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Terms & Conditions
GENERAL TERMS & CONDITIONS
1. DEFINITIONS AND INTERPRETATION
In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by Plextec Inc. the following words have the following meanings:
“After Hours” means from 5:00PM – 9:00AM Monday to Friday and all day Saturday and Sunday, including Public Holidays, in Client’s local time zone
“Business Hours” means Monday to Friday from 9:00AM – 5:00PM, excluding Public Holidays, in Client’s local time zone
“Client”, “You” or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed, and in any case each of their heirs, successors and assigns;
“Conditions” means these terms and conditions;
“Goods” means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;
“HST” has the meaning given to it under the Excise Tax Act
“Order” means any order requested by You to Us for Goods or Services in any form;
“Quote” means a quote provided to You by Us;
“Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;
“Plan” means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule;
“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in its absolute discretion without notice to You;
“Public Holidays” means any day which is a public holiday throughout Ontario, Canada other than a bank holiday
“Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work it has done;
“Rate Schedule” means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;
“Reasonable Assistance Limits” has the meaning set out in clause 17.2;
“Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by Us from time to time;
“Service request” means a request for service such as adds, moves, changes and technical assistance;
“Services” means the provision of any services by Us including Work, advice and recommendations;
“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;
“Us”, “Our” or “We” means Plextec Inc. and its heirs, successors and assigns; and
“Work” means anything We may do, provide, customize, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.
In these Conditions, the Rate Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
Words denoting the singular number only shall include the plural number and vice versa;
Reference to any gender shall include every other gender;
Reference to any Act of Parliament, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution therefore;
Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
All references to dollars ($) are Canadian Dollars
A reference to time is, unless otherwise specified, to Eastern Time
A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;
A recital, schedule, annexure or description of the parties forms part of these Conditions;
A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
A reference to “includes” means includes without limitation;
A reference to “will” imports a condition not a warranty; and
A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.
2. APPLICATIONS OF THESE CONDITIONS
Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Proposal, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.
The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.
3. COMMITMENT TERM
3.1 The minimum term that You acquire the service for is outlined in Our Proposal/Service Agreement to You, beginning from the first of the next month after the date of signing or approving the Quote/Service Agreement.
3.2 If You did not sign a Proposal/Service Agreement that specified a Committed Term, the default Term is month-to-month
3.3 After the expiry of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by you as specified in Clause 4.
4. TERMINATION
4.1 If You signed a Service Agreement that specified a Committed Term, this Agreement may be terminated by You upon ninety (90) days written notice if We:
4.1.1 Fail to fulfil in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.
4.1.2 Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.
4.1.3 Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement.
4.2 This Agreement may be terminated by Us upon ninety (90) days written notice to you.
4.3 If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.
4.4 Should You wish to terminate this Agreement before the end of the commitment term, You agree to pay Us the difference between our month-to-month contract rates at the time of signing this contract and the discounted contract rates you received, times the number of months of service received at the time of cancellation. In addition, you agree to pay Us a 3-month termination fee based on a multiple of three (3) times the average of your three (3) most recently invoiced sums. This payment will be made within 14 days of providing Us Notification of Termination.
4.5 If You did not sign a Proposal/Service Agreement that specified a Committed Term, the service may be terminated by You upon thirty (30) days written notice and there is no applicable termination fee.
5. REPRESENTATIONS
5.1 You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.
6. NOTICES
6.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Yours.
7. GOVERNING LAW
7.1 The Conditions shall be governed by and construed in accordance with the laws of Ontario and the parties submit to the non-exclusive jurisdiction of the Courts of Ontario.
8. ASSIGNMENT
8.1 You may not assign Your rights and obligations under this Agreement without the prior written consent of Us.
9. VARIATION OF THESE TERMS AND CONDITIONS
9.1 We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, We have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these terms and conditions.
GOODS AND SERVICES
10. QUOTES
10.1 Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.
10.2 Quote is valid for 7 days only. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.
10.3 Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.
10.4 The price in the final quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the quote, as long as the quote has not been confirmed with You.
10.5 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.
10.6 Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.
10.7 The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.
10.8 When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.
10.9 In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of Our control, We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.
10.10 Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.
