environment and perform the associated Hosting Services and all other obligations under this Agreement, honestly, in good faith, exercising reasonable skill, care and diligence and using personnel having a level of competence commensurate with the requirements in accordance with the terms and conditions of this Agreement. The Infrastructure Host does not represent or warrant that access to the Infrastructure Technology Environment or performance of the Hosting Services will be uninterrupted or error free, or free from harmful components, or that Client Data or Client Software will be secure and not lost or damaged. The Infrastructure Host shall not be responsible for any service interruption including power outages, system failures, failures attributable to any third party applications or other unplanned interruptions.
14.3 Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 13.0, ALL REPRESENTATIONS AND WARRANTIES OF THE INFRASTRUCTURE HOST, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXCLUDED.
15.1 General. The Client makes the following representations and warranties to the Infrastructure Host acknowledging that the Infrastructure Host is relying on each such representation and warranty in connection with the appointment of the Infrastructure Host to provide remote, on-line access over the internet to the Infrastructure Technology Environment and perform the associated Hosting Services, and with the further acknowledgment that the Infrastructure Host would not have entered into this Agreement without any of the representations and warranties of the Client.
15.1.1 Due Incorporation and Subsistence. The Client represents and warrants to the Infrastructure Host that it is a corporation, duly incorporated and organized and validly subsisting under the laws of Ontario and has the corporate power to enter into this Agreement and to perform its obligations hereunder.
15.1.2 Not Bankrupt or Insolvent. The Client represents and warrants to the Infrastructure Host that it is not bankrupt, insolvent or subject to any legal form of reorganization, moratorium, preference or other law or regulation relating to or affecting the enforceability of creditors’ rights generally.
15.1.3 Authorization. The Client represents and warrants to the Infrastructure Host that this Agreement has been duly authorized, executed and delivered by the Client and is a legal, valid and binding obligation of the Client, enforceable against the Client by the Infrastructure Host in accordance with its terms except only as such enforcement may be restricted or limited by any applicable laws in regard to bankruptcy, insolvency or the enforcement of creditors’ rights generally.
15.1.4 Conflicting Agreements. The Client represents and warrants to the Infrastructure Host that there is no agreement with any other party that conflicts with its obligations under this Agreement.
15.1.5 Compliance with Laws. The Client represents and warrants to the Infrastructure Host that it shall comply with all applicable laws, statutes, ordinances, by-laws and regulations of all applicable governmental authorities.
15.2 Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 14.0, ALL REPRESENTATIONS AND WARRANTIES OF THE CLIENT, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXCLUDED
16.1 The Parties acknowledge that cooperation is essential to the successful implementation of this Agreement and agree to use mutually agreed processes and forms to report progress and to identify, track and resolve problems. Unless otherwise provided for in this Agreement, the processes and forms (including any change tickets to be issued to the existing scope of work or services) of the Infrastructure Host will be utilized.
17.1 The Parties anticipate that over the term of this Agreement, the Client may wish to add to, upgrade, enhance or otherwise modify Client Hardware, Client Software, or other aspects of the Client technology environment, and the Infrastructure Host may wish to add to, upgrade, enhance or otherwise modify the Infrastructure Technology Environment. In each such instance, the Client or Infrastructure Host, as applicable, shall submit the desired change to the ticketing system of the Infrastructure Host to determine any consequential impact on the performance of the Infrastructure Technology Environment and Hosting Services.
18.1 All right, title and other proprietary interest in and to Client Data resides solely and exclusively with the Client. Further, all right, title and other proprietary interest in and to all other data, information and programming code input, designed or developed by the Client, including all work-in-process, resides solely and exclusively with the Client.
18.2 The Infrastructure Host acknowledges that Client Data is confidential and must be protected from unauthorized use or disclosure.
18.3 The restrictions on access to or disclosure otherwise of Client Data shall not apply to any duty or obligation of the Infrastructure Host to provide access to or disclose the same to lawful authority, or for access to or disclosure of Client Data with the written consent of the Client.
19.1 All right, title and other proprietary interest in and to Infrastructure Host Data resides solely and exclusively with the Infrastructure Host. Further, all right, title and other proprietary interest in and to all other data, information and other products designed or developed by the Infrastructure Host in the performance of Hosting Services or otherwise, including all work-in-process, resides solely and exclusively with the Infrastructure Host.
20.1 All right, title, and interest (including all rights of copyright) to all ideas, concepts, know-how, data-processing techniques, software, documentation, diagrams, or schematics, existing or developed by the Client in accessing the Infrastructure Technology Environment or in its receipt of Hosting Services, resides exclusively with the Client.
