Cloud Computing Terms and Conditions

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : January 14, 2015
Version: 2.1

 

1.     Definitions:

All capitalized terms not defined elsewhere in this Agreement have the following meanings:

1.1.      “Applications” means the software licensed directly by Customer and hosted on Company’s servers.

1.2.      “Company Property” has the meaning set out in Section 3.3.

1.3.      “Customer Data” means anything that Customer or Users upload or enter through the Services in any form including text, graphics (e.g., photographs, illustrations, images, and logos), programs, code, video recordings, audio recordings and personally identifiable information.

1.4.      “Customer Equipment” means any hardware, software other property and any connections or interfaces thereto that are owned or controlled by Customer and housed on Company premises.

1.5.      “Documentation” means Company’s generally available standard user’s manual or release notes pertaining to the Services. Documentation does not include sales and/or marketing materials.

1.6.      “Effective Date” means the later of (a) the effective date for the start of Services as set out in the relevant Order Form; or (b) when the Production Environment is made available to Customer and the first recurring Monthly Fee is billed (aside from first months Services).

1.7.      “Fees” means all charges that may be invoiced under this Agreement, including Monthly Fees and One-Time Fees.

1.8.      “Intellectual Property Rights” means proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including copyright, moral rights, trade secrets, know-how, trademarks, service marks, trade names, patents, data model, invention, drawing, plan, specification, process or similar property.

1.9.      “Month” means a calendar month.

1.10.   “Monthly Fees” means the monthly recurring fees.

1.11.   “One-Time Fees” means the set-up and implementation fees, or any other fees for consulting or other non-recurring Services.

1.12.   “Order Form” means any document for the purchase of Services hereunder that is signed or electronically agreed to by Company and Customer.

1.13.   “Pre-Production Environment” means any environment other than the Production Environment.

1.14.   “Production Environment” means an environment that is used, in whole or in part, for production / live purposes; i.e., is not used for development, testing or staging of the Services.

1.15.   “Services” means all cloud computing, hosting, consulting and related services, including Documentation and Company Property, to be provided by Company to Customer in accordance with this Agreement.

1.16.   “Software” means Company’s and its vendors’ proprietary software used to provide the Services, excluding the Applications.

1.17.   “User” means any person who accesses or uses the Services.

1.18.   “Vendor” means a third party provider of software, products or services to Company.

2.      Services:

2.1.      Company will provide to Customer the Services as described in the Appendices and set out in an Order Form under the terms and conditions of this Agreement.  Upon the Signature Date, Company will provision the Services, and upon the Effective Date, Company shall allow Customer to use the Services in a non-exclusive, non-transferable, time-limited (revoked upon termination) manner by the specified number of Users.

2.2.      Service Performance, Availability and Credits:  Service Availability and Service level credits are defined in the WatServ Service Level Agreement (“SLA”) as set out in Appendix A. Subject to Appendix A, the Company’s Service availability objective is 99.99% uptime for power, internet and infrastructure for Production Environment, and 99.5% uptime for the Applications when used in the Production Environment.

2.3.      Customer Responsibilities: Customer is responsible for making necessary arrangements with its Internet Service Provider, telephone carriers, private bandwidth providers, and local equipment providers so that the Customer has stable, reliable and adequate connectivity and local resources as necessary for expected response time and availability. Customer agrees that Company’s provision of the Services may depend on the completion of certain Customer tasks or adherence to Customer schedules outside of Company’s control; consequently the schedule for completion of the Services or any portion thereof may require adjustments or changes in the event such Customer tasks or schedules change or are modified or are not completed as anticipated, and Customer is responsible for the impact of such delays.

2.4.      Transition Assistance.  At the end of the Term, Customer may request, and Company may agree to provide, transition assistance Services.  The Company will provide an estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.  Such Services may consist of the following:

2.4.1.    Development of a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;

2.4.2.    Performance of consulting services as requested to assist in implementing the transition plan; and

2.4.3.    Provision of other technical assistance as requested by the Customer.

3.      Proprietary Rights:

3.1.      If any Intellectual Property Rights owned by a party are used or provided in connection with the Services, ownership of such Intellectual Property Rights shall remain the originator’s property.

3.2.      Customer warrants that it owns and retains all right, title and interest to, or has appropriate possessory rights in Customer Data and holds all necessary rights and permissions for its use of the Applications and for their hosting by Company for purposes of providing the Services.  Company makes no claim of license, title or ownership to or in Customer Data or Applications.

3.3.      Company has (or may in the course of performing hereunder develop) tools, ideas, concepts, processes, methodologies, software, and know-how (“Company Property”), some of which Company may use or grant Customer the right to use during the Term. Company shall retain exclusive ownership of all such Company Property and shall be entitled to provide services to other parties and use Company Property in connection with performance such services for other parties at any time.

3.4.      Customer may not (a) exceed the usage limits stated in the applicable Order Form; (b) sell, rent or lease the Services in any way, or transfer to any other person any of its rights hereunder; or (c) modify any of the Services or Company Property save as otherwise expressly permitted by Company, nor adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services or Company Property.

4.      Add/Change/Delete:

4.1.      Customer has the ability to add/change/delete (“ACD”) Users’ access to Services during the Term.  The ACD may be completed by the Customer through the Company-provided self-service portal or a Customer-initiated support request, as may be agreed by Customer and Company. Only Customer-designated support contacts will have authority to initiate or request these changes.

4.2.      The Customer can increase or decrease the amount of Users in Active Directory and/or increase or decrease Services by User, as long as the remaining Users total does not fall below the minimum User threshold as identified in this Agreement. Users that have had access to the Services for only a partial month will be charged for a full month’s Service which may include adjustments on subsequent invoices.

