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Storage and Bandwidth Services Reseller Agreement
DIT Web Solutions Inc.
NOTICE TO USER. This is a legal contract between the company whose information is included in the Order Form ("You", “Reseller” or “Client", used interchangeably) and DIT Web Solutions Inc. (“We”, “Us”, “DIT” or “Supplier”) concerning the website hosting services and other electronic storage and distribution facilities and other services for websites and other electronic media and content, collectively “Hosting Services”. By checking the box next to “I agree” on this page, You are consenting to be bound by all terms and conditions of this Web Hosting Agreement ("Agreement"). If You do not agree to all terms and conditions of this Agreement, You may not use any of the Hosting Services.
The company whose information is listed in the Order Form is the Client, whether it be You directly (if a sole proprietorship or partnership) or a corporation. In the event the Client is a corporation, You agree that You will be held personally responsible under these terms and conditions in the event that You are not authorized to bind that corporation. For all sections of this Agreement other than this paragraph, “You” shall refer to the Client whether or not the Client is a corporation, partnership or sole proprietorship.
This and all content, information, services and software ordered or provided on or through DIT may be used solely under the terms and conditions of this Agreement.
WHEREAS the Supplier is in the business of providing website hosting services and other electronic storage and distribution facilities and services for websites and other electronic media and content;
AND WHEREAS the Supplier, in order to carry out his business, rents and maintains a server from a third party (the “Head Supplier”) within a remote data center under an agreement (the “Server Agreement”), and under the Server Agreement, is permitted to resell the internet connectivity, IP addresses and internet traffic services (“Storage and Bandwidth Services”) provided by the Head Supplier to third parties;
AND WHEREAS the Reseller wishes to offer Hosting Services for sale to its customers (“Clients”) and wishes to enter into an agreement with Supplier to purchase certain Storage and Bandwidth Services from the Supplier, and to offer Hosting Services to Clients utilizing these Storage and Bandwidth Services thereafter;
AND WHEREAS the parties wish to set out the terms and conditions upon which the Supplier will provide the Storage and Bandwidth Services to the Reseller.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
- Definitions. In this Agreement, unless the context otherwise requires, the following terms have the following meanings:
“Agreement” means this agreement and any schedule, appendix, addendum or amendment which is signed by the parties and which references this agreement;
“Business Day” means any day, other than Saturday, Sunday or any statutory holiday in the Province of Ontario;
“Malicious Script” means CGI (common gateway interface) script, PHP (pre processed hypertext) script, and ASP (active server page) script;
“Client Content” means all production media, content, documentation, data, images, text, software, web pages, artwork, trademarks, tradenames, logos, sound, graphics, video, files and other material, however stored and/or encoded, that is supplied by the Reseller to the Supplier for the purposes of the Supplier performing the Services, including without limitation each Client’s Website;
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by a party and relating to such party’s operations, products, designs, plans, strategy, customers, business opportunities, finances, research, development, know-how, trade secrets or employees, and, at the time of disclosure, is designated as confidential, is disclosed in circumstances of confidence, or would be understood by the receiving party, exercising reasonable business judgment, to be confidential;
“FTP” means file transfer protocol;
“Order Form” means the online form that is completed and submitted by the Reseller outlining the Services purchased by the Reseller, the cost of these Services, as well as all relevant information relating to the Reseller.
“SPAM” has the meaning set out for such term in section 3.3(d);
“Term” has the meaning set out for such term in section 5.1; and
“Website” means a series of interconnected web pages intended to be accessible by Internet users with a web browser.
- Headings and Table of Contents. The inclusion in this Agreement of headings, subheadings and table of contents is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
- Gender and Number. In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
- Currency. In this Agreement, all amounts are stated and payable in Canadian currency.
- Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the parties in connection with such subject matter except as specifically set forth or referred to in this Agreement.
- Modification and Waiver. This Agreement may not be modified unless agreed to in writing by both the Reseller and the Supplier. No extension of any time limit granted by a party shall constitute an extension of any other time limit or any subsequent instance involving the same time limit. No consent by a party to, nor waiver of, a breach by the other, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.
- Counterparts. This Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, when taken together, shall constitute one and the same instrument.