10.11 Once a Quote has already passed the expired date, We may cancel the quote or estimate without having to notify or receive an approval from You.
10.12 ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
10.13 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
10.14 We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.
10.15 Prices are based upon total Quote Purchase.
10.16 Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
10.17 Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable or the cost price of Goods or Services increases after the date of the Quote.
11. ORDERS
11.1 Order forms: You may place an Order for Goods and/or Services with Us. Normally, We will require that You provide either a completed Order form or You approve the quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable business number (including the full name or description of any person on whose behalf the order is placed), Your address together with any relevant Quote number and date.
11.2 Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form.
11.3 Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:
11.3.1 signed by, and duly authorized by, both the person who signed the Order and the person who sent the email; and
11.3.2 duly authorized by the person on whose behalf the Order is placed or apparently placed.
11.4 Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, until We have received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
11.5 No obligation to deliver: We are not obliged to deliver any Order until we have received payment in clear funds from You for the Order, any related freight, delivery and (where applicable) in-transit insurance costs or where We are unwilling or unable to complete the Order for any reason provided it refunds any payment made by You in respect of the Order.
11.6 Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You hereby consent to Us undertaking a credit reference check in respect to You.
11.7 Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has dispatched the relevant Goods and that such dispatch often occurs the same day as the Order is placed by Us.
11.8 Processes and Procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.
12. PRICING AND RATES
12.1 Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).
12.2 Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.
12.3 Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in its absolute discretion and without notice to You.
12.4 Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.
12.5 Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.
12.6 Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, gasoline, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorization
from You before such expenses are incurred.
12.7 Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.
12.8 Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
12.9 Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates.
12.10 Commencing one (1) year after the Effective Date of a Service Agreement, and at each subsequent anniversary, the prices of Our Broker Cloud hosting and Labour hourly rate will be increased automatically in line with the latest publicly advertised CPI figure (Consumer Price Index) by the Federal Government. For example, if Our Labour rate is $85 at your Annual Anniversary date and the currently publicly Advertised CPI Percentage from the Federal Government is 2%, then Our Labour rate will automatically update to $86.70.
12.11 Pre-Paid Blocks of Service: Where You agree to buy Pre Paid Blocks of Service during a Period, payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Each such rate being less any discount agreed in writing between Us and You in respect of the Pre-Paid Blocks of Service. Services included in a Pre-Paid Block of Service rate during the Period:
12.11.1 are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and
12.11.2 are only provided by Us during the applicable Period. Where Services are provided for a specified Period:
12.11.2.1 the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and
12.11.2.2 We are not liable to refund, reimburse, pay damages or otherwise compensate or indemnify You in respect of those unused Services.
13. SERVICES AND PLANS
13.1 Service and Plan Variations: Currently, We offer the Services and Plans referred to in the Rates Schedule and any Plan Schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.
13.2 Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.
14. CONTRACTING
14.1 We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.
15. DELIVERY, TITLE AND RISK
15.1 Delivery liability: We will use all reasonable endeavours to dispatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies or manufacturers.
15.2 Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.
15.3 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 15.3 will affect title to the Goods.
15.4 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 15.3.
15.5 Retention of Title: Until We receive full payment in cleared funds for any moneys due to Us by You on any account or for any reason:
15.5.1 title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;
15.5.2 You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;
15.5.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
15.5.4 Where You sell the goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account (however any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us);
15.5.5 Accounts that cannot be collected by Us may, in addition to any other contractual and legal remedy available to the Us, be turned over to an outside collection agency, and You agree to pay all costs towards such collection agency fee
16. RETURNS AND CLAIMS FOR GOODS AND SERVICES
16.1 General Returns Policy: Notwithstanding anything in these Conditions, You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
16.2 Customized Goods not returnable: Where Goods have some element of customization for You, are supplied pursuant to an Order for Goods that is in the opinion of Ours special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.
16.3 Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing, by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.
16.4 Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.
16.5 Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.
16.6 Consequences of use, installation, customization or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customized or re-sold by You (without prejudice to the recourse of such a customer to the manufacturer of the Goods).
17. COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE
17.1 Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having. While We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, You will always indemnify and hold Us harmless in the provision of our Services to You.
17.2 Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customization of new software or hardware for You or any other Work) under any Plan and You will pay for additional work at the Rates unless otherwise agreed. Without limiting the discretion of Us to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.