4.3.      Company will run a monthly report in Customer’s environments for the purpose of issuing invoices in accordance with Sections 8 and 9, and for ensuring compliance by Customer with the terms of this Agreement.

5.      Customer Support:

Customer’s Applications support will be provided by a certified Microsoft Dynamics Value-Added reseller.  Microsoft roles and responsibilities include support for application functionality, application configuration, application customizations, application integrations, application repairs and application updates/upgrades.   Operational services and technical support services for this Agreement will be provided by the Company as detailed in Appendix B – Company Support and Response Time Policies.

6.     Customer Data:

6.1.      As between Company and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Company as part of its standard Services makes backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with Company’s standard business processes.

6.2.      Company shall maintain commercially reasonable industry standard administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data as required by applicable data protection laws or regulations.

6.3.      Customer acknowledges that Company has no control over, and accepts no responsibility for the contents of Customer Data. Company shall make no effort nor have any obligation to monitor or validate any Customer Data for content, correctness, usability or for any other purpose.

6.4.      As a condition of Customer’s use of the Services, Customer warrants to Company that the Services shall not be used for any purpose or in any manner that is unlawful or prohibited by this Agreement including the Acceptable Use Policy (Appendix C).  In addition, Customer shall not use the Services in any manner which may damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.  Such unlawful or prohibited use will be a material breach of this Agreement, and Company reserves the right to disable the mode of communication, remove Customer Data, or suspend Customer’s and/or its Users’ access to the Services, all without liability to Customer.

6.5.      Customer must defend, indemnify and hold harmless Company, its affiliates, directors, and employees from any damages, losses, costs, fees, fines, claims and expenses arising out of any third party suit, claim or other legal action (including any governmental investigations, complaints and actions) in connection with the Customer Data, as well as any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data or use of the Company Services.

7.      Confidentiality:

7.1.      “Confidential Information” means information in any form provided to one party about the other party’s or its affiliates’ products or services, business, operations, finances, plans, designs, affairs, systems, installations, clients or Vendors, and other sensitive information that the discloser would reasonably expect to be kept confidential.  Confidential Information may also include Customer Data.  Confidential Information does not include information which is not not otherwise protected under law and (a) is required to be disclosed pursuant to court or regulatory order, provided that, where feasible, the owner of the Confidential Information is given a reasonable chance to limit the disclosure; (b) was already rightfully in its possession before the commencement of negotiations that led to this Agreement; (c) is learned from a third party under no apparent duty of confidentiality; or (d) is or becomes part of the public domain for reasons other than as a result of a breach of this Agreement.

7.2.      Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care its protection) and to make Confidential Information available to authorized persons only on a “need to know” basis.  Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence.

8.      Monthly Fees and One-Time Fees:

Customer will pay the Fees as set out in an invoice issued in accordance with an Order Form, as follows:

8.1.      The Monthly Fee will not decrease below the original amount as defined and agreed to in the Order Form (the “Base Fee”), but can be increased (a) for the addition of Users and/or additional Services not listed in the Order Form; or (b) due to requirements for additions to the environment resources.  Such additions will be billed over and above the Base Fee.

8.2.      The Fees will remain in effect for the duration of the Term subject to the following:

8.2.1.   In order to reflect cost increases for power, software, labor and other components of the Services, an Economic Change Adjustment (“ECA”) will be applied to the Fees on January 1 of every year.  The ECA increase will be the greater of (a) 3%; or (b) the Consumer Price Index published at http://www.bls.gov/news.release/cpi.nr0.htm.  Agreements that have been in place for less than one (1) year will have the ECA pro-rated based on the number of Months since the Effective Date.

8.2.2.   Microsoft and other Vendors have the right to adjust Service Provider Licensing Agreement (“SPLA“) prices for the Software. Customer agrees that material changes to these prices will be passed along to and accepted by Customer from time to time.

8.3.      Customer may request and approve work to be performed by Company that is outside of the scope of this Agreement. This work will be charged at the then-current technical services labor rate and is not considered a portion of the Base Fee or Monthly Fees.

9.      Payment Terms; Taxes:

Payment terms for this Agreement are as follows:

9.1.      Payment for one-time Services and fees for the first Month of Services are due within fifteen (15) days from the Signature Date as a deposit to commence deployment activites; any other invoices shall be due and payable within thirty (30) days from the invoice date.

9.2.      Services for all Agreements under $1,000 per month will be invoiced on a quarterly basis in advance on the first day of the first Month of the relevant quarter for Services to be delivered during that quarter. For all Agreements over $1,000 per Month, Services will be invoiced on monthly basis in advance on the first day of each Month for Services to be delivered during that Month.

9.3.      Invoices are generated on the first day of the month of each billing period for Services to be delivered that billing period (ie. In advance).  Invoices may contain adjustments for prior periods for additions or changes to services during that prior period as well as usage charges.

9.4.      All dollar amounts in the Agreement are United States currency unless otherwise expressly agreed between the parties in an Order Form.

9.5.      Overdue amounts that are not subject to a good faith dispute shall accrue interest at the rate of 1.5% per month (18% per annum), or at the highest legal interest rate if less, and Company may, at its option, suspend any Services or on-going work until all such undisputed amounts are received by Company.  Customer shall bear all of Company’s costs of collection of amounts due hereunder, including reasonable attorneys’ fees.

9.6.      Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve Customer from its payment obligations. The supply of Services shall resume upon payment by the Customer to Company of all outstanding undisputed amounts including interest, plus a $250 per server reinstitution charge.

9.7.      All applicable taxes relating to the sale or use of the Services shall, unless otherwise agreed, be charged in addition to One-Time Fees and/or Monthly Fees.  Where Customer self-reports or self-assesses, Customer shall remit all sales and use taxes as required by law or statute, and Customer shall indemnify Company against any claims for incorrect or unpaid monies.  Neither party will be directly or indirectly responsible for taxes based on income, assets or personnel of the other party.