20.2 All right, title, and interest (including all rights of copyright) to all ideas, concepts, know-how, data-processing techniques, software, documentation, diagrams, or schematics, existing or developed by the Infrastructure Host in providing access to the Infrastructure Technology Environment or performing Hosting Services, resides exclusively with the Infrastructure Host.
21.1 The liability of the Infrastructure Host to the Client for any breach of this Agreement, regardless of the basis of the claim, including, without limitation, any claim in tort or of fundamental breach of contract, shall be direct damages only in an amount not to exceed the amount in equivalent charges payable by the Client for Hosting Services under this Agreement. The Infrastructure Host shall not be liable for any indirect, incidental, special, or consequential damages, or damages for lost profits or revenue of the Client in regard to the provision of access to the Infrastructure Technology Environment, the performance of Hosting Services, or for any other breach of this Agreement, even if it has been informed of the possibility thereof.
21.2 MOREOVER, IN NO EVENT SHALL INFRASTRUCTURE HOST BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTY WHATSOEVER FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, AGGRAVATED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (INCLUDING ANY LOSS OR DAMAGE CAUSED DUE TO HACKING), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT INFRASTRUCTURE HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
21.3 INFRASTRUCTURE HOST, AS THE PLATFORM HOST, SHALL NOT BE LIABLE FOR ANY LOSS, CORRUPTION TO, OR DELETION OF CLIENT APPLICATIONS OR CLIENT DATA, EVEN IF ANY OF THE SAME AROSE FROM THE PLATFORM TECHNOLOGY ENVIRONMENT, OR FROM THE FAULT OR NEGLIGENCE OF THE PLATFORM HOST, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS. THE CLIENT SHALL BE RESPONSIBLE FOR BACKING UP ALL CLIENT APPLICATIONS AND CLIENT DATA IN THE EVENT OF ANY SUCH LOSS, CORRUPTION TO, OR DELETION OF THE SAME.
21.4 The Client acknowledges that they are solely responsible for the content stored on, or transferred through Infrastructure Host’s services and/or resources. All data stored and/or generated in the Client’s environment is the sole property of the Client. All Client data is protected using best practices with the following: virus software/anti-malware, Group Policy, UAC, Firewall, and NIPS, Dual off-site backups. The Client acknowledges and agrees that the foregoing best practices are adequate and reasonable practices adopted by Infrastructure Host to protect Client’s data or information.
22.1 In the event that either Party commits a breach of one or more of its material duties or obligations under this Agreement (“Material Breach”), which Material Breach shall not have been cured within thirty (30) Business Days from notice in writing advising of said Material Breach (“Cure Period”), the Party not in breach may terminate this Agreement, forthwith, for cause, by giving written notice to the Party in Material Breach.
22.2 Without limiting the generality of the foregoing, each of the following specific events shall be deemed to be a Material Breach by the Infrastructure Host granting the Client the right to terminate this Agreement pursuant to subsection 21.1:
(a) The Infrastructure Host is adjudged bankrupt, commits or threatens to commit an act of bankruptcy, makes a general assignment for the benefit of its creditors, becomes insolvent, or otherwise commences action for its winding up, reorganization, liquidation, or dissolution under any applicable law;
(b) The Infrastructure Host is in breach of the ownership rights of the Client in Client Data; and
22.3 Without limiting the generality of the foregoing, each of the following specific events shall be deemed to be a Material Breach by the Client granting the Infrastructure Host the right to terminate this Agreement pursuant to subsection 21.1:
(a) The Client is adjudged bankrupt, commits or threatens to commit an act of bankruptcy, makes a general assignment for the benefit of its creditors, becomes insolvent, or otherwise commences action for its winding up, reorganization, liquidation, or dissolution under any applicable law;
(b) The Client is in breach of the ownership rights of the Infrastructure Host in Infrastructure Host Data; and
(c) The Client fails, without valid cause, to pay any amount owing to the Infrastructure Host within ten (10) Business Days following written notice by the Infrastructure Host to the Client that such amount is overdue.
22.4 Upon termination of this Agreement for Material Breach all responsibilities and liabilities of the Parties to each other shall cease on the date of termination, except only for damages that may be assessed against the Party in Material Breach, the obligation of the Infrastructure Host to provide the transitional assistance services described in Article 22.0, the obligation of the Infrastructure Host to return or destroy all Client Data in its possession or under its control, and the obligation of the Client to return or destroy all Infrastructure Host Data in its possession or under its control.