17.3 Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:
17.3.1 We may recommend that You purchase Goods provided by third parties from time to time;
17.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used or some function sought to be fulfilled;
17.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g.
17.3.3.1 the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or
17.3.3.2 the behaviour of third-party supplier, e.g. in relation to support;
17.3.4 You acknowledge that for a whole number of reasons outside of Our control, the Goods may fail to meet Your expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects;
17.3.5 You acknowledge that the Services provided by Us may involve the very task of seeking to customize Goods so they may be fit for particular purposes and that customization may be a very substantial project in itself;
17.3.6 Accordingly, You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:
17.3.6.1 decisions as to whether or not to follow recommendations by Us;
17.3.6.2 decisions as to whether or not to purchase or customize Goods or obtain Services for that or any other purpose; and
17.3.6.3 any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Your own independent advice or second opinion from a suitably qualified person;
17.3.7 Where We provide Services with a view to achieving Your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set-off or counter-claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that We have acted in good faith and have made what We consider, in Our absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
17.4 Testing Procedures: You will follow the instructions of Ours with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, We will, subject to these Conditions, allocate such resources as We consider reasonable in the circumstances towards their resolution.
18. FORCE MAJEURE
18.1 Force Majeure: If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.
18.2 We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.
19. PRODUCT SPECIFICATIONS
19.1 Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.
19.2 Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided however that You will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.
20. WARRANTIES
20.1 Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal direct with such manufacturer rather than Us for all claims covered by such warranties.
20.2 No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to You arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.
21. LIABILITY
21.1 Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
21.2 No liability. You agree to hereby RELEASE AND FOREVER DISCHARGE, and WAIVE any and all claims, which “Claims” shall mean any past, present and future claims, losses, costs, expenses, liabilities, demands, or causes of action, and costs of defense or settlement (including, without limitation, legal fees and court cost) against Us or any of our affiliates, directors, officers, shareholders or employees that arise from or relate to Our provision of Services or sale of Goods —including, but not limited to, the types of claims enumerated above —and agree not to sue Us or any of our affiliates, directors, officers, shareholders or employees for such Claims. Without limiting the foregoing, You agree that the We shall not be liable to You or Your successors, assigns, heirs or representatives or any Claims arising from or related to Our provision of Services or sale of Goods to You. YOU FURTHER AGREE TO INDEMNIFY and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You. You acknowledge You are solely responsible for backing up Your programs and data in order to mitigate Your own potential loss of programs and data and that we are in no way responsible for same.
21.3 Limit on consequential damage: You agree to waive, release, indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to You or any third party.
221.4 Limit on damage from a failure in supply: You agree to waive, release, indemnify and hold Us harmless for any allegation or claim for loss or damage by You or a third party where We have failed to meet any delivery date or cancels or suspends the supply of Goods or Services.
21.5 General limit on liability: Except as otherwise expressly stated in these terms and conditions, We are not liable for any loss or damage of any kind however caused (including, but not limited to, by the negligence of Us) which is suffered or incurred by You in connection with:
21.5.1 Goods or Services provided to You or any Work;
21.5.2 these Terms and Conditions;
21.5.3 Your use of Our website (including the use of a credit card or other debit device) or any linked website;
21.5.4 the non-availability of Goods or Our Services for any reason;
21.5.5 any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You, or
21.5.6 for any other reason whatsoever.
21.6 Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, clause 21.5 does not apply to that liability and Our liability for any breach of that condition or warranty is limited to Our doing any one or more of the following (at its election):
21.6.1 replacing the Goods or supplying equivalent Goods, Services or Work;
21.6.2 repairing the Goods or the Work;
21.6.3 paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or
21.6.4 paying the cost of having the Goods or the Work repaired.
21.7 Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any Province or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.
21.8 Severance: If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of the Conditions.
22. ERRORS AND OMISSIONS
22.1 We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.
OUR RESPONSIBILITIES
23. PRIVACY STATEMENTS AND YOUR RIGHTS
23.1 We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may retain and use it for any such purposes (“Authorised Purposes”).