10.    Term and Termination:

10.1.   This Agreement shall continue until all Order Forms expire or are terminated (the “Term”).

10.2.   The initial term for Services shall be specified on each Order Form (“Initial Term”), and shall automatically renew for additional consecutive terms equal in duration to the Initial Term (each, a “Renewal Term”), unless and until either party notifies the other of its intent to terminate or modify the Services provided under the Order Form at least sixty (60) days before the end of the then-current term.

10.3.   This Agreement may be terminated as specified elsewhere in this Agreement or as follows:

10.3.1.  by either party if the other party breaches any material provision of this Agreement and such breach is not cured within thirty (30) days;

10.3.2.  by either party if the other party becomes insolvent, bankrupt or has a receiver appointed or takes or suffers any similar or analogous procedure, action or event;

10.3.3.  by Company if Customer fails to pay an invoice within ten (10) days after Company’s subsequent notice to Customer that payment is required.

10.4.   Upon termination or expiry of this Agreement:

10.4.1.  Customer will cease to use all Services and remove any Customer Equipment from Company premises prior to or on the last day of the Agreement Term.  Failure to do so will constitute an automatic renewal of this Agreement on a month to month basis for all Company Services at a rate premium of 30% higher than the then-current charges.

10.4.2.  Subject to Microsoft or Third Party Licensing Agreements, inmplied or explicit, Customer may retrieve its own Customer Data at any time during the Term. Company shall promptly deliver to the Customer all other materials which contain Confidential Information of the Customer or, if requested by Customer, Company shall provide Customer with written confirmation that all electronic copies of Customer Confidential Information and Customer Data on Company’s servers, applications, databases, and back-up systems have been destroyed.

11.   Warranty and Disclaimer:

11.1.   Warranty:  During the Term, Company warrants that (a) the Services will achieve in all material respects the functionality described in the applicable Documentation; and (b) consulting Services will be performed in accordance with industry standards and with the same level of care and skill as Company provides to similarly-situated customers.

11.2.   EXCEPT AS SET OUT IN SECTION 11.1 ABOVE, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES.  THE SERVICES ARE PROVIDED “AS-IS”, AND COMPANY DOES NOT WARRANT THAT SERVICES ARE ERROR-FREE. COMPANY MAKES NO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING CUSTOMER’S COMPLIANCE WITH ITS STATUTORY OR REGULATORY OBLIGATIONS), OR ARISING FROM A COURSE OF PERFORMANCE, DEALING, OR USAGE OF TRADE.  THERE IS NO SUCH THING AS PERFECT SECURITY, AND COMPANY CANNOT GUARANTEE OR WARRANT THE SECURITY OF ANY DATA (INCLUDING CONFIDENTIAL INFORMATION) THAT COMPANY RECEIVES AND STORES ON ITS OR ITS VENDORS’ SYSTEMS.  CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING IF THE SERVICES ARE SUFFICIENT FOR CUSTOMER’S PURPOSES.  EXCEPT AS MAY BE EXPRESSLY SET FORTH IN AN ORDER FORM, COMPANY DOES NOT WARRANT ANY VENDOR PRODUCT OR SERVICE.

12.   Infringement Indemnity:

12.1.   Company will hold Customer harmless from, and defend and indemnify Customer against, any and all claims, losses, damages and expenses, including reasonable attorneys’ fees, arising from a third party claim against Customer to the extent that such third party claim is based on a breach of this Agreement due to Company’s infringement of Customer’s or a third party’s intellectual property rights through gross negligence or willful misconduct, and Customer will hold Company harmless from, and defend and indemnify Company against, any and all claims, losses, damages and expenses, including reasonable attorneys’ fees, arising from a third party claim against Company to the extent that such third party claim is based on a breach of this Agreement due to Customer’s infringement of Company’s or a third party’s intellectual property rights through gross negligence or willful misconduct.

13.   Limitation of Liability:

13.1.   NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY IS LIABLE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF REVENUE, PROFITS OR DATA, EVEN IF THE OTHER PARTY HAD ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2.   EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS, EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD SHALL NOT EXCEED THE LESSER OF (A) $200,000 OR (B) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER FOR THE  SERVICES GIVING RISE TO SUCH LIABILITY.

14.   General:

14.1.      Governing Law.  The Agreement shall be governed by and construed in accordance with the laws of:

14.1.1.  the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;

14.1.2.  the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations.

14.2.      Amendments.  The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company.  Terms or conditions that Customer purports to include in a purchase order or similar instrument are void and of no force and effect.

14.3.      Force Majeure.  Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, delays in transportation, or the failure of any system of a third party upon which a party is reliant (collectively and separately “Force Majeure”). Lack of money shall not constitute Force Majeure. For delays due to Force Majeure, the date for delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of such delay.

14.4.      Assignment.  Neither party shall transfer any of its rights or obligations under this Agreement except to an affiliate of or successor in interest to Company without the prior written consent of the other party, and such consent shall not be unreasonably withheld.  Any change of control of Customer or an affiliate of Customer, including a sale of all or substantially all of the assets of Customer or an affiliate of Customer, which results in a competitor of Company having the power to direct or cause the direction of the management of Customer or Customer’s assets is deemed an assignment.  Any assignment of this Agreement without the prior written consent of the other party shall constitute a material breach of this Agreement and shall be null and void.  Subject to the foregoing, this Agreement shall bind and will inure to the benefit of the parties and their permitted successors and assigns.

14.5.      Notices.  All notices shall be in writing and delivered (a) by hand, (b) by registered mail, postage prepaid, return receipt requested, (c) reputable overnight delivery service, (d) by facsimile, provided that the sender retains proof of successful transmission, or (e) by email. Company may revise, amend, or modify the Acceptable Use Policy at any time and in any manner.  Notice of any revision, amendment, or modification will be posted as an update to the Acceptable Use Policy web page.

14.6.      Interpretation.  Unless the context requires otherwise, (a) “including” (and its derivative forms) means including but not limited to; (b) “may” means has the right, but not the obligation to do something and “may not” means does not have the right to do something; and (c) use of the singular imports the plural and vice versa.  Headings shall not be considered in the interpretation of the Agreement.

14.7.      Order of Precedence. An Appendix shall supersede the provisions of this Agreement where the documents are in conflict.  The Agreement shall supersede the provisions of an Order Form, unless the Order Form refers to the specific provision of the Agreement it supersedes.

14.8.      Vendors.  Some Services may be provided or hosted by Vendors.  If Vendor software or services are selected or agreed by Customer for use with the Services, Customer agrees that Company may allow such third party providers to access Customer Data as required for the interoperation of such Vendor software or services with the Services, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider.  Company shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Vendors.  Company reserves the right to use Vendors (who are under a covenant of confidentiality with Company), including offshore subcontractors to assist with the Services, including hosting, data migration, configuration, implementation and custom code development processes.

14.9.      Import/Export.  Each party shall comply with all applicable export, re-export and foreign policy laws that may be imposed by the Canadian and/or United States governments.

14.10.   No Waiver.  Any waiver or consent shall be effective only in the specific instance and purpose for which it was given.

14.11.   Survivability.  The Confidentiality, Proprietary Rights, Limitation of Liability, and the General sections shall survive termination of this Agreement, regardless of the reason for the termination.

14.12.   Severability.  If a court declares void or unenforceable any term of this Agreement, the remaining terms and provisions of this Agreement shall remain unimpaired and the invalid term shall be replaced by a valid term that comes closest to the intention underlying the invalid term.

14.13.   Independent Parties.  Neither party is an agent, employee, partner, joint venturer or legal representative of the other.

14.14.   Entire Agreement.  This Agreement contains the entire understanding between the parties with respect to its subject matter.  All prior agreements, representations, inducements and negotiations, and any and all existing contracts previously executed between the parties with respect to this subject matter are superseded hereby.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : June 6, 2014
Version: 2.0

 

1.     Definitions:

All capitalized terms not defined elsewhere in this Agreement have the following meanings:

1.1.     “Applications” means the software licensed directly by Customer and hosted on Company’s servers.

1.2.     “Company Property” has the meaning set out in Section 3.3.

1.3.     “Customer Data” means anything that Customer or Users upload or enter through the Services in any form including text, graphics (e.g., photographs, illustrations, images, and logos), programs, code, video recordings, audio recordings and personally identifiable information.

1.4.     “Customer Equipment” means any hardware, software other property and any connections or interfaces thereto that are owned or controlled by Customer and housed on Company premises.

1.5.     “Documentation” means Company’s generally available standard user’s manual or release notes pertaining to the Services. Documentation does not include sales and/or marketing materials.

1.6.     “Effective Date” means the later of (a) the effective date for the start of Services as set out in the relevant Order Form; or (b) when the Customer is invoiced for the Production Environment.

1.7.     “Fees” means all charges that may be invoiced under this Agreement, including Monthly Fees and One-Time Fees.

1.8.     “Intellectual Property Rights” means proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including copyright, moral rights, trade secrets, know-how, trademarks, service marks, trade names, patents, data model, invention, drawing, plan, specification, process or similar property.

1.9.     “Month” means a calendar month.

1.10.   “Monthly Fees” means the monthly recurring fees.

1.11.   “One-Time Fees” means the set-up and implementation fees, or any other fees for consulting or other non-recurring Services.

1.12.   “Order Form” means any document for the purchase of Services hereunder that is signed or electronically agreed to by Company and Customer.

1.13.   “Pre-Production Environment” means any environment other than the Production Environment.

1.14.   “Production Environment” means an environment that is used, in whole or in part, for production / live purposes; i.e., is not used for development, testing or staging of the Services.

1.15.   “Services” means all cloud computing, hosting, consulting and related services, including Documentation and Company Property, to be provided by Company to Customer in accordance with this Agreement.

1.16.   “Software” means Company’s and its vendors’ proprietary software used to provide the Services, excluding the Applications.

1.17.   “User” means any person who accesses or uses the Services.

1.18.   “Vendor” means a third party provider of software, products or services to Company.

2.     Services:

2.1.     Company will provide to Customer the Services as described in the Appendices and set out in an Order Form under the terms and conditions of this Agreement.  Upon the Signature Date, Company will provision the Services, and upon the Effective Date, Company shall allow Customer to use the Services in a non-exclusive, non-transferable, time-limited (revoked upon termination) manner by the specified number of Users.

2.2.     Service Performance, Availability and Credits:  Service Availability and Service level credits are defined in the WatServ Service Level Agreement (“SLA”) as set out in Appendix A. Subject to Appendix A, the Company’s Service availability objective is 99.99% uptime for power, internet and infrastructure for Production Environment, and 99.5% uptime for the Applications when used in the Production Environment.

2.3.     Customer Responsibilities: Customer is responsible for making necessary arrangements with its Internet Service Provider, telephone carriers, private bandwidth providers, and local equipment providers so that the Customer has stable, reliable and adequate connectivity and local resources as necessary for expected response time and availability. Customer agrees that Company’s provision of the Services may depend on the completion of certain Customer tasks or adherence to Customer schedules outside of Company’s control; consequently the schedule for completion of the Services or any portion thereof may require adjustments or changes in the event such Customer tasks or schedules change or are modified or are not completed as anticipated, and Customer is responsible for the impact of such delays.

2.4.     Transition Assistance.  At the end of the Term, Customer may request, and Company may agree to provide, transition assistance Services.  The Company will provide an estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.  Such Services may consist of the following:

2.4.1.   Development of a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;

2.4.2.   Performance of consulting services as requested to assist in implementing the transition plan; and

2.4.3.   Provision of other technical assistance as requested by the Customer.

3.     Proprietary Rights:

3.1.     If any Intellectual Property Rights owned by a party are used or provided in connection with the Services, ownership of such Intellectual Property Rights shall remain the originator’s property.

3.2.     Customer warrants that it owns and retains all right, title and interest to, or has appropriate possessory rights in Customer Data and holds all necessary rights and permissions for its use of the Applications and for their hosting by Company for purposes of providing the Services.  Company makes no claim of license, title or ownership to or in Customer Data or Applications.

3.3.     Company has (or may in the course of performing hereunder develop) tools, ideas, concepts, processes, methodologies, software, and know-how (“Company Property”), some of which Company may use or grant Customer the right to use during the Term. Company shall retain exclusive ownership of all such Company Property and shall be entitled to provide services to other parties and use Company Property in connection with performance such services for other parties at any time.

3.4.     Customer may not (a) exceed the usage limits stated in the applicable Order Form; (b) sell, rent or lease the Services in any way, or transfer to any other person any of its rights hereunder; or (c) modify any of the Services or Company Property save as otherwise expressly permitted by Company, nor adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services or Company Property.

4.     Add/Change/Delete:

4.1.     Customer has the ability to add/change/delete (“ACD”) Users’ access to Services during the Term.  The ACD may be completed by the Customer through the Company-provided self-service portal or a Customer-initiated support request, as may be agreed by Customer and Company. Only Customer-designated support contacts will have authority to initiate or request these changes.

4.2.     The Customer can increase or decrease the amount of Users in Active Directory and/or increase or decrease Services by User, as long as the remaining Users total does not fall below the minimum User threshold as identified in this Agreement. Users that have had access to the Services for only a partial month will be charged for a full month’s Service which may include adjustments on subsequent invoices.

4.3.     Company will run a monthly report in Customer’s environments for the purpose of issuing invoices in accordance with Sections 8 and 9, and for ensuring compliance by Customer with the terms of this Agreement.

5.     Customer Support:

Customer’s Applications support will be provided by a certified Microsoft Dynamics Value-Added reseller.  Microsoft roles and responsibilities include support for application functionality, application configuration, application customizations, application integrations, application repairs and application updates/upgrades.   Operational services and technical support services for this Agreement will be provided by the Company as detailed in Appendix B – Company Support and Response Time Policies.

6.     Customer Data:

6.1.     As between Company and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Company as part of its standard Services makes backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with Company’s standard business processes.

6.2.     Company shall maintain commercially reasonable industry standard administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data as required by applicable data protection laws or regulations.

6.3.     Customer acknowledges that Company has no control over, and accepts no responsibility for the contents of Customer Data. Company shall make no effort nor have any obligation to monitor or validate any Customer Data for content, correctness, usability or for any other purpose.

6.4.     As a condition of Customer’s use of the Services, Customer warrants to Company that the Services shall not be used for any purpose or in any manner that is unlawful or prohibited by this Agreement including the Acceptable Use Policy (Appendix C).  In addition, Customer shall not use the Services in any manner which may damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.  Such unlawful or prohibited use will be a material breach of this Agreement, and Company reserves the right to disable the mode of communication, remove Customer Data, or suspend Customer’s and/or its Users’ access to the Services, all without liability to Customer.

6.5.     Customer must defend, indemnify and hold harmless Company, its affiliates, directors, and employees from any damages, losses, costs, fees, fines, claims and expenses arising out of any third party suit, claim or other legal action (including any governmental investigations, complaints and actions) in connection with the Customer Data, as well as any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data.

7.     Confidentiality:

7.1.     “Confidential Information” means information in any form provided to one party about the other party’s or its affiliates’ products or services, business, operations, finances, plans, designs, affairs, systems, installations, clients or Vendors, and other sensitive information that the discloser would reasonably expect to be kept confidential.  Confidential Information may also include Customer Data.  Confidential Information does not include information which is not not otherwise protected under law and (a) is required to be disclosed pursuant to court or regulatory order, provided that, where feasible, the owner of the Confidential Information is given a reasonable chance to limit the disclosure; (b) was already rightfully in its possession before the commencement of negotiations that led to this Agreement; (c) is learned from a third party under no apparent duty of confidentiality; or (d) is or becomes part of the public domain for reasons other than as a result of a breach of this Agreement.

7.2.     Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care its protection) and to make Confidential Information available to authorized persons only on a “need to know” basis.  Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence.

8.     Monthly Fees and One-Time Fees:

Customer will pay the Fees as set out in an invoice issued in accordance with an Order Form, as follows:

8.1.     The Monthly Fee will not decrease below the original amount as defined and agreed to in the Order Form (the “Base Fee”), but can be increased (a) for the addition of Users and/or additional Services not listed in the Order Form; or (b) due to requirements for additions to the environment resources.  Such additions will be billed over and above the Base Fee.

8.2.     The Fees will remain in effect for the duration of the Term subject to the following:

8.2.1.   In order to reflect cost increases for power, software, labor and other components of the Services, an Economic Change Adjustment (“ECA”) will be applied to the Fees on January 1 of every year.  The ECA increase will be the greater of (a) 5%; or (b) the Consumer Price Index published at http://www.bls.gov/news.release/cpi.nr0.htm.  Agreements that have been in place for less than one (1) year will have the ECA pro-rated based on the number of Months since the Effective Date.

8.2.2.   Microsoft and other Vendors have the right to adjust Service Provider Licensing Agreement (“SPLA“) prices for the Software. Customer agrees that material changes to these prices will be passed along to and accepted by Customer from time to time.

8.3.     Customer may request and approve work to be performed by Company that is outside of the scope of this Agreement. This work will be charged at the then-current technical services labor rate and is not considered a portion of the Base Fee or Monthly Fees.

9.     Payment Terms; Taxes:

Payment terms for this Agreement are as follows:

9.1.     Payment for one-time Services and fees for the first Month of Services are due within fifteen (15) days from the Signature Date as a deposit to commence deployment activites; any other invoices shall be due and payable within thirty (30) days from the invoice date.

9.2.     Services for all Agreements under $1,000 per month will be invoiced on a quarterly basis in advance on the first day of the first Month of the relevant quarter for Services to be delivered during that quarter. For all Agreements over $1,000 per Month, Services will be invoiced on monthly basis in advance on the first day of each Month for Services to be delivered during that Month.

9.3.     Invoices for Months subsequent to the first Month of Services may contain adjustments based on prior periods or for additions or changes to Services during that prior period as as outlined in Section 8 above.

9.4.     All dollar amounts in the Agreement are United States currency unless otherwise expressly agreed between the parties in an Order Form.

9.5.     Overdue amounts that are not subject to a good faith dispute shall accrue interest at the rate of 1.5% per month (18% per annum), or at the highest legal interest rate if less, and Company may, at its option, suspend any Services or on-going work until all such undisputed amounts are received by Company.  Customer shall bear all of Company’s costs of collection of amounts due hereunder, including reasonable attorneys’ fees.

9.6.     Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve Customer from its payment obligations. The supply of Services shall resume upon payment by the Customer to Company of all outstanding undisputed amounts including interest, plus a $250 per server reinstitution charge.

9.7.     All applicable taxes relating to the sale or use of the Services shall, unless otherwise agreed, be charged in addition to One-Time Fees and/or Monthly Fees.  Where Customer self-reports or self-assesses, Customer shall remit all sales and use taxes as required by law or statute, and Customer shall indemnify Company against any claims for incorrect or unpaid monies.  Neither party will be directly or indirectly responsible for taxes based on income, assets or personnel of the other party.

10.     Term and Termination:

10.1.   This Agreement shall continue until all Order Forms expire or are terminated (the “Term”).

10.2.   The initial term for Services shall be specified on each Order Form (“Initial Term”), and shall automatically renew for additional consecutive terms equal in duration to the Initial Term (each, a “Renewal Term”), unless and until either party notifies the other of its intent to terminate or modify the Services provided under the Order Form at least sixty (60) days before the end of the then-current term.

10.3.   This Agreement may be terminated as specified elsewhere in this Agreement or as follows:

10.3.1.  by either party if the other party breaches any material provision of this Agreement and such breach is not cured within thirty (30) days;

10.3.2.  by either party if the other party becomes insolvent, bankrupt or has a receiver appointed or takes or suffers any similar or analogous procedure, action or event;

10.3.3.  by Company if Customer fails to pay an invoice within ten (10) days after Company’s subsequent notice to Customer that payment is required.

10.4.   Upon termination or expiry of this Agreement:

10.4.1.  Customer will cease to use all Services and remove any Customer Equipment from Company premises prior to or on the last day of the Agreement Term.  Failure to do so will constitute an automatic renewal of this Agreement on a month to month basis for all Company Services at a rate premium of 30% higher than the then-current charges.

10.4.2.  Customer may retrieve its own Customer Data at any time during the Term. Company shall promptly deliver to the Customer all other materials which contain Confidential Information of the Customer or, if requested by Customer, Company shall provide Customer with written confirmation that all electronic copies of Customer Confidential Information and Customer Data on Company’s servers, applications, databases, and back-up systems have been destroyed.

11.     Warranty and Disclaimer:

11.1.   Warranty:  During the Term, Company warrants that (a) the Services will achieve in all material respects the functionality described in the applicable Documentation; and (b) consulting Services will be performed in accordance with industry standards and with the same level of care and skill as Company provides to similarly-situated customers.

11.2.   Except as set OUT in Section 11.1 above, Company makes no warranties or representations with respect to the Services.  The Services are provided “as-is”, and Company does not warrant that Services are error-free. Company makes no warranties of merchantability, fitness for a particular purpose (including CUSTOMER’s compliance with its statutory or regulatory obligations), or arising from a course of performance, dealing, or usage of trade.  There is no such thing as perfect security, and Company cannot guarantee or warrant the security of any data (including Confidential Information) that Company receives and stores on its or its Vendors’ systems.  Customer assumes all responsibility for determining if the Services are sufficient for Customer’s purposes.  Except as may be expressly set forth in an Order FORM, Company does not warrant any Vendor PRODUCT or service.

12.     Infringement Indemnity:

12.1.   Company will hold Customer harmless from, and defend and indemnify Customer against, any and all claims, losses, damages and expenses, including reasonable attorneys’ fees, arising from a third party claim against Customer to the extent that such third party claim is based on a breach of this Agreement due to Company’s infringement of Customer’s or a third party’s intellectual property rights through gross negligence or willful misconduct, and Customer will hold Company harmless from, and defend and indemnify Company against, any and all claims, losses, damages and expenses, including reasonable attorneys’ fees, arising from a third party claim against Company to the extent that such third party claim is based on a breach of this Agreement due to Customer’s infringement of Company’s or a third party’s intellectual property rights through gross negligence or willful misconduct.

13.     Limitation of Liability:

13.1.   Notwithstanding anything to the contrary herein, neither party is liable for indirect, consequential, incidental, special, punitive or exemplary damages, including loss of revenue, profits or data, even if the other Party had advised of the possibility of such damages.

13.2.   EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS, EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD SHALL NOT EXCEED THE LESSER OF (A) $200,000 OR (B) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER FOR THE  SERVICES GIVING RISE TO SUCH LIABILITY.

14.   General:

14.1.     Governing Law.  The Agreement shall be governed by and construed in accordance with the laws of:

14.1.1.  the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;

14.1.2.  the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations.

14.2.     Amendments.  The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company.  Terms or conditions that Customer purports to include in a purchase order or similar instrument are void and of no force and effect.

14.3.     Force Majeure.  Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, delays in transportation, or the failure of any system of a third party upon which a party is reliant (collectively and separately “Force Majeure”). Lack of money shall not constitute Force Majeure. For delays due to Force Majeure, the date for delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of such delay.

14.4.     Assignment.  Neither party shall transfer any of its rights or obligations under this Agreement except to an affiliate of or successor in interest to Company without the prior written consent of the other party, and such consent shall not be unreasonably withheld.  Any change of control of Customer or an affiliate of Customer, including a sale of all or substantially all of the assets of Customer or an affiliate of Customer, which results in a competitor of Company having the power to direct or cause the direction of the management of Customer or Customer’s assets is deemed an assignment.  Any assignment of this Agreement without the prior written consent of the other party shall constitute a material breach of this Agreement and shall be null and void.  Subject to the foregoing, this Agreement shall bind and will inure to the benefit of the parties and their permitted successors and assigns.

14.5.     Notices.  All notices shall be in writing and delivered (a) by hand, (b) by registered mail, postage prepaid, return receipt requested, (c) reputable overnight delivery service, (d) by facsimile, provided that the sender retains proof of successful transmission, or (e) by email. Company may revise, amend, or modify the Acceptable Use Policy at any time and in any manner.  Notice of any revision, amendment, or modification will be posted as an update to the Acceptable Use Policy web page.

14.6.     Interpretation.  Unless the context requires otherwise, (a) “including” (and its derivative forms) means including but not limited to; (b) “may” means has the right, but not the obligation to do something and “may not” means does not have the right to do something; and (c) use of the singular imports the plural and vice versa.  Headings shall not be considered in the interpretation of the Agreement.

14.7.     Order of Precedence. An Appendix shall supersede the provisions of this Agreement where the documents are in conflict.  The Agreement shall supersede the provisions of an Order Form, unless the Order Form refers to the specific provision of the Agreement it supersedes.

14.8.     Vendors.  Some Services may be provided or hosted by Vendors.  If Vendor software or services are selected or agreed by Customer for use with the Services, Customer agrees that Company may allow such third party providers to access Customer Data as required for the interoperation of such Vendor software or services with the Services, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider.  Company shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Vendors.  Company reserves the right to use Vendors (who are under a covenant of confidentiality with Company), including offshore subcontractors to assist with the Services, including hosting, data migration, configuration, implementation and custom code development processes.

14.9.     Import/Export.  Each party shall comply with all applicable export, re-export and foreign policy laws that may be imposed by the Canadian and/or United States governments.

14.10.  No Waiver.  Any waiver or consent shall be effective only in the specific instance and purpose for which it was given.

14.11.  Survivability.  The Confidentiality, Proprietary Rights, Limitation of Liability, and the General sections shall survive termination of this Agreement, regardless of the reason for the termination.

14.12.  Severability.  If a court declares void or unenforceable any term of this Agreement, the remaining terms and provisions of this Agreement shall remain unimpaired and the invalid term shall be replaced by a valid term that comes closest to the intention underlying the invalid term.

14.13.  Independent Parties.  Neither party is an agent, employee, partner, joint venturer or legal representative of the other.

14.14.  Entire Agreement.  This Agreement contains the entire understanding between the parties with respect to its subject matter.  All prior agreements, representations, inducements and negotiations, and any and all existing contracts previously executed between the parties with respect to this subject matter are superseded hereby.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : December 16, 2013
Version: 1.9

 

1. Agreement

1.1 Applicability of Terms and Conditions
The terms and conditions contained herein and any attachments hereto shall be incorporated by reference to and are deemed to be included in and form part of the Agreement (the “Agreement”) between Waterloo Managed Software Services Ltd. (“Company”) and the customer named in the Agreement (the “Customer”) to which these schedules are attached.

1.2 Amendments and Interpretation
The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company. Any additional or any different terms proposed by the Customer or Company shall be of no effect unless expressly agreed to in writing by Company and the Customer. Prior dealings, usage of trade and course of conduct shall not be relevant to determine the meaning of the Agreement. Headings in the Agreement shall not be considered in the interpretation of the Agreement. All dollar amounts in the Agreement are United States or Canadian currency as stipulated in the attached Agreement.

1.3 Service Performance
Company shall provide the Services in accordance with the Service Levels and other Services requirements set forth in the Agreement. “Service Levels” means the standards for availability, reliability, quality, customer service, capacity, timeliness, conformity, efficiency, effectiveness and responsiveness that Company shall be required to meet in its delivery of the Services, as set forth in the Agreement. In addition, Company shall provide the Services in a professional, diligent, and workmanlike manner, with due care and requisite skill, and (ii) in accordance with the generally accepted industry standards. Customer may require Company to correct the defective or nonconforming Services or to re-perform any defective or nonconforming Services. Customer may also require Company to take appropriate steps to ensure that future performance of the Services will be in accordance with the requirements of the Agreement. Company shall undertake any corrections or other remedial actions required by this Section 1.3 at no additional charge to Customer.

2. Terms and Payment

2.1 Term
The Agreement shall be in effect for the term specified in the Agreement, and any renewal terms in accordance with Section 2.2, unless otherwise terminated as provided in Article 3 (collectively, the “Term”). The term commences on the Date of Agreement as defined in the Agreement.

2.2 Renewal
The Agreement shall automatically renew on a yearly basis thereafter, upon the same terms and conditions save for charges that shall be at the then current rates, unless and until terminated by either party upon ninety (90) days prior written notice thereof. In the event of an automatic renewal, rates will be increased by the greater of 3% or the generally accepted inflation rate for the Country from which the Services are delivered, for each year of the preceding Term where a cost adjustment has not already been made.

2.3 Non‑Payment
If an undisputed invoice or the undisputed portion thereof is unpaid fifteen (15) days after its payment due date, Company shall provide notice of late payment to the Customer, and in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, that the Customer will have fifteen (15) days from Customer’s receipt of such notice of late payment in which to settle outstanding undisputed accounts. If Customer fails to pay an undisputed invoice within fifteen (15) days from Customer’s receipt of such notice of late payment, Company reserves the right to suspend the supply of any or all Services to the Customer pursuant to the Agreement. Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve the Customer from liability to make the payments to Company required by the Agreement during the period that the provision of the Services to the Customer is suspended. The supply of Services pursuant to the Agreement shall resume upon payment by the Customer to Company of all outstanding undisputed invoices, and a $250 per server reinstitution charge.

If an invoice is unpaid 60 days after its payment due date, Company may, in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, terminate the Agreement by written notice to the Customer whereupon all payments not yet paid by the Customer to end of the Term provided for in the Agreement shall become immediately due and payable as liquidated damages, and not as a penalty. If Company is required to bring legal action to recover any amount due to Company by the Customer under the Agreement, the Customer agrees to pay to Company the amount of the reasonable legal fees and costs incurred by Company in such regards.

2.4 Interest
The Customer shall pay Company interest on all amounts not paid by the Customer to Company when due at the simple interest rate of 1.5 percent per month (18 percent per annum), before and after judgment, calculated and payable monthly. This obligation of the Customer to pay, or the payment of, interest on amounts not paid by the Customer to Company when due shall not prejudice the right of Company to immediate payment of amounts due to Company.

2.5 Taxes
All applicable taxes relating to the sale or use of the Services, including but not limited to, municipal, state or federal sales or use taxes in the United States or Goods and Services Tax and Provincial Sales Tax in Canada, shall, unless otherwise specified, be charged in addition to specified charges for Services provided herein.

Where Customer self reports or self assesses, Customer shall remit all sales and use taxes as required by law or statute, and indemnifies Company against any claims for incorrect or unpaid monies.

At no time will either Party, directly or indirectly, be responsible for taxes based on income, assets or personnel of the other .

3. Termination

3.1 Termination of Agreement by Company
Company may by written notice to the Customer terminate the Agreement :
1) if the Customer commits a material breach of the Agreement , for which breach is not cured within forty five (45) days of written notice of such breach by Company to the Customer; or;
2) if the Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or bankruptcy trustee appointed for it or becomes a debtor subject to the provisions of any creditor arrangement, winding up, bankruptcy, or insolvency laws;
3) if this Agreement is terminated by Company anytime before the end of the Term, the customer will be liable for liquidated damages amounts equal to 180 days of Service;
If this Agreement is terminated by Company anytime before the end of the Term for reasons set forth in this paragraph, then all payments under the Agreement not yet paid to Company by the Customer for the balance of what would have been the Term of the Agreement shall become immediately due and payable by the Customer to Company as liquidated damages, and not as a penalty.

3.2 Termination of Agreement by Customer without cause
The Customer may not terminate the Agreement prior to expiry of the Term for convenience or without cause. The Customer may choose to terminate or suspend the use of the Services prior to the end of the Term, but this does not release the Customer of its full financial obligation for the entire Term. Upon written Notice of Termination for convenience:

  1. WatServ will prepare an invoice IN FULL for the anticipated WatServ Services Charges for the remaining Agreement Term. This will be based on an average of the prior three (3) month’s charges and will multiplied by the number or remaining months in the Agreement Term. This invoice will be due upon receipt.
  2. Notice of Early Termination will not be accepted or agreed to by WatServ, either implicitly or explicitly, until full payment of all outstanding invoices is received.
  3. WatServ is not obligated to provide Transition Assistance Services as per 3.4 or any other non-Agreement service until payment of all outstanding invoices is received.
  4. Customer may elect to cease use of services earlier than this notice period, but this does not relieve the customer of the payment in full of the Termination invoice.
  5. Customer will cease to use all WatServ Services and remove any Customer Equipment prior to or on the last day of the Agreement Term or Notice Period, whichever is earlier . Failure to do so will constitute an automatic renewal of this Agreement on a month to month basis for all WatServ Services at a rate premium of thirty (30) percent higher than the current WatServ Service charges.

3.3 Termination of Agreement by Customer with cause
The Agreement may be terminated by the Customer immediately :
1) if Company becomes insolvent;
2) upon the commission of a material breach of the Agreement by Company which breach is not cured within forty five (45) days of written notice of such breach from the Customer;
3) if Company fails to meet the commitments or fulfill its obligations set forth in its Service Level agreements attached hereto and subject to a curative period not less than 30 days; or
4) if Company fails to provide the Services in any material respect for more than ninety six (96) consecutive hours or for more than seventy-two (144) hours in any calendar quarter, for an event other than a Force Majeure event.

3.4 Transition Assistance Services
1) Extension of Services. Customer may once request and Company shall extend the provision of Services for a period not to exceed 180 days beyond the effective date of termination or expiration of this Agreement at the price, terms and conditions in effect as of the date of the request.
2) Transfer Assistance Services. Commencing (i) ninety (90) days prior to the end of the then current Term or on such earlier date as Customer may request and continuing through the end of the Term, or (ii) