This Agreement (the “Agreement”) is entered into with effect as of the Effective Date (as defined herein) by and between Shop and Shout Ltd., a company incorporated pursuant to the laws of British Columbia, Canada, having its principal office at Suite 420, 75 Granville Street, Vancouver, British Columbia, Canada (the “Company”) and the Customer (as defined herein).
WHEREAS, the parties have agreed that the Company shall grant the Customer a subscription to access the Services (as defined herein), on the terms and conditions set forth herein.
AND WHEREAS, the parties have entered into a Service Plan, to which this Agreement is a schedule to, for the provision of the Services.
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge by both parties, the parties agree as follows:
- The Customer will be the party identified in the accompanying Service Plan (the “Customer”), to which this Agreement is a schedule to.
- The Customer will ensure that the Customer appoints a contact person at all times during the Term (as defined herein) and notified the Company in the event of a change of the contact person.
- EFFECTIVE DATE
- The effective date of this Agreement shall be the date specified in Service Plan (the “Effective Date”).
- SOFTWARE SERVICES
- Subject to the terms and conditions of this Agreement, the Company shall provide the following software services to the Customer:
- Access to the Company’s website at https://creator.co (the “Website”) via the Internet that facilitates the exchange of products and services for social media exposure from the Company’s pre-qualified Creators, including portions of the Website accessed only by registered users;
- The additional features of the Platform requested by the Customer as particularized in the Service Plan (the “Features”, together with the Website, the Platform and the Additional Services, the “Services”); and
- Such Additional Services (as defined herein) and Additional Features (as defined herein) requested by the Customer from time to time.
- GRANT OF RIGHT TO USE BY COMPANY
- Subject to the terms and conditions of this Agreement, the Company hereby grants the Customer, and the Customer hereby accepts, a non-transferrable, non-exclusive worldwide licence and right to access and use the Services for its own purposes during the Subscription Term (as defined herein) or Renewal Term (as defined herein), as applicable. Except only for the limited right to use granted in the preceding sentence, the Company reserves title, ownership and all rights and interests, including intellectual property rights and trade secrets in the Services.
- The Customer will not directly or indirectly resell or grant access to the Services and will not attempt to access, download, copy, decompile, revise, engineer, modify, or derive source code or other elements of the Services, not prepare translations or derivate works based upon, distribute, subscribe, rent, lease, sell or otherwise commercially exploit the Services.
- Subject to the terms and conditions of this Agreement, the Customer may allow its third party contractors to access the Services for the benefit of the Customer, provided, however, the Customer remains responsible for any breach of this Agreement. Any other use of the Services by any other entity is forbidden and a violation of this Agreement including use of the Services by any of the Customer’s corporate affiliates or subsidiaries.
- GRANT OF RIGHT TO USE BY CUSTOMER
- Subject to the terms and conditions of this Agreement, the Customer hereby grants the Company, and the Company hereby accepts, a non-transferrable, non-exclusive worldwide right during the Subscription Term or Renewal Term, as applicable, to copy, store, record, transmit, display, view, print or otherwise use all data, files, documents, audio and visual information, graphics, scripts, programs and trademarks that the Customer creates, installs, uploads to or transfers in or through the Services or provides in the course of using the Services (collectively, the “Customer’s Content”) as necessary to provide the Services to the Customer.
- PROVISION OF SERVICES
- The Company will provide the Services as set forth in this Agreement and Service Plan for the Subscription Term or Renewal Term, as applicable, provided that the Customer has paid and continues to pay the Service Fees (as defined herein) and is not otherwise in breach of this Agreement. The Customer acknowledges that the Company’s ability to provide the Services is dependent on the cooperation of and assistance from the Customer.
- The Company will, from time to time, develop additional features and applications for the Platform (the “Additional Services”), and such Additional Services may be made available to the Customer by the Company, at the Company’s then prevailing rates.
- Provided the Customer has paid and continues to pay the Service Fees and is not otherwise in breach of this Agreement, the Customer may at any time request the Company to grant the Customer access and use of additional features provided by the Company which as of the Effective Date were not requested in the Service Plan (the “Additional Features”). The Additional Features may be requested by the Customer providing a request to the Company and paying any additional Service Fees as applicable. Upon payment of such additional Service Fees, the Company shall activate those requested Additional Features.
- CUSTOMER’S ABILITY TO USE THE SERVICES
- The Customer acknowledges and accepts that the Services can solely be accessed through via the Internet through the most recently updated (for clarity, the then-current and not as of the date of this Agreement) version of (i) Internet Explorer, Google Chrome, Safari, Mozilla Firefox, or (ii) such other internet browser as may be determined from time to time by the Company in its sole and absolute discretion. The Company is in no way responsible for or liable for the provision of such internet browsers.
- The Customer acknowledges and accepts that the Website and Platform are hosted by GoDaddy.com, LLC, or such other third-party service providers that the Company, at its sole and absolute discretion, may designate from time to time. Notwithstanding the foregoing, the Company will provide the Services as outlined in this Agreement.
- FEES AND PAYMENT
- The Customer will pay all fees during the Subscription Term as specified in the Service Plan and all fees associated, or in the event of a Renewal Term, at the Company’s then prevailing rate, with the Additional Services or Additional Features (the “Service Fees”). Except as otherwise provided herein or in the Service Plan (i) Service Fees are non-refundable and based upon the Services and not actual usage and (ii) quantities or the number of Features, Additional Services or Additional Features purchased cannot be decreased during the Subscription Term, or Renewal Term, as applicable, without mutual consent of the parties.
- In the event the Customer requests any Additional Services or Additional Features during the Subscription Term, or Renewal Term as applicable, upon acceptance by the Company to provide such Additional Features or Additional Services, the Customer shall be bound to pay all charges associated with the foregoing and any invoices shall thereafter include such charges.
- The Company will invoice the Customer in accordance with the Service Plan on the first day of each month of the Subscription Term, or Renewal Term if applicable, if on a monthly subscription or on the first day of each year if on an annual subscription, except the first invoice rendered to the Customer which shall be sent on execution of this Agreement.
- Invoiced charges for the Service Fees are due net 30 days from the invoice date, except for the first invoice rendered to the Company which will be due upon execution of this Agreement. The Customer will pay the Service Fees and applicable taxes via the link provided by the Company on each invoice.
- The Customer is responsible throughout the Subscription Term, or Renewal Term if applicable, for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
- It is expressly acknowledged and accepted by the Customer that the Services will not commence until the first invoice for the Service Fee has been paid in full and that in the event of non-payment of a portion of the Service Fees, the Company reserves the right to terminate this Agreement and the Services.
- If any invoiced amount is not received by the Company by the due date, without limiting the Company’s rights and remedies, those outstanding charges will accrue a late fee of $25 per month or 10% interest of any outstanding Service Fees, whichever is greater.
- In addition, the Company may, without limiting its other rights and remedies, with or without notice, suspend or terminate the Customer’s access to the Services.
- The Service Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added sales, use or withholding taxes, assessible by any jurisdiction whatsoever, (collectively, the “Taxes”). The Customer will be responsible for all Taxes associated with the Service Fees and will remit such Taxes concurrently when paying the Service Fees.
- Notwithstanding Section 7.7 above, the Company, at its sole and absolute discretion, may not exercise its rights under Section 7.7 to suspend or terminate the Customer’s access to the Services if the Customer has notified the Company in writing that it disputes the Service Fees and is diligently and in good faith taking all steps required to resolve the dispute.
- PRICE ADJUSTMENTS
- The Service Fee is fixed for each Subscription Term and shall not increase unless Additional Features or Additional Services are requested or the there is an increased demand for social data from the Customer’s use of the Platform. In cases where the Customer has requested Additional Services or Additional Features, the price adjustment shall take effect immediately in accordance with the terms and conditions of this Agreement. In cases where there is an increased demand for social data from the Customer’s use of the Platform, such price adjustment shall take immediate effect following the provision of 30 days prior written notice of the adjustment.
- SUBSCRIPTION TERM AND TERMINATION
- Subject to the terms and conditions of this Agreement, this Agreement will be in effect from the Effective Date and continue in full force and effect until the date specified in the Service Plan (the “Subscription Term”), and unless terminated by the Customer r the Company in accordance with the terms and conditions of this Agreement, this Agreement will automatically renew and continue for the same period of time (the “Renewal Term”) on the same terms and conditions of this Agreement, except for the Service Fee, which shall be the Company’s then prevailing rate for providing the Services. The Company reserves the right at all times to deny or refuse the Renewal Term. Each Renewal Term shall automatically renew and continue for the same period unless the Renewal Term is terminated in accordance with the terms and conditions of this Agreement.
- The Company may terminate this Agreement immediately without notice in the event: (i) the Customer becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, or (ii) the Customer materially breaches this Agreement and such material breach is incapable of cure or is not cured within 10 days of non-breaching party providing notice of default, or (iii) the Company has reasonable grounds to terminate this Agreement in order to comply with applicable laws, or (iv) as otherwise provided for in this Agreement.
- The Customer may terminate this Agreement at any time after the 3 month minimum subscription period by providing the Company with 30 days prior written notice. In such cases, the Customer will not be eligible for any refunds except as otherwise provided for in this Agreement.
- Upon termination of this Agreement, the Company’s obligations under this Agreement and the grant of the right to use and access the Services shall immediately cease. The Customer will pay all amounts as may be owing to the Company.
- Upon termination, the Company will immediately remove all of the Customer’s content from the Platform and destroy such content using reasonable commercial methods, or in the event the Customer provides 30 days prior written notice, return the Customer’s Data, subject to the Customer paying the Company’s then prevailing rate for such service.
- MODIFICATIONS AND UPGRADES
- In order to ensure the ongoing functionality and performance of the Services, the Company may make modifications to the Services and perform maintenance. The Company shall notify the Customer of any planned modifications or maintenance that will restrict or disrupt the Customer’s access to the Services by providing at least 10 days written notice. Notwithstanding the above, there may be circumstances that prevent the Company from providing advance notice to the Customer in order to protect the functionality and performance of the Services, such as, including but not limited to, virus attacks, security issues or unforeseen circumstances.
- SERVICE LEVELS
- Subject to the terms and conditions of this Agreement, the Company will use commercially reasonable efforts to provide the Customer the Services in accordance with the Service Level Terms as set out in Appendix 1, attached hereto and incorporated by way of reference (which may be subject to change from time to time at the Company’s sole discretion). The Service Level Terms sets out the Customer’s sole remedies for availability and quality if the Services including any failure to meet any guarantee set forth therein.
- OBLIGATIONS OF THE CUSTOMER
- The Customer will have the following obligations with respect to the Services provided by the Company:
- comply with all the terms and conditions of this Agreement;
- comply with the Company’s Acceptable Use Policy as set out in Appendix 2, attached hereto and incorporated by way of reference (which may be subject to change from time to time at the Company’s sole discretion;
- comply with all other terms and conditions or ancillary documents, as may be in place from time to time, governing the use of the Website, Platform, Features, Additional Services and Additional Services;
- provide the Company with detailed documentation and explanation, together with underlying data in order for the Company to evaluate and analyze any periods of time when the Customer is unable to access the Services;
- provide reasonable cooperation to the Company with respect to the subject matter of this Agreement;
- only use the Services for its intended purpose and no other.
- COLLECTION AND PROTECTION OF PERSONAL INFORMATION
- The Customer is responsible for compliance with all data privacy, data protection and data security laws applicable to the Customer. The Customer hereby acknowledges and agrees that the Company’s performance of this Agreement may require the Company to process, transmit and/or store the Customer’s data. By using the Services, the Customer hereby acknowledges that the Company may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose to perform its obligations under this Agreement. The Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws.
- INTELLECTUAL PROPERTY
- The Services and all related intellectual property rights are the exclusive property of the Company. All right, title and interest in and to the Services, any modifications, improvements, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Services remain exclusively with the Company, including any modifications or improvements made thereto throughout the Subscription Term, or Renewal Term if applicable, at the suggestion of, or with input from, the Customer. The Services are valuable, proprietary, and unique, and the Customer agrees to be bound by and observe the proprietary nature of the Services. All rights not granted to the Customer in this Agreement are reserved to the Company. No ownership of the Services passes to the Subscriber. The Company may make changes to the Services at any time without notice. Except as otherwise expressly provided, the Company grants no express or implied right under the Company’s patents, copyrights, trademarks, or other intellectual property rights.
- Any Confidential Information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with this Agreement that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential will be protected and held in confidence by the Recipient.
- Confidential Information will be used only for the purposes of this Agreement and related internal administrative purposes. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, affiliates, or agents, including professional advisors, on a “need to know” basis in connection with the Services, who are bound by confidentiality obligations no less stringent than the terms outlined herein prior to any disclosure.
- Confidential Information does not include information which:
- is already known to Recipient at the time of disclosure;
- is or becomes publicly known through no wrongful act or failure of the Recipient;
- is independently developed by Recipient without benefit of Disclosing Party’s Confidential Information; or
- is received from a third party which is not a party to this Agreement.
- Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, but that disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.
- WARRANTIES AND DISCLAIMERS
- EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, FEATURES, PLATFORM, WEBSITE AND OTHER SERVICES MADE AVAILABLE BY THE COMPANY OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER THE COMPANY, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. THE COMPANY, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, WHERE THE DELAY OR FAILURE RESULTS FROM A FORCE MAJEURE EVENT OR SUCH OTHER CAUSE BEYOND THE COMPANY’S CONTROL, INCLUDING WITHOUT LIMITATION, ANY MECHANICAL, ELECTRICAL, COMMUNICATIONS OR THIRD-PARTY SUPPLIER, INCLUDING GODADDY.COM, LLC. BLUESTREAM CANNOT GUARANTEE THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED AND ERROR-FREE, THE DEFECTS WILL BE CORRECTED AND THAT THE SERVICES WILL BE SECURE.
- The Customer agree to indemnify, defend, and hold harmless the Company, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by the Company arising out of any breach of this Agreement by the Customer, its employees, agents and contractors.
- LIMITATION OF LIABILITY
- THE COMPANY, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES SHALL NOT BE LIABLE TO ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR INABILITY TO USE OR ACCESS THE SERVICES OR ANY PART OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO, IN THE EVENT OF ANY FORCE MAJEURE, SUCH AS LOSS OF TELECOMMUNICATIONS, ETC.); (B) THE COST OF PROCUREMENT OF A SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY FOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF THE CUSTOMER’S DATA; (D) ANY PRICE CHANGE, SUSPENSION OR TERMINATION OF THE SERVICES, WHETHER IN WHOLE OR IN PART; (E) ANY LOSS OF THE CUSTOMER’S DATA; (F) ANY MODIFICATION TO A FEATURE OR THE SERVICES AS A WHOLE; OR (G) ANY OTHER MATTER RELATING TO THE CUSTOMER’S USE OF THE SERVICES. IN THE EVENT THIS PROVISION IS HELD TO BE UNENFORCEABLE, IN WHOLE OR IN PART, BY A COURT OF COMPETENT JURISDICTION, THE CUSTOMER AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY ON THE PART OF THE COMPANY UNDER THIS AGREEMENT (INCLUDING FOR BREACH OF ANY PROVISION HEREOF, FUNDAMENTAL BREACH OR ANY OTHER BREACH GIVING RISE TO LIABILITY OR ARISING OUR OF OR RELATED TO THIS AGREEMENT OR THE SERVICES IN ANY OTHER WAY,), FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, TOR OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO THE CUSTOMER’S ACTUAL DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNT PAID BY THE CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE OF THE CLAIM.
- The Company may upon execution of this Agreement, display the Customer’s name and logo on the Company’s website and in the Company’s customer lists, subject to the Customer’s compliance with the Customer’s logo usage requirements as provided by the Customer. In addition, the Customer will provide a reasonable number of reference calls as requested by the Customer, subject to reasonable advance notice provided by the Customer.
- FORCE MAJEURE
- Neither party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labour conditions, earthquakes, acts of terrorism or war, Internet or telecommunications failure or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party. In the event that a force majeure event affecting a party continues for a period of longer than thirty (30) days, the Company may, at its option, be entitled to terminate this Agreement as of the date specified in written notice to the Customer to that effect.
- ENTIRE AGREEMENT
- This Agreement, including the Service Plan, all Schedules and Appendices and any reference to other documents contained herein, contain the entire agreement between the Company and the Customer regarding the Services provided by the Company and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted and no other terms or conditions issued by either party including without limitation any terms set forth in a purchase order, shall be binding on the parties.
- This Agreement shall bind and enure to the benefit of the Company and Customer and their respective successors and permitted assigns. Customer may not assign this Agreement to a third party, without the Company’s prior written consent (not to be unreasonably withheld).
- GOVERNING LAW
- Disputes arising out of or relating to this Agreement shall be governed by and interpreted in accordance with the laws of the Province of British Columbia and Canada, without reference to conflict of laws.
- DISPUTE RESOLUTION
- In the event of a claim or dispute arising out of or relating to this Agreement, the parties shall first attempt in good faith to resolve the dispute amicably through negotiation.
- In the event that negotiations are unsuccessful, any claim or dispute arising out of or relating to this Agreement shall be settled exclusively by arbitration in accordance with the Commercial Arbitration Act (British Columbia) through a single arbitrator. The arbitration shall take place in Vancouver, British Columbia, Canada, in accordance with the BCICAC rules then in effect, and judgment upon any award rendered in such arbitration will be final and binding and may be entered in any court having jurisdiction thereof, and there will be no appeal of any such award or determination on any grounds, except as permitted under the Arbitration Act The fees of the arbitrator shall be paid equally by those Parties party to the arbitration, unless otherwise decided by the arbitrator. The prevailing party shall be entitled to reimbursement for costs and reasonable attorney’s fees.
- RELATIONSHIP OF THE PARTIES
- The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- LIMITATION ON ACTIONS
27.1 No action, regardless of form, arising from this Agreement may be brought by either party more than two years after the cause of action has accrued, except that an action for non-payment may be brought at any time.
- The parties agree that notices under this Agreement will be in writing and be delivered by personal delivery, facsimile, email or by overnight or express courier service, addressed as set out below or in such other manner as each party may advise the other in accordance with this Section.
- No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
- If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
- This Agreement may be executed in counterparts, any one of which may be a fax, PDF or other form of electronic copy, and each of which shall be an original instrument, but all of which shall constitute one and the same agreement.
APPENDIX 1 – SERVICE LEVEL TERMS (AS OF JAN 18, 2019)
“System Uptime” means the total amount of time during any calendar month (24 hours a day, 7 days a w eek), measured in minutes, during which the Customer is not impacted by issues that the Company categorizes as “Emergency”. Any issues that are categorized as “Emergency” would be counted as Unscheduled Downtime and would be deducted from the total monthly uptime.
“Scheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which the Customer is unable to access the features and functions system due to planned system maintenance performed by the Company as set forth below.
“Target Response Time” means the time elapsing from receipt of the request to the Company initiating action to resolve the issue. The time to arrive to a solution may be longer. The Customer will be informed of the status of the Customer’s request within the response times listed above.
“Unscheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which time Subscriber is impacted by issues that the Company categorizes as “Emergency”.
“Working Hours” means a time within the Standard Support Hours: from XXXXXXXXXXXXXXXXXXXXXXXX to XXXXXXXXXXXXXXXXXXXXXXXXXXXX (Technical Support is not available on Christmas Day, New Year’s Day and hours may be reduced on statutory holidays).
The Company will respond to error correction requests according to the urgency of the request as specified below:
|Category||Target Response Time||Category Guidance|
|Emergency||2 Working Hours||An error that renders the whole of the Services or a substantial part of it, inoperative, and which is not clearly due to the Customer’s server/software setup.|
|High Priority||4 Working Hours||An error that results in partial or intermittent failure of the Services.|
|Medium Priority||1 Working Day||Errors that do not affect critical parts of the Services.|
|Low Priority||2 Working Days||Other inquiries and minor errors/error messages.|
Category can be selected by the Customer’s designated contact upon posting the request. Category may be changed by the Company’s personnel if request is not in accordance with specification in the above table, or if the category is to be increased.
Error reports should be accompanied by a detailed description of events immediately preceding the occurrence of the error, and should, if possible, attach a copy of the error message. Error correction shall be limited to errors occurring in the course of normal use of the Services. Error correction may be done by means of temporary measures (“patching”). The Company is not responsible for errors or malfunctions in the Services caused in whole or in significant part by (a) the Customer’s or its employees’ negligence; (b) accidents and other events for which the Company is not responsible; or (c) the failure of the Customer’s internal systems to meet the minimum requirements established by the Company from time to time.
The Company guarantees the system will have a minimum 99% System Uptime, excluding Scheduled Downtime and including any Unscheduled Downtime. In the event System Uptime is less than 99% during any calendar month during the Subscription Term, or Renewal Term if applicable, of this Agreement and, within 10 days of the end such calendar month, the Customer has notified the Company of same and requested a credit in accordance with the provisions herein, the Customer may be entitled to credits against its subsequent payment obligations or a refund equal to a percent of the Service Fees paid by the Customer during such calendar month, according to the following table:
|System Availability||Credit Amount|
|98.99 – 98.00||8% of Monthly Service Fees|
|97.99 – 97.00||12% of Monthly Service Fees|
|96.99 – 96.00||18% of Monthly Service Fees|
|<95.99||Maximum of 25% of Monthly Service Fees|
- Policy Introduction
This Acceptable Use Policy (the “Policy”) descries the uses of the Company’s Services which are contrary to the Company’s objectives and which are, therefore prohibited. This Policy applies to all Customers who access and use the Services. This Policy has been published by the Company as part of its overall effort to: provide high quality, reliable and stable services to all of its customers; protect the privacy and security of all its customers, systems and networks; encourage compliance with applicable laws and encourage responsible use of the Company’s Services. The Company therefore reserves the right, in its sole discretion, to determine whether the Customer’s use of the Services is a violation of this Policy, and if such a violation occurs, the Company will take such action as it deems appropriate.
- Prohibited Uses
The Customer is responsible for the Customer’s conduct, and communications with others while using the Services. The Customer is responsible for any breaches of this Policy. It is impossible to provide an exhaustive list of exactly what constituted acceptable and prohibited uses of the Services. In general, the Company will not tolerate any use of the Services which damages or is likely to damage the Company’s reputation, the availability or integrity of the Services, or which causes the Company or threatens to cause the Company to incur any legal, tax or regulatory liability. Without limitation:
- The Customer may not use the Services to commit or engage in or promote illegal, abusive or irresponsible behaviour including, including without limitation:
- Use which in any way breaches any applicable local, national or international law, code or regulation, including date protection and privacy laws and laws relating to unsolicited commercial electronic messages;
- Use which is any way unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- Use of an internet account or computer without the owner’s authorization;
- Use which in any way introduces intentionally, knowingly or recklessly any virus or other contaminating code;
- Use in any way to collect or use information, including email address or other identifiers, by deceit (for example phishing, internet scamming and password robbery);
- Use which in any way intentionally, knowingly or recklessly leads to the publication of a person’s sensitive identifying information against their wishes; and
- Use which in any way could lead to physical damage, death, mental health, or personal injury.
- The Customer may not use the Services to provide any person under the age of majority in their respective jurisdiction with access to the Services.
- The Customer may not use the Services for the purposes of building competitive products or services or for any other competitive purposes.
- Unless authorized by the Company, the Customer will not probe, scan, or test the vulnerability or security of the Services.
- The Customer may not use the Services which the Company, in its sole discretion, believe is unlawful, harmful, threatening, obscene, harassing or which is otherwise malicious, fraudulent or morally unacceptable, including without limitation:
- Use which in any way facilitates illegal activity; use which in any way depicts sexually explicit images;
- Use which in any way exploits minors;
- Use which in any way is excessively violent, incites or threatens violence, or contains harassing content or hate speech;
- Use which in any way is discriminatory, including discrimination based on race, ethnicity, gender, colour, age, religious belief, sexual orientation or disability;
- Use which is in any way unfair or deceptive under the consumer protection laws of any applicable jurisdiction; and
- Use which in any way is defamatory or violates a person\s privacy.
- The Customer may not use the Services which in any way infringes any copyright, patent, trademarks, design or other intellectual property right of others.
- Changes to this policy
The Company may at any time, from time to time, revise and update this Policy at the Company’s sole discretion. All changes are effective immediately when the Company posts them on its website and will apply to all access to and use of the Services thereafter. The Customer’s continued use of the Services following the positing of revised Policy will be deemed by the Company as the Customer continued acceptance and agreement to the changes.