- SERVICES TO BE PROVIDED
- Allocation of Server Space and Bandwidth Transfer. The Supplier agrees to allocate the amount of server space on its server, number of domain licences and amount of monthly bandwidth transfer ordered by the Reseller on the Order Form to the Client, subject to the terms of this Agreement.
- Pricing for Additional Services or Storage and Bandwidth Services. The Supplier will provide certain services other than the agreed Storage and Bandwidth Services (when possible) (“Additional Services”) to the Reseller in accordance with the then current service table, which can be found http://www.ditcanada.net/servicetable (“Service Table”). The Supplier will also supply additional Storage and Bandwidth Services, when possible, to the Reseller as needed, in accordance with the Service Table
- Manner of Provision of Services. The Resources will be provided in a good and professional manner, in accordance with all applicable laws, rules and regulations, and in accordance with all industry standards generally applicable to the provision of similar services.
- Right of Refusal. Supplier has absolute discretion relating to its provision of Storage and Bandwidth Services. Supplier may refuse to provide Storage and Bandwidth Services to the Reseller, may refuse to permit Reseller to host any particular content, may refuse to accept any particular Client Content, and may remove any Client Content in its sole and absolute discretion. Supplier must provide notice to Reseller of any removal ofClient Content, but shall not be required to give notice in advance of exercising its rights under this section 2.4.
- Relationship between parties. Reseller is an independent contractor responsible for hiring its own employees, exercising sole and absolute discretion, judgment and control over the management and day-to-day operations of its business, and achieving the objectives of its business. This Agreement does not create a relationship of principal and agent, joint venture partnership or employment. Neither party is liable for any obligations incurred by the other. Reseller will not act or represent itself, directly or by implication, as an Reseller of Supplier with any authority other than as set forth expressly in this Agreement.
- Malicious Scripts. The Supplier reserves the right, in its sole discretion, at any time, to decline to host any Malicious Scripts, as defined above.
- RESELLER RESPONSIBILITIES
- Format of Media. The Reseller is responsible for managing and posting all Websites and Client Content directly via file transfer protocol, commonly known as “FTP”. The Supplier may assist the Reseller in this process for an extra charge, outlined in schedule A.
- Required Protocol relating to Clients. The Reseller shall be the single point of contact with the Supplier, and shall not for any reason provide any contact information or other identifying information to any third party relating to the Supplier. The existence of this relationship shall be kept confidential by the Reseller except where required by law. Reseller shall be responsible for all fees incurred by Clients, whether or not incurred with the consent of Reseller. Reseller shall ensure that Clients have all insurance that would be ordinarily be required.
- Compliance with Laws. The Reseller agrees to ensure that all Client Websites and Client Content complies with all local, provincial, federal and international laws, including but not limited to those laws regarding:
- court ordered publication bans;
- restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting or exposing, obscene or threatening material, child pornography, or hate propaganda (and the Reseller understands that these situations could generate criminal liability for the Reseller and/or its Clients);
- restrictions on the use of trade-marks or trade names, or any work which is protected by copyright, trade secret, patent or other intellectual property laws, including without limitation, software;
- restrictions on the distribution and dissemination of unsolicited commercial electronic messages (“SPAM”),
- restrictions on defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and other situations which could generate liability;
- provincial, federal and international securities laws;
- fraud or misrepresentation; and
- export and import restrictions.
- Responsibility for Website Content. The Reseller agrees to be solely responsible for all Website Content and Client Website content posted on the Supplier’s server and the implications of the hosting of the Reseller’s Website and Reseller Content and any and all items, statements or other content transmitted, posted, received or created through any Client's Website, even if transmitted, posted, received or created by someone else.
- Compliance with Rules and Regulations. The Reseller agrees to comply with, and ensure its Clients comply with, all of the Supplier’s Internet policies, Acceptable Use guidelines, rules and regulations as they may be established by the Supplier, in its sole discretion, from time to time, and understands that these will be established and/or amended in accordance with the policies, rules and regulations of the Head Supplier. Reseller understands and agrees that it is responsible for the actions or omissions of its Clients, and acknowledges that any act or omission of any of its Clients will be deemed to be an act or omission by the Reseller.
- Specific Requirements. The Reseller agrees to not use the Storage and Bandwidth Services, and agrees to not permit any of its Clients to use the Storage and Bandwidth Services, for any of the following activities:
- Distribution of any tools designed for compromising security;
- Interconnecting with any other Clients or other users of the services located at the premises of the Head Supplier;
- Accessing without authority any data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
- Deliberate attempts to overload a system and broadcast attacks
- Forging of any TCP-IP packet header or any part of the header information in an email or newsgroup posting;
- Intentionally or negligently transmitting files containing a computer virus or corrupted data;
- Sending unsolicited email messages, commercial advertising and informational announcements;
- Using its mail server to relay another site's mail server without express written consent from that site;
- Sending out unsolicited email that promotes or in any way points to a location inside the Head Supplier's network
- Distribution of tools designed to aid in the distribution or development of unsolicited bulk email;
- Any other conduct that results in a Client or Reseller being placed on any recognized SPAM abuse list; or
- Any other conduct that results in the Supplier being denied service or otherwise cited by the Head Supplier.
- Representations and Warranties. The Reseller hereby represents and warrants to the Supplier, acknowledges that the Supplier is relying on such representations and warranties, and acknowledges that such representations and warranties will survive the termination or expiry of this Agreement:
- that the Reseller has the right to enter into this Agreement and allow the Supplier to perform the Services; and
- that the Reseller is the lawful owner or duly authorized licensee of all Reseller Content and has the legal authority to use the Reseller Content in the manner required for the Supplier to provide the Services.
- Indemnity. Reseller agrees to indemnify and hold harmless the Supplier and the Head Supplier for any fines, liabilities, costs and expenses, including legal fees, suffered by the Supplier or Head Supplier relating to or arising from any of the following
- Any act or omission by Reseller that breaches this Agreement;
- Any act or omission by any Client that causes the Reseller to breach this Agreement, or would be considered a breach of this Agreement if committed by the Reseller;
- Any claim made by any third party, including by any Client, against Supplier as a result of the conduct of any Client or the Reseller;
- Any claim made by any Client against the Supplier or the Head Supplier for any reason whatsoever, even if the claim is for damages suffered by the Client as a result of the negligent or intentional acts or omissions of the Supplier or the Head Supplier.
Reseller agrees that it shall be responsible for Client actions under this section, whether or not it is aware or should be aware of the same.
- Insurance. The Reseller shall maintain at least $2,000,000 in general liability insurance (on both a per occurrence and aggregate basis) and $2,000,000 (on both a per occurrence and aggregage basis) of errors and omissions insurance in order to ensure that it is able to carry out its responsibilities under section 3.8, and will provide evidence to the Supplier of the existence and good standing of this insurance as requested, in a timely manner.
- No direct solicitation. As valuable consideration for the Supplier agreeing to provide the Storage and Bandwidth Services, the Reseller agrees that during the Term, and for one (1) year thereafter, the Reseller shall not enter into any agreement with the Head Supplier for any services that are identical to or similar to and competitive with the Storage and Bandwidth Services.
- Payment of Fees. In consideration of the Supplier providing the Storage and Bandwidth Services, the Reseller will pay to the Supplier all fees due for the Services ordered by the Reseller, as outlined in the Order Form, plus all applicable taxes.
- In consideration of the Supplier providing Additional Services or additional Bandwidth as ordered by the Reseller, the Reseller will pay to the Supplier the amounts outlined in the Service Table at the time of order.
- The Supplier may require up front payment for any Services or Additional Services. The Supplier may refuse to provide Services or Additional Services until payment in full is received.
- If any Services are not prepaid, the Supplier shall issue aninvoice outlining all fees due for Services and Additional Services . All fees outlined in any invoice are due and payable ten days from the date the invoice is issued (the “Due Date”).
- Any relevant fee calculation period shall start as of the date that the Supplier begins to provide Services.
- Interest. Interest will be charged on all overdue amounts at a rate of 18% per annum or the maximum rate allowable by law, whichever is less.
- Unused Services. Unused Storage and Bandwidth Services may not be transferred or assigned by the Reseller and prepaid fees or deposits are totally non-refundable and not subject to setoff for any reason whatsoever.
- TERM AND TERMINATION
- Term. This Agreement shall be in force on the date that the Supplier agrees to provide Services or Additional Services outlined in the first Order Form submitted by the Reseller (the “Effective Date”), and shall be in force from the Effective Date until the last day of the time period chosen by the Reseller in the Order Form (the “Selected Period”) (which period shall begin to run as of the Effective Date) (the “Term”). This Agreement shall expire (subject to section 7.1) on the last day of the Term, unless this Agreement is renewed in accordance with section 5.2. For clarity, the Term includes the time period outlined in this section, and any Renewal Term, unless earlier terminated in accordance with the provisions of this Agreement.
- Automatic Renewal. Provided the Reseller is in compliance with the terms of this Agreement, this Agreement will automatically renew at the end of the current Term, for up to ten successive Selected Periods(each a “Renewal Term”). Each Renewal Term shall begin on the calendar day following the last day of the previous Term or Renewal Term In any Renewal Term, the Supplier shall continue to provide the Services upon the same terms and conditions as the previous Term or Renewal Term, except that the fees payable by the Reseller to the Supplier for the Services will be at the Supplier’s fees as of the first day of the Renewal Term (outlined in the then current Service Table). This Agreement will not renew if either party has delivered to the other, at least 30 days prior to the end of a Term or Renewal Term, written notice of its intent not to renew this Agreement.
- Termination. The Reseller has no right to terminate this Agreement during the Term (including any Renewal Term), other than the right to not renew with at least 30 days notice from the end of the Term (or any Renewal Term). Without limiting any other rights or remedies available to the Supplier, at law or in equity, the Supplier has the right to terminate this Agreement immediately and without notice to the Reseller, and without compensation being payable to the supplier, if:
- the Reseller is in breach or default of any of its obligations under this Agreement and such breach or default continues unrectified for fifteen (15) days following the provision of written notice of such breach or default to the Reseller;
- the Reseller voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against the Reseller under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to the Reseller’s assets;
- the Reseller ceases to carry on its business;
- the Supplier has not received any payment when due under this Agreement; or
- the Supplier is required to terminate the Agreement as a result of any order or request by the Head Supplier, whether or not the request is caused by the actions or omissions of Reseller or any Client.
- Effect of Termination. In the event of termination of this Agreement for any reason whatsoever prior to the end of the then current Term, except termination under section 5.3(e), without limiting any other rights or remedies which may be available to the Supplier in law or in equity, the Reseller will immediately pay to the Supplier as liquidated damages and not as a penalty all amounts due or payable under this Agreement including without limitation amounts which would have been payable by the Reseller over the remainder of the then current Term.
- LIMITATION ON LIABILITY
- No representation or Warranty. The Storage and Bandwidth Services (as well as any other services provided by the Supplier) are not guaranteed and are provided on an “as is” basis and the Supplier gives no representations, warranties or conditions of any kind, express or implied, including without limitation warranties as to uninterrupted or error free service, accessibility, privacy of files or electronic messages, security, merchantability, quality or fitness for a particular use or purpose and those arising by statute or otherwise, or from a course of dealing or usage of trade. Service interruptions may occur from time to time, and the Supplier makes no warranty, implicit or otherwise, as to the reliability of the Storage and Bandwidth Services.
- No Liability. In no event will the Supplier, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim from either the Reseller or any Agent or any Client or any third party for:
- punitive, exemplary or aggravated damages;
- damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Client Websites, Client Content or other Reseller or Client materials or facilities (including its computer resources, Website and any stored data;
- indirect, consequential or special damages of any kind;
- contribution, indemnity or set-off in respect of any claims against the Reseller by any third party;
- any damages whatsoever related to third party products, Reseller materials or any goods or services not developed or provided by the Supplier; or
- any damages whatsoever relating to interruption, delays, errors or omissions.
- Limitation on Liability. Without limiting the generality of either section 6.1 or 6.2, the maximum total liability of the Supplier for any claim whatsoever, under any circumstances, including claims for breach of contract, tort, negligence or otherwise, and the Reseller's sole remedy, will be strictly limited to an award for direct, provable damages not to exceed the amount of fees paid to the Supplier hereunder during the then current Term.
- Limitation on Time. No action arising or relating to this Agreement or the Supplier’s obligations hereunder, regardless of form, may be brought by the Reseller more than three (3) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, the Reseller.
- SECTION 7 CREDIT CARD PAYMENT PLAN [GLOBAL]
- “Payment Processor” means any third party payment processor employed by DIT to process Credit Card Account payments.
- “Invoiced Amount” means the total amount payable for all Services and Additional Services to be provided during the Invoice Period
- “Invoice Period” means the period of time that DIT agrees to provide Services or Additional Services, in exchange for payment of all fees relating to the same, as outlined in the Order Form submitted by Reseller
- “Credit Card Account” means the credit account associated with the credit card whose information Client provides to DIT on the Order Form.
- In the event that DIT requires that you submit a credit card or any other recurring pre-authorized payment method, you acknowledge and agree as follows:
- Once an invoice is issued to you for an Invoice Period, You promise to pay the Invoiced Amount by payment billed to your Credit Card Account in accordance with the terms outlined in this section 7 (the “Credit Card Plan”).
- You hereby irrevocably authorize DIT and/or Payment Processor, to charge your Credit Card Account for the Invoiced Amount at any time subsequent to DIT’s issuance of an invoice.
- Upon Our acceptance of your Application, and in exchange for your covenants contained in this agreement, We may provide our Services on credit without payment in advance.
- The Credit Card Plan is applicable only to the purchase of the Services ordered by You. Our acceptance of You for the Credit Card Plan does not extend to any other products.
- The terms and conditions contained herein relate to your purchase of Services and Additional Services from DIT, and take precedence over the terms and conditions of any other agreements that you have with any other party, including your Credit Card Account company or your Client.
- You warrant to DIT that you have not entered into any other agreement, either with your Credit Card Account company or otherwise, that interferes with your ability to comply with the terms of the Credit Card Plan
vii In the event of an inconsistency between the terms and conditions contained in this agreement and any other agreement you have with DIT or with any other party, the terms and conditions contained herein shall prevail with regard to the Credit Card Plan.
- You agree that the Invoiced Amount, or any amount outstanding thereon at any particular time, is a liquidated debt and is due and payable in full to DIT in return for the services We provide to Client.
In the event of a charge back by you to your Credit Card Account for any Invoiced Amount or portion thereof for any reason whatsoever, or in the event that Client attempt to refute or disclaim or otherwise deny the validity of the debt created by Client’s agreement to pay the Invoiced Amount and/or Client’s entry into the Credit Card Plan, or in the event that Client’s Credit Card Account company refuses to process any Invoiced Amount when due (whether due to its own policies, or a lack of available credit, cancellation of Client’s credit card by Client or any other party, or for any other reason), the entire outstanding amount of the Invoiced Amount shall be immediately due and payable from Client to DIT. In this event, notwithstanding anything contained in Client’s credit card account agreement or any other agreement, We shall have the right, without notice to Client and at Our sole discretion, to charge to Client’s Credit Card Account for any and all Invoiced Amounts together with a penalty of 30% of the outstanding Invoiced Amounts, in addition to the balance of the Invoiced Amounts, or alternatively, invoice Client directly for this payment. Client hereby irrevocably authorize DIT to charge this balance to Client’s Credit Card Account immediately without notice to Client once notice of a charge back or other refusal to pay is received by DIT on account of Client’s Credit Card Account.
- SERVICES AND ACKNOWLEDGEMENT
Client’s payment of the Invoiced Amount shall relate to Services already ordered. If Client cancels this Credit Card Plan, DIT will not refund any Invoiced Amounts already charged to Client’s Credit Card Account, and reserves the right to charge any amounts or penalties calculated with regard to section5.4 to Client’s Credit Card Account (if such cancellation amounts to a termination or breach of this Agreement).
If the Client has a dispute with the Invoiced Amount, or otherwise wish to arrange alternative payment of the Invoiced Amount for any particular Invoice, Client are required to advise DIT of the same within 48 hours of receiving any particular Invoice. If the Client has not contacted DIT within 48 hours of Client’s receipt of any particular Invoice, Client is deemed to accept the Invoiced Amount as valid and payable, and Client acknowledge the sufficiency of the Services rendered and received and the reasonableness of the charges relating to the Services.
Once the Client has received the Services or Additional Services, the Client has received the entirety of the goods and services for which Client are agreeing to pay the Invoiced Amount. No amount paid or payable under this agreement is refundable or retractable for any reason. However, in the event of any billing error or other issue that results in an overbilling or other reasonable dispute by Client in regard to the Invoiced Amount, Client must advise DIT of the same within 48 hours of receipt of the Invoice. In the event Client does so, DIT will correct the error no later than the next Invoice, either by refund to Client’s Credit Card Account or by credit to Client’s next Invoice.
- CONFIDENTIALITY AND PRIVACY
Client hereby consents to DIT, or any of DIT’s Payment Processor used thereby, retaining Client’s Credit Card Account information for the limited purposes of honoring this agreement and ensuring that the Invoiced Amount is paid. Further, Client consents to DIT providing its Credit Card Account information to a PCI compliant third party payment processor for payment processing and storage.
In turn, We warrant that Client’s Credit Card Account information shall be kept secure, and shall be disclosed or used only for the purpose of processing each payment of Invoiced Amounts. Client hereby irrevocably authorizes DIT to disclose Client’s personal data to Client’s Credit Card Account company and to DIT’s Payment Processor for the purpose of processing transactions under the Credit Card Plan.
Client authorizes DIT to disclose Client’s personal information to any collection agency or credit reporting agency or any lawyer or other legal advisor for the purposes of collecting the outstanding money due to DIT by Client under this agreement, in the event that Client fail to make any payment when due under this agreement.
- Client shall indemnify and keep DIT fully indemnified against any loss, damage, liability, cost and expense which We may suffer or incur (including legal costs on an indemnity basis) arising out of or in connection with these terms and conditions. This includes any damages, penalties or cancellation fees or other administrative fees caused as a result of Client’s charging back of any particular Invoiced Amount or other payment due under this agreement.
- The Client agrees to notify DIT within 24 hours of any changes to Client’s Credit Card Account that might affect billing under this agreement. This includes but is in no way limited to a change in the credit card number.
- No forbearance or failure or delay by DIT in exercising any right, power or remedy is to be deemed to be a waiver or partial waiver on DIT’s part; and no waiver by DIT of any breach by Client of the terms and conditions of the Credit Card Plan are to be treated as a waiver of any subsequent breach or of any other provision of these terms and conditions.
- DIT reserves the right to decline at DIT’s sole discretion any application for the Credit Card Plan.
DIT hereby reserves the right to withdraw all Services in the event of any cancellation or termination of the Credit Card Plan and/or Client’s Credit Card Account.
- GENERAL PROVISIONS
- Survival. The termination of expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration.
- Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Any attempt to assign any of the rights, duties or obligations of a party pursuant to this Agreement, without the prior written consent of the other party is void and of no effect.
- Confidentiality. Except for the specific rights granted by this Agreement, neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other shall use the same degree of care to protect the confidentiality of such Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees and Resellers on a need to know basis and that all such employees and Resellers have agreed in writing not to disclose or use Confidential Information. Within fifteen (15) days of the request of the disclosing party, and in its sole discretion, the receiving party shall either return to the disclosing party originals and copies of any Confidential Information and all information, records and materials developed from them by the receiving party, or destroy the same. Either party may only disclose the general nature, but not the specific terms and conditions, of this Agreement without the prior consent of the other party. The disclosure obligations contained herein shall continue for a period of ten (10) years after expiration or termination of this Agreement.
- Privacy and Personal Information. Each party agrees that it will not, without the prior written consent of the other party, disclose or make available any Personal Information (as that term is defined in Canada’s Personal Information Protection and Electronic Documents Act to any other person or entity except for designated employees of the other party who have a need to access the Personal Information in order to fulfil the terms of this Agreement. No employee shall be designated by the either party to access the Personal Information disclosed or transferred by the other party unless such employee agrees to hold such Personal Information in confidence and private and limit the use of such Personal Information to the uses permitted hereby pursuant to and in accordance with a written covenant at least as restrictive as the covenant given by each party contained in this section 7.4.
- Ibid. Each party hereto agrees that the Personal Information provided to it by the other party hereto shall only be used for such purposes as are specified herein or as otherwise permitted in writing by the disclosing party and that the other party shall not sell, transfer or disclose such Personal Information to any other party or use the Personal Information for any other purpose other than the purposes of the Supplier specified in this Agreement. Each other party will follow all rules and regulations of the disclosing party with respect to the use, destruction, retention and security of the Personal Information disclosed by the disclosing party.
- Dispute Resolution. Any dispute regarding the interpretation, compliance with or breach of this Agreement will be negotiated in good faith between the parties commencing upon written notice from one party to the other containing a summary of the dispute (the “dispute notice”). All negotiations will be confidential and inadmissible in any subsequent proceeding without both parties’ written consent. If the dispute is not resolved by negotiation within twenty (20) days following the receipt of the dispute notice, the parties will refer the dispute to a mediator acceptable to both parties for non-binding mediation. The costs of mediation shall be shared equally by the parties. If the dispute is not settled by mediation within fifty (50) days of receipt of the dispute notice, or if a mutually acceptable mediator is not selected within thirty (30) days of receipt of the dispute notice, the dispute shall be settled by binding arbitration as follows. Within sixty (60) days of receipt of the dispute notice, each party shall designate one arbitrator. Within seventy (70) days of receipt of the dispute notice, the two arbitrators so designated shall appoint a third arbitrator mutually acceptable to them, who shall alone hear and determine the dispute. If the two designated arbitrators are unable to agree upon a third arbitrator within seventy (70) days of receipt of the dispute notice, the third arbitrator shall be appointed by a Judge of the Ontario Court as soon as practicable. The arbitration shall be held in accordance with the provisions of the Arbitration Act (Ontario), with all hearings to take place in the Province of Ontario, unless otherwise agreed by the parties. Any judgment, decision or award rendered by such arbitrator shall be final and binding and shall not be the subject of any further court proceeding except in connection with the enforcement of any such award by a court of competent jurisdiction. The costs of arbitration, including legal fees and disbursements of the parties, shall be allocated by the arbitrator in the manner that the arbitrator, in his or her discretion, considers appropriate. This section does not affect the rights of the parties to seek injunctive relief when appropriate to enforce their respective rights hereunder.
- Notice. Any notice or other communication required or permitted to be given pursuant to this Agreement shall be in writing, shall be addressed to the relevant party at the address set out herein for such party, and shall be given by prepaid first‑class mail or by hand‑delivery as hereinafter provided. Any such notice or other communication, if mailed by prepaid first‑class mail at any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business Day after the post‑marked date thereof, or if delivered by hand shall be deemed to have been received at the time it is delivered to the applicable address set out herein for such party to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address shall also be governed by this section. In the event of a general discontinuance of postal service due to strike, lock-out or otherwise, notices or other communications shall be delivered by hand and shall be deemed to have been received in accordance with this section.
- Time of the Essence. Time shall be of the essence in connection with this Agreement.
- Further Assurances. Each of the parties to this Agreement agrees that it will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to the provisions of this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.
- No Limit on Additional Remedies. Nothing contained in this Agreement shall limit any other remedies which any party may have as a result of the default of the other party under this Agreement, and the parties agree that remedies for breach of this Agreement may be in equity by way of injunctive relief or specific performance, as well as for damages and any other relief available, whether in equity or in law.
- Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Each party hereby submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Agreement.
- Enurement. This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and permitted assigns.
- Force Majeure. The Supplier will have no obligation to provide Services to the extent and for the period that the Suppliers is prevented from doing so by reason of force majeure or any cause beyond its reasonable control, including without limitation the inability to use or the failure of any third party telecommunications carrier or other services.
8.14 Whole Agreement. This agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect to such subject matter.
8.15 Right of Amendment. The Supplier may amend or update certain portions of the above Agreement (other than fees payable for a particular Term once Order Form is accepted) at any time in its sole discretion, and without warning. Please review the Agreement periodically for updates. Your continued use of the Services shall constitute your binding acceptance of any such amendments.
You acknowledge that You understand the above terms and conditions and agree to be bound by the same. You also authorize any and all credit card payments outlined in the above section 7 (if applicable).
I hereby accept the above terms and agree to be bound by the same. If the Client is a Corporation, I am authorized to bind the Corporation to this Agreement.