23.1 General. In the event of the termination or expiration of this Agreement for any reason whatsoever, the Parties acknowledge the need for an orderly cessation of the Client’s access to the Infrastructure Technology Environment and the transfer of Hosting Services to the Client or to another cloud computing provider. In such event, the Client by a notice in writing may require the Infrastructure Host to perform the pre-termination and post-termination transitional assistance services described below.
23.2 Pre-termination Transitional Assistance Services. For a period of up to 30 days prior to the termination or expiration of this Agreement, for any reason whatsoever, the Infrastructure Host shall, at its sole and absolute discretion, provide pre-termination transitional assistance services including, but not limited to:
(a) Disclosing and reviewing the provision of access to and performance of the Infrastructure Technology Environment and performance of the Hosting Services with the Client or new cloud computing service provider, as applicable;
(b) Providing procedural orientation to the operations personnel of the Client or new cloud computing service provider, as applicable;
(c) Preparing, in consultation with the Client and new cloud computing service provider, if applicable, a transition plan describing the respective tasks to be performed for the orderly and timely transition of the Hosting Services to the Client or to a new cloud computing service provider; and
(d) Assisting the Client or new cloud computing service provider in engaging any subcontractor or other third party services utilized by the Infrastructure Host to perform Hosting Services.
23.3 Post-termination Transitional Assistance Services. For a period of up to thirty (30) calendar days after the termination or expiration of this Agreement, for any reason whatsoever, the Infrastructure Host shall provide post-termination transitional assistance services to the Client or new cloud computing service provider, as requested by the Client, to facilitate the orderly and timely transition of the Hosting Services. The Infrastructure Host shall provide post-termination transitional assistance services at its then standard rates and also subject to the scope of work required to complete the full transition based on Client’s requirements.
24.1 Infrastructure Host Indemnification.
(a) The Infrastructure Host shall indemnify, defend, and hold harmless the Client, including its employees, agents, successors, and assigns, from any and all losses arising from or in connection with any claims of infringement made against the Client for any patent, copyright, trade-mark, service mark, trade name, or other proprietary rights in regard to Infrastructure Host Data, Infrastructure Technology Environment, or any other information or data provided or used by the Infrastructure Host in providing the Client with access to the Infrastructure Technology Environment and performing Hosting Services.
(b) The Infrastructure Host shall further indemnify, defend, and hold harmless the Client, including its employees, agents, successors, and assigns, from any and all losses arising from or in connection with any other claims against the Client for acts or omissions of the Infrastructure Host in providing the Client with access to the Infrastructure Technology Environment, delivering Hosting Services or performing any other obligation of the Infrastructure Host under this Agreement.
(a) The Client shall indemnify, defend, and hold harmless the Infrastructure Host, including its employees, agents, subcontractors, successors, and assigns from any and all losses arising from or in connection with any claims of infringement made against the Infrastructure Host for any patent, copyright, trade mark, service mark, trade name, or similar proprietary rights in regard to Client Data, Client Hardware, Client Software , or any other information or data supplied by or used by the Client under this Agreement.
(b) The Client shall further indemnify, defend, and hold harmless the Infrastructure Host, including its employees, agents, subcontractors, successors, and assigns from any and all losses for any other claims against the Infrastructure Host arising out of any acts or omissions of the Client in the performance of its obligations under this Agreement.
24.3 Exclusive Remedy. The indemnities described in this section 23.0 are the exclusive indemnities provided by each Party to the other Party under this Agreement. The indemnities shall not apply unless the Party against whom the claims are made provides the indemnifying Party with prompt written notice of such claim, grants the indemnifying Party authority to defend or settle the claim, and provides all reasonable assistance to the indemnifying Party in defending or settling the claim.
25.1 The Parties shall utilize all reasonable efforts to resolve any dispute in regard to the provision of access to the Infrastructure Technology Environment, the performance of Hosting Services, or any other matter arising out of or connected with this Agreement (hereinafter “Dispute”), promptly and in a good faith manner by negotiation. If they are unable to resolve the Dispute within twenty (20) Business Days from when the Dispute first arose, either Party may by notice in writing to the other Party submit the matter to mediation. Immediately upon delivery of such notice, the Parties will make a reasonable, good faith effort to identify a mutually acceptable mediator. If the Parties cannot agree upon a mediator within a period of ten (10) Business Days or, having selected and met with the mediator cannot resolve the Dispute within five (5) Business Days thereafter, either Party may by notice in writing to the other Party direct the matter to arbitration pursuant to subsection 24.2.
25.2 The arbitration shall be undertaken before a panel of three (3) arbitrators. Each Party shall select one (1) arbitrator within five (5) Business Days and the arbitrators so chosen will select the third arbitrator within a further period of ten (10) Business Days. The third arbitrator will chair the arbitration panel. Upon the appointment of the third arbitrator, each Party shall, forthwith, submit its argument in writing, and make oral argument should the arbitration panel so require. The arbitration panel shall make its decision and so inform the Parties in writing within sixty (60) days from the completion of argument. In so doing, the arbitration panel shall be restricted to construing the terms of this Agreement. The arbitration award cannot under any circumstances exceed the remedies available under this Agreement. Each Party will bear its own costs of the arbitration and share equally the costs of the arbitration panel, unless the arbitration panel in its discretion, and pursuant to representations by the Parties, awards some or all of the costs of the arbitration to one of the Parties. The decision of the arbitration panel shall be by majority vote and final and binding on both Parties. Any award by the arbitration panel may be filed in court and enforced as a judgment of the court. All documents created in the course of or for the purposes of the mediation and arbitration, including the arbitration award, shall be kept completely confidential and shall not be disclosed by the Parties to any other party (excluding their respective legal counsel and advisors) without the prior written consent of the other Party. The mediation and arbitration proceedings shall be undertaken in a location determined by the mediator or the arbitration panel, as applicable. The arbitration shall be governed by the arbitration rules and procedures of the then current Arbitration Act of the province of Ontario.
25.3 Notwithstanding subsections 24.1 and 24.2, neither Party is precluded from seeking from a court of competent jurisdiction interim relief, including injunctive relief.
26.1 Notices. All notices, requests, demands, claims and other communications under this Agreement shall be in writing and duly given if personally delivered, sent by prepaid registered mail, facsimile, electronic mail or other form of recorded communication tested prior to transmission, addressed to the other Party as follows:
Client Address: ,
Infrastructure Host Address:
Notice shall be deemed to have been received: (i) if personally delivered, as of the day it is delivered to the recipient; (ii) if mailed by prepaid registered mail, on the third (3rd) Business Day following the date of mailing; and (iii) if by electronic mail, the first (1st) Business Day the electronic mail arrives in the recipient’s electronic mail in-box, provided only that the Party sending the message has not received any automatic reply indicating that the notice has not been delivered to the recipient.
26.2 Force Majeure. Neither Party will be responsible or liable in any way for failure or delay in performing its obligations under this Agreement during any period in which such performance is prevented or hindered by conditions beyond its reasonable control such as an act of war, terrorism, pandemic, internet disruption or government action (“force majeure”). During such period each Party’s obligations, to the extent that they are affected by the event of force majeure, will be suspended and commensurately extended until such time as performance is no longer prevented or hindered; provided that if such period extends for more than forty (40) Business Days, either Party may thereafter terminate this Agreement without any obligation or liability to the other Party except only for provision by the Platform Host of the transitional assistance services described under this Agreement.
26.3 Announcements. The Parties shall consult with each other before issuing any press release or making any other public announcement with respect to this Agreement or the transactions contemplated hereby and, except as required by any applicable law or regulatory requirement, neither Party shall issue any such press release or make any such public announcement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
26.4 Offensive Materials. Infrastructure Host reserves the right to remove any and all materials belonging to the Client, which are deemed offensive by Infrastructure Host. The Client is aware that Infrastructure Host may delete, disconnect, or terminate any services, resources, or accounts on which the offensive materials are located, or connected to. The Client is aware that should Infrastructure Host choose to take any action relating to materials or content which Infrastructure Host deems as offensive shall not entitle the Client to a refund of any form or to any other claim or complaint whatsoever in such regard.
26.5 IP Address Ownership. All Internet Protocol (“IP”) addresses which are assigned to the Client belongs exclusively only to Infrastructure Host. Client shall have no right to use IP addresses except as permitted and assigned by Infrastructure Host in its sole discretion. Infrastructure Host shall maintain control and ownership of all IP addresses which it assigns, and reserves the right to modify, or remove any and all IP addresses it assigns.
26.6 Spam. The Client acknowledges that Infrastructure Host defines “spam” e-mail as any and all bulk e-mail and unsolicited commercial e-mail, messages, or postings, etc. The Client understands that they may not transmit, assist in the transmission, and encourage third parties to transmit, or permit hosting of sites or any information which is advertised by spam from other networks or services. The Client acknowledges that they are solely responsible for any and all spam related actions which come from their account.
26.7 Emergency Maintenance. Infrastructure Host will, on a best efforts basis, announce any scheduled maintenance at least twenty (24) hours ahead of time to the Client. Infrastructure Host reserves the right to perform emergency maintenance without any prior notification, should it be deemed necessary to protect and maintain the security and integrity of the Hosting Services or where it may not be practical or reasonable for Infrastructure Host to furnish such advance notice period.