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Web Hosting Agreement

DIT Web Solutions Inc.

Web Hosting Agreement

 

NOTICE TO USER. This is a legal contract between the company whose information is included in the Order Form ("You" or “Client", used interchangeably) and Digital Ink Technologies Inc. (“We”, “Us” or “DIT”) 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 DIT, in order to carry out its 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, Internet Protocol (IP) addresses and internet traffic services (“Storage and Bandwidth Services”) provided by the Head Supplier to third parties;

AND WHEREAS the Client has developed a website and other electronic media and content in connection with the operation of its business;

            AND WHEREAS the parties wish to set out the terms and conditions upon which DIT will provide to the Client website hosting and other related services;

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, the sum of one dollar paid by each party to the other, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

1.                 INTERPRETATION

1.1              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 Client to DIT for the purposes of DIT performing the Services, including without limitation the Client’s Website;

“Client’s Website” means the series of interconnected web pages intended to be accessible by Internet users with a web browser provided by the Client and hosted by DIT in accordance with this Agreement.

“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 Client outlining the Services purchased by the Client, the cost of these Services, as well as all relevant information relating to the Client.

“Services” has the meaning set out for such term in section 2.1;

“SPAM” has the meaning set out for such term in section 3.2(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.

1.2              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.

1.3              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.

1.4              Currency.  In this Agreement, all amounts are stated and payable in Canadian currency.

1.5              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.

1.6              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.

1.7              Modification and Waiver.  This Agreement may not be modified unless agreed to in writing by both the Client and DIT.  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.

1.8              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.

2.                 SERVICES TO BE PROVIDED

2.1              Website Hosting Services.  Subject to the terms and conditions contained in this Agreement, DIT will use commercially reasonable efforts to host the Client’s Website and other Client Content for access by Internet users (the “Services”). 

2.2              Pricing for Additional Services. DIT will provide certain services other than the Services, or alternatively, will provide additional monthly bandwidth transfer or storage space (when possible) (“Additional Services”) to the Client in accordance with the then current service, which can be found http://www.ditcanada.net/servicetable (“Service Table”).  DIT reserves the right to amend pricing for Additional Services from time to time by amendment to the Service Table.

2.3              Manner of Provision of Services.  The Services 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.

2.4              Malicious Script.  DIT reserves the right, in its sole discretion, at any time, to decline to host Malicious Script.

2.5              Allocation of Server Space and Bandwidth Transfer.  DIT agrees to allocate the amount of server space on its server and amount of monthly bandwidth transfer ordered by the Client on the Order Form to the Client for the Services.

2.6              Right of Refusal. Supplier DIT has the right to refuse to host any particular Client Content or to accept any particular Client's Content, or to remove any Client Content, in its sole and absolute discretion and for any reason. DITSupplier is expected to give notice to Client once it has removed any Client Content, but shall not be required to give notice in advance of exercising its rights under this section 2.6.

3.                 CLIENT RESPONSIBILITIES

3.1              Format of Media.  The Client is responsible for the posting of its Website and all Client Content via file transfer protocol, commonly known as “FTP”, or may provide DIT with a copy of its Website and Client Content in HTML format ready to be placed on DIT’s server, without modification or validation (for which extra charges will apply), on portable media or by electronic message.

3.2              Compliance with Laws.  The Client agrees to adhere to all local, provincial, federal and international laws in posting its Website and Client Content to DIT’s server and in using DIT to provide the Services, including but not limited to those laws regarding:

(a)                court ordered publication bans;

(b)               restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting or exposing, obscene or threatening material, child pornography, or hate propaganda (and the Client understands that these situations could generate criminal liability);

(c)                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;

(d)               restrictions on the distribution and dissemination of unsolicited commercial electronic messages (“SPAM”),

(e)                provincial, federal and international securities laws;

(f)                fraud or misrepresentation;

(g)               gambling laws;

(h)               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; and

(i)                 export and import restrictions.

3.3              Responsibility for Website Content.  The Client agrees to be solely responsible for all Client Content provided to DIT or posted on DIT’s server and for the design of Client’s Website and the implications of the hosting of the Client’s Website and Client Content and any and all items, statements or other content transmitted, posted, received or created through the Client’s Website, even if transmitted, posted, received or created by someone else.

3.3.1    Backups. DIT's hosting accounts include a regular backup service, however these backups are for DIT's administrative purposes only, and are in NO WAY GUARANTEED! Although DIT agrees that it will back up content on the server from time to time, DIT is not required to do so, unless specifically agreed upon in the service agreement at the time of sign up. In the event of any loss or system failure, DIT is not expected to restore any Client Content within any specific period of time, and makes no warranty as to the completeness of any backups it may take. CLIENT MUST REGULARLY BACKUP ITS OWN CLIENT CONTENT. DIT does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly (even if the malfunction was due to negligence on DIT’s part). DIT will do its best to ensure complete and accurate backups, but assume no responsibility for this duty.

 

3.4              Compliance with Rules and Regulations.  The Client agrees to comply with all of DIT’s Internet policies, Acceptable Use guidelines, rules and regulations as they may be established by DIT, 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. 

3.5              Specific Requirements. The Client agrees to not use the Services for any of the following activities (this list may change from time to time, in accordance with the ongoing needs of DIT or the Head Supplier):

a                     Distribution of any tools designed for compromising security;

b                    Interconnecting with any other Clients or other users of the services located at the premises of the Head Supplier;

c                     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;

d                    Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;

e                     Deliberate attempts to overload a system and broadcast attacks

f                     Forging of any TCP-IP packet header or any part of the header information in an email or newsgroup posting;

g                    Intentionally or negligently transmitting files containing a computer virus or corrupted data;

h                    Sending unsolicited email messages, commercial advertising and informational announcements;

i                      Using its mail server to relay another site's mail server without express written consent from that site;

j                      Sending out unsolicited email that promotes or in any way points to a location inside the Head Supplier's network

k                    Distribution of tools designed to aid in the distribution or development of unsolicited bulk email;

l                      Any other conduct that results in DIT, the Client or the Head Supplier being placed on any recognized SPAM abuse list; or

m                  Any other conduct that results in DIT being denied service or otherwise cited by the Head Supplier.

3.6    Representations and Warranties.   The Client hereby represents and warrants to DIT, acknowledges that DIT is relying on such representations and warranties, and acknowledges that such representations and warranties will survive the termination or expiry of this Agreement:

(a)                that the Client has the right to enter into this Agreement and allow DIT to perform the Services; and

(b)               that the Client is the lawful owner or duly authorized licensee of all Client Content and has the legal authority to use the Client Content in the manner required for DIT to provide the Services.

3.7                                                               Indemnity. Client agrees to indemnify and hold harmless DIT and the Head Supplier for any fines, liabilities, costs and expenses, including legal fees, suffered by DIT or Head Supplier relating to or arising from any of the following:

(a)                                        Any act or omission by Client that breaches this Agreement;

(b)                                       Any claim made by any third party against Supplier as a result of the conduct of the Client;

(c)                                       Any claim made by Client against DIT 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 DIT or the Head Supplier.

(d)                                       The Client’s Website and all Client Content;

(e)                                       The infringement, whether intention or unintentional, voluntary or involuntary, of any intellectual property or other similar rights of any third party resulting from or arising in connection with the provision by DIT of the Services; or

(f)                                        Any breach by the Client of any of the provisions of this Agreement including without limitation the restrictions described in section 3.2 of this Agreement.

(g)                                       Any losses suffered by the Client as a result of the Client’s failure to backup Client Content

3.8              Grant of License.  The Client hereby grants to DIT and DIT accepts a non-exclusive, royalty-free, worldwide license to use the Client’s Web Site and Client Content, as reasonably necessary or desirable in order for DIT to provide the Services and any other obligations of DIT under this Agreement or at law.

4.                 FEES

4.1              Payment of Fees.  In consideration of DIT providing the Services, the Client will pay to DIT all fees due in accordance with the Services ordered by the Client, as outlined in the Order Form, plus all applicable taxes.

4.1.2        In consideration of DIT providing Additional Services as ordered by the Client, the Client will pay to DIT the amounts outlined in the Service Table at the time of order (currently found at http://www.ditcanada.net/servicetable). DIT shall not begin to provide Additional Services until DIT receives payment in full for such Additional Services.

4.1.3        DIT reserves the right to require up front payment for any Services or Additional Services. DIT may also choose to bill for Services or Additional Services on a monthly, quarterly or annual basis.

4.1.4        If any Services are not prepaid by the Client at the outset of the Term or Renewal Term, DIT shall issue a monthly invoice, outlining all fees due for Services to be provided in the upcoming month, as well as any Additional Services ordered by the Client to be provided in the future. All fees outlined in any invoice are due and payable ten days from the date the invoice is issued (the “Due Date”).

4.1.5        Any relevant fee calculation period shall start as of the date that DIT begins to provide Services.  

4.2              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.

4.3            Unused Services.  Unused Services may not be transferred or assigned by the Client and prepaid fees or deposits are totally non-refundable and not subject to setoff for any reason whatsoever.

5.                 TERM AND TERMINATION

5.1              TermThis Agreement shall be in force on the date that the Client submits payment of all fees outlined in the Order Form (the “Effective Date”), and shall be in force from the Effective Date until the last day of the time period chosen by the Client 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 8.1) 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.

5.2              Automatic Renewal.  Provided the Client 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 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 and shall end as of the last day of the Selected Period (which shall begin to run as of the first day of the Renewal Term). In any Renewal Term, DIT 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 Client to DIT for the Services will be at DIT’s fees as of the first day of the Renewal Term.  This Agreement will not renew if either party has delivered to the other, at least 30 days prior to the end of a Term, written notice of its intent not to renew this Agreement.

5.3              Termination.  The Client has no right to terminate this Agreement during the Term unless he, she or it pays the damages payable under section 5.4 below. Without limiting any other rights or remedies available to DIT, at law or in equity, DIT has the right to terminate this Agreement immediately and without notice to the Client and without any compensation being due to the Client, if:

(a)                the Client 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 Client;

(b)               the Client 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 Client 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 Client’s assets;

(c)                the Client ceases to carry on its business; or

(d)               DIT has not received any payment when due under this Agreement.

(e)                DIT 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 Client.

5.4              Effect of TerminationIn the event of termination of this Agreement for any reason whatsoever prior to the end of the then current Term (other than termination under section 5.3(e)), without limiting any other rights or remedies which may be available to DIT in law or in equity, the Client will immediately pay to DIT as liquidated damages and not as a penalty all amounts due or payable under this Agreement including without limitation all amounts which would have been payable by the Client over the remainder of the then current Term if DIT continued to provide Services for the remainder of the current Term.

5.5              Right to Suspend Service. In the event that the Client fails to pay any invoice by the Due Date, DIT reserves the right to suspend the provision of Services to the Client without notice and to maintain said suspension until payment of said invoice is made in full. Further, DIT may require that the Client provides a credit card or other recurring pre-authorized payment method prior to re-activating the Services. No action taken by DIT in accordance with this section 5.5 shall be deemed to be a termination, nor shall it limit any other rights that DIT may have under this Agreement or otherwise at law.

6.                 LIMITATION ON LIABILITY

6.1              No representation or Warranty.  The Services (and any Additional Services provided by Supplier, whether or not those Services are outlined in the Service Table discussed above) are not guaranteed and are provided on an “as is” basis and DIT 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 DIT makes no warranty, implicit or otherwise, as to the reliability of the Services.

6.2              No Liability.  In no event will DIT, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim from either the Client, or any agent or affiliate or successor or assign of the Client, for:

(a)                punitive, exemplary or aggravated damages;

(b)               damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Client Website, Client Content or other client materials or facilities (including its computer resources, Website and any stored data);

(c)                indirect, consequential or special damages of any kind;

(d)               contribution, indemnity or set-off in respect of any claims against the Client by any third party;

(e)                any damages whatsoever related to third party products, client materials or any goods or services not developed or provided by DIT; or

(f)                any damages whatsoever relating to interruption, delays, errors or omissions.

6.3              Limitation on Liability.  Without limiting the generality of either section 6.1 or 6.2, the maximum total liability of DIT for any claim whatsoever, under any circumstances, including claims for breach of contract, tort, negligence or otherwise, and the Client's sole remedy, will be strictly limited to an award for direct, provable damages not to exceed the amount of fees paid to DIT hereunder during the then current Term. 

6.4              Limitation on Time.  No action arising or relating to this Agreement or DIT’s obligations hereunder, regardless of form, may be brought by the Client 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 Client.

6.5              Insurance. The Client shall carry whatever insurance policies are required or advisable in order to carry out its business, and in order to satisfy any claims against it by DIT in accordance section 3.7. DIT reserves the right to require evidence of suitable insurance, or to require additional insurance procured by the Client in light of the nature of its Client Content, in DIT’s exclusive discretion. Any failure by the Client to comply with any insurance requests by DIT within 30 days of the date of the request shall have committed a material violation of this agreement.  

7.                  SECTION 7 CREDIT CARD PAYMENT PLAN [GLOBAL]

7.1                          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:

    1. For Services ordered for a period of time (whether quarterly or annually, depending on the option selected by the Client (the “ Recurring Invoice”) will be issued for payment of those services (the “Invoiced Amount”).  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”).

 

    1. You hereby irrevocably authorize DIT and/or Payment Processor, to charge your Credit Card Account for the Invoiced Amount at any time upon issuance of an Invoice.

 

    1. Upon Our acceptance of your Application, and in exchange for your covenants contained in this agreement, We may provide the Client with our Services on credit without any payments in advance.

 

    1. 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.

 

    1. The terms and conditions contained herein relate to your purchase of Services from DIT, and take precedence over the terms and conditions of any other agreements that the Client have with any others including your Credit Card Account company.

 

    1. The Client warrants to DIT that the Client has not entered into any other agreement, either with Client’s Credit Card Account company or otherwise, that interferes with Client’s 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 the Client has with DIT or with any other party, the terms and conditions contained herein shall prevail with regard to the Credit Card Plan.

 

 

    1. The Client agrees 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 Client to Client’s 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.

 

7.2              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 section  5.4 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.

 

7.3              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 AmountsClient 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.

i.                    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.

ii.                  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.

iii.                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.

iv.                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.

 

DEFINITIONS

 

    1. “Payment Processor” means any third party payment processor employed by DIT to process Credit Card Account payments.
    2. “Invoiced Amount” means the amount owing as shown on invoices.
    3. “Credit Card Account” means the credit account associated with the credit card whose information Client provides to DIT on the Order Form.

8.                  GENERAL PROVISIONS

8.1       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.

8.2       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.

8.3       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 agents on a need to know basis and that all such employees and agents 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.

8.4 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 14.1.2.

 

8.5 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 DIT 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.

 

8.6 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.

8.7 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.

8.8       Time of the Essence.  Time shall be of the essence in connection with this Agreement.

8.9       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.

8.10     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.

8.11     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.

8.12     Enurement.  This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and permitted assigns.

8.13     Force Majeure.  DIT will have no obligation to provide Services to the extent and for the period that DITs 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 supersede 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. DIT reserves the right to amend or update certain portions of the above Agreement (other than those terms relating to agreed fees for the current Term for Services) 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. 

8.16     Accuracy of Information. The Order Form requires that You provide certain information in order to use the Services.  The Client agrees to provide accurate, complete and current information about yourself as required by the registration process and to promptly update such information as necessary to ensure that it is accurate, complete and current.  This information will be handled in accordance with our Privacy Policy found at http://www.ditcanada.net/legal/privacy. You are responsible for maintaining the confidentiality of any passwords or other account identifiers which You choose or which are assigned to You as a result of any registration.  You are responsible for all activities that occur under such password or account.  DIT is not responsible for any unauthorized use of your account.  If You believe there has been unauthorized use of your account, You must notify DIT immediately.  DIT will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section.

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.