23.2 You are required to provide your personal information to Us for Authorised Purposes.
23.3 We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for you or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for your purposes, or to confirm Your requirements, to anyone proposing to supply Goods or Services to You, or to acquire Goods or Services on Your behalf, or in respect of enquiries relating to any of the foregoing.
23.4 Otherwise We will not disclose Your personal information without Your consent unless authorised by law.
23.5 Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it.
23.6 We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if you submit incorrect information.
24. OUR WEBSITE
24.1 We make no representations or warranties in relation to information available on Our website, including without limitation:
24.1.1 that the information on Our website is complete or correct;
24.1.2 that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.
25. INSURANCE COVERAGE
25.1 We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage, as well as cyber-insurance. At Your request We will provide You with certificates, including renewal certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal and at other times as may be reasonably requested by You.
YOUR RESPONSIBILITIES
26. LODGING OF SERVICE REQUESTS
26.1 In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests as outlined in Appendix A.
27. ACCESS TO SYSTEMS, SITES AND PEOPLE
27.1 In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.
27.2 You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.
28. THIRD PARTY AUTHORISATIONS
28.1 At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.
29. PAYMENT, LATE PAYMENT AND DEFAULT
29.1 Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing) by cash, cheque, credit card or direct deposit in accordance with these Terms and Conditions and in the way set out in the Invoice.
29.2 30 days late: Where You fail to pay an invoice within thirty (30) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.
29.3 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable without any further notice to You. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due”.
29.4 Interest: If payment of any Sum Due is not made on time, they will be subject to a 2% late payment fee per month and will be automatically charged.
29.5 Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:
29.5.1 first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us;
29.5.2 secondly, in or towards payment of any interest due or payable hereunder, and
29.5.3 thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.
29.6 Payment arrangements: In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to You.
29.7 Other remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any moneys due to Us, notwithstanding it may have exercised other rights under these Conditions.
30. NON-SOLICITATION OF CLIENTS AND EMPLOYEES
30.1 You agree that as employees are one of Our most valuable assets, policy and professional ethics require that Our employees not seek employment with, or be offered employment by You during the course of engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).
30.2 You agree that Our damages resulting from breach of this clause 30.1 would be impracticable and that it would be extremely difficult for Us to ascertain the actual amount of damages. Therefore, in the event You violate this provision, You agree to immediately pay Us 100% of the employee’s total annual salary, as liquidated damages and We shall have the option to terminate this Agreement without further notice or liability to You. The amount of liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel.
31. SOFTWARE
31.1 Unless otherwise specified, all Software licenses are the responsibility of You and not that of Us. It is the duty of Yours to store all licenses for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by Us.
31.2 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:
31.2.1 any unauthorized Software use by You;
31.2.2 any breach of any Software license in respect of Software provided to Us by You to be installed on one of Your computers;
31.2.3 otherwise as a result of Us installing Software at Your where You are not authorized to use the Software; and
31.2.4 any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
31.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.
32. COPYRIGHT AND CONFIDENTIALITY
32.1 Warranty and breach: You warrant that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by You to Us belongs to You. In the event of any breach of this warranty, You will pay all sums due to Us as If such warranty had not been breached (and regardless of any non-performance of any obligation by Us on account of or in connection with the breach of such warranty). You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.
32.2 Retention of title: All copyright and other intellectual property rights in any Work created, commissioned or acquired by Us in the course of the supply of Services by Us to You will be the exclusive property of Ours unless otherwise agreed in writing by Us and You.
32.3 Confidential Information: We acknowledge that in the course of providing Services to You, We may learn from You certain non-public personal and otherwise confidential information relating to You, including Your customers, consumers or employees. We shall regard any and all information We receive which in any way relates or pertains to You, including Your customers, consumers or employees as confidential.
32.4 You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us or which comes to Our attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary information to Us.
As such, both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose except unless permitted in writing by the disclosing party or as required by applicable law.
APPENDIX A
SERVICE REQUEST LODGEMENT PROCESS
When you contact us to lodge a service request only the methods below must be used:
Email: tickets@plextec.com
Website: https://www.plextec.com/support/
Phone: (519) 893-5126 Ext. 1 / (905) 608-0988 Ext. 1
Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.
If the issue is being lodged by either phone or external email you must include your name, company and return contact details.
Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.
SERVICE REQUESTS OUTSIDE OF OUR BUSINESS HOURS
Service Requests that must be addressed outside of business hours must be lodged by email or web portal (charges may apply for after-hours work). If not, the Service Request will be viewed on Our next Business Day.
HOSTING TERMS & CONDITIONS
1. DEFINITIONS AND INTERPRETATION
Definitions. In this agreement, unless otherwise stated the following terms shall have the meaning prescribed for each.
“Agreement” means the terms and conditions described herein, and the Schedules incorporated by reference. This Agreement also includes all subsequent amendments and change tickets in writing and executed by authorized officials of the Parties.
“Business Day” means any day other than Saturday or Sunday or a statutory holiday so recognized by the province of Ontario.
“Client Data” means all data and information of whatever nature and type and in all formats, other than Infrastructure Host Data, received, used, developed, or transmitted by the Client in accessing the Infrastructure Technology Environment and in respect of which the Client has a proprietary interest or the right to possess, use or modify. Client Data is deemed to be Proprietary and Confidential Information of the Client.
“Client Hardware” means the computer equipment or devices of the Client used to connect to or access the Infrastructure Technology Environment.
“Client Software” means the computer programs, in object code or source code and including the operating system and microcode not embedded in a circuit element, and all applicable documentation and media, owned by the Client, or of which the Client is a licensee, and operating on or accessing the Infrastructure Technology Environment on-line over the internet.
“Effective Date” means the date Client’s access to the Infrastructure Technology Environment and the provision of Hosting Services by the Infrastructure Host commences under this Agreement.
“Hosting Services” means provision by the Infrastructure Host to the Client of access to the Infrastructure Technology Environment, including all associated support and maintenance activities, as described in Schedule A. Hosting Services may be changed from time to time by the Parties based on change ticket process of the Infrastructure Host.
“Infrastructure Host Data” means all information, of whatever nature and type and in all formats, used to provide the Hosting Services, and in respect of which the Infrastructure Host has a proprietary interest. Infrastructure Host Data is deemed to be Proprietary and Confidential Information of the Infrastructure Host.
“Infrastructure Technology Environment” means the computer processing, storage, networks, and other computer-based components, including all associated computer programs in object code or source and including microcode not embedded in a circuit element, and all applicable documentation, provided by the Infrastructure Host under this Agreement. This expressly excludes (i) user administration, (ii) third party application support; and (iii) office / home office and or any related connectivity.
“Parties” means the Client and the Infrastructure Host and “Party” means one of them as the context provides.
“Proprietary and Confidential Information” means the information of either Party (“disclosing Party”), accessed by, transmitted to or otherwise disclosed to the other Party under this Agreement, and identified as proprietary or confidential information of the disclosing Party. The Parties agree that all personal information, cost, pricing and other financial information of Party, Client Data, Client Software and Infrastructure Host Data shall be deemed to be Proprietary and Confidential Information of the disclosing Party, whether or not specifically identified as such.
Currency. Unless otherwise stated in this Agreement, all dollar amounts shall be Canadian dollars.
Accounting Terms. Unless otherwise stated in this Agreement, all accounting terms shall be interpreted in accordance with Canadian GAAP.
Assignment. This Agreement will be binding on and enure to the benefit of the Parties and their respective successors and permitted assigns. The Client may assign this Agreement or any of its rights or obligations hereunder to its parent company without the consent of the Infrastructure Host, and to an affiliate with the prior written consent of the Infrastructure Host, such consent not to be unreasonably withheld. Subject to the right described in Section 6.0 to subcontract the provision of certain Hosting Services, the Infrastructure Host shall assign this Agreement or any of its rights or obligations to any other party without the prior written consent of the Client.
Sections, Headings and Contra Proferentem. The division of this Agreement into Articles, Sections and Paragraphs and the insertion of headings are for convenience of reference only and shall not affect the interpretation or construction of this Agreement. Unless otherwise indicated, any reference in this Agreement to an Article, Section, Paragraph or Schedule refers to the specified Article, Section, Paragraph or Schedule to this Agreement. Each Party acknowledges that it has reviewed and participated in determining the terms and conditions of this Agreement and agree that any rule of construction or doctrine of interpretation, including contra proferentem, construing or interpreting any ambiguity against the drafting party shall not apply.
Gender and Number. Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing one gender include the other gender.
Invalidity. Any provision in this Agreement which is held to be illegal or unenforceable shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining provisions of this Agreement.
Further Assurances. The Parties shall with reasonable diligence do all things and provide all reasonable assurances as may be required to implement the provisions of this Agreement, and each Party shall provide such further documents, instruments and cooperation required by the other Party as may be reasonably necessary or desirable to give effect to this Agreement and to carry out its provisions.
Waiver. No waiver of any provision of this Agreement, including waiver of a breach of this Agreement, shall constitute a waiver of any other provision or breach of this Agreement unless expressly provided otherwise. No waiver shall be binding unless executed in writing.
Amendment. This Agreement may only be changed by a document in writing signed by both Parties.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable thereto, other than rules regarding conflict of laws. Subject to the Dispute Resolution provision of this Agreement, the courts of the province of Ontario shall have exclusive jurisdiction to entertain any legal proceedings arising under this Agreement.
Time of the Essence. Time shall be of the essence of this Agreement and of every part hereof, and no extension or variation to this Agreement shall operate as a waiver of this provision.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to its subject matter. It supersedes all prior or other agreements, understandings, representations, warranties, proposals, negotiations and discussions, whether oral or written, of the Parties.
2. SCHEDULES
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.
2.2 The Schedules to this Agreement are as follows:
Schedule A: Hosting Services & Payment Estimate
2.3 The Schedules may be changed from time to time by change ticket process of the Infrastructure Host.
3. APPOINTMENT AND ACCEPTANCE
3.1 The Client appoints the Infrastructure Host, and the Infrastructure Host accepts the appointment, to:
(a) Provide remote, on-line access over the internet to the Infrastructure Technology Environment; and
(b) Provide the associated Hosting Services described in Schedule A.
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.
3.3 Infrastructure Host reserves the right to limit its technical support to its area of expertise. Infrastructure Host provides support for issues which directly relate to servers, or virtual accounts functioning. Support issues relating to programming, development, or software related problems or any other items expressly excluded from the Infrastructure Technology Environment are outside the scope of work of the Infrastructure Host and as such will be billed to the Client at an additional rate to be agreed between the Parties.
4. COMPENSATION AND PAYMENT
4.1 As consideration for provision of the Infrastructure Technology Environment and Hosting Services under this Agreement, the Client shall pay the Infrastructure Host such costs, fees and amounts as are detailed in the fee estimate attached hereto as Schedule A, plus HST on the first day of each calendar month during the term of this Agreement. Fees are due when invoiced, rent is due at the beginning of each calendar month. Hosting Services may be interrupted on any and all accounts for non-payments which are fourteen (14) calendar days past due. Accounts interrupted as a result of non-payment will be subjected to a $100.00 reconnection fee. Accounts that are not paid by their due date are also subject to a 2% monthly late fee (prorated for periods that are not full months). Any additional service fees, including technical support, bandwidth overage charges, and other additional fines, or fees will be charged at the end of the month, or at Infrastructure Host’s discretion. Accounts that cannot be collected by Infrastructure Host may, in addition to any other contractual and legal remedy available to the Infrastructure Host, be turned over to an outside collection agency, and the Client agrees to pay all costs towards such collection agency fee.
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.
5. SUBCONTRACTING
5.1 The Client acknowledges that certain of the Hosting Services may be subcontracted by the Infrastructure Host to other parties. The Client agrees that the Infrastructure Host may do so without the prior consent of the Client. Notwithstanding the subcontract of Hosting Services, the Infrastructure Host shall remain wholly and completely liable to the Client for the Hosting Services and their compliance with the terms and conditions of this Agreement.
6. TERM
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.
6.2 After the expiry of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by the Client as specified in Clause 6.3.
6.3 Should the Client wish to terminate this Agreement before the end of the commitment term, You agree to pay Us the difference between our month-to-month contract rates at the time of signing this contract and the discounted [one (1) or two (2) year] contract rates you received, times the number of months of service received at the time of cancellation. In addition, you agree to pay Us a 3-month termination fee based on a multiple of three (3) times the average of your three (3) most recent invoices. This payment will be made within 14 days of providing Us Notification of Termination.
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.
7. INFRASTRUCTURE HOST RESPONSIBILITIES
7.1 In providing remote, on-line access over the internet to the Infrastructure Technology Environment, and undertaking the Hosting Services, the Infrastructure Host shall:
(a) Provide the Infrastructure Technology Environment;
(b) Grant the Client remote, on-line access over the internet to the Infrastructure Technology Environment;
(c) Perform the Hosting Services described in Schedule A conscientiously, by the use of qualified and competent personnel including subcontractors, lawfully, and in a good and professional manner;
(d) Assign a qualified and competent personnel (in the sole and absolute discretion of the Infrastructure Host) to undertake the Hosting Services, and to maintain the Infrastructure Technology Environment in operational condition in accordance with its standards specifications throughout the term of this Agreement; and
(e) Access, use, and support Client Data, as required and only for the performance of Hosting Services, in a secure manner and in accordance with all Client security and privacy restrictions of which it has been informed in writing. If there is any addition to or changes to such restrictions or other requirements after the date of this Agreement, and for which Infrastructure Host compliance causes delay, an increase in costs or other material change to the Hosting Services or other Infrastructure Host obligations hereunder, this Agreement will be amended accordingly by change ticket process of the Infrastructure Host.
8. CLIENT RESPONSIBILITIES
8.1 To enable and support the Infrastructure Host in the provision to the Client of remote, on-line access over the internet to the Infrastructure Technology Environment and the performance of Hosting Services, the Client shall, without limitation:
(a) Perform those tasks assigned to the Client. The Client shall assign qualified and competent personnel who shall perform the tasks lawfully and in a good and professional manner;
(b) Grant the Infrastructure Host access to Client Data, Client Hardware and Client Software, as reasonably required, to facilitate remote, on-line access over the internet to the Infrastructure Technology Environment and to perform Hosting Services;
(c) Maintain proper computing environment at all applicable Client locations to enable remote, on-line access over the internet to the Infrastructure Technology Environment and the performance of Hosting Services by the Infrastructure Host;
(d) Follow Infrastructure Host procedures and requirements for the provision of remote, on-line access over the internet to the Infrastructure Technology Environment and the performance of Hosting Services;
(e) Undertake any enhancements to or other changes to Client Hardware and Client Software during the term of this Agreement in collaboration with the Infrastructure Host. In the event that any such enhancement or other change prevents or otherwise hinders Client access to the Infrastructure Technology Environment or the performance otherwise of Hosting Services, the Infrastructure Host shall not be liable or otherwise responsible to the Client for the same; and
(f) Pay the Infrastructure Host for the provision of the Infrastructure Technology Environment and Hosting Services in accordance with Article 4.0 of this Agreement.
9. INFRASTRUCTURE SUPPORT AND NON-INFRASTRUCTURE SUPPORT
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:
- Maintenance and monitoring of servers, networks, and storage systems
- Implementation and management of security protocols
- Hardware and software updates and patch management
- Backup and disaster recovery services related to failure of infrastructure hardware
- Network performance optimization and troubleshooting
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:
- Assistance with third-party applications
- User administration support, such as account creation, password resets, and permission changes
- End-user support for software and applications
- Training and consulting services for non-infrastructure applications
10. CHANGE TICKET
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. BACKUP AND CLIENT DATA INTEGRITY
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. PERSONAL INFORMATION PROTECTION
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. PERFORMANCE
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. REPRESENTATIONS AND WARRANTIES OF THE INFRASTRUCTURE HOST
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. REPRESENTATIONS AND WARRANTIES OF THE CLIENT
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. CO-OPERATION
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. TECHNOLOGY CHANGE
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. OWNERSHIP OF CLIENT DATA
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. OWNERSHIP OF INFRASTRUCTURE HOST DATA
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. INTELLECTUAL PROPERTY
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. LIABILITY
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. TERMINATION FOR CAUSE
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. TRANSITIONAL ASSISTANCE SERVICES
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. INDEMNITIES
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.
24.2 Client Indemnification
(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. DISPUTE RESOLUTION
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. GENERAL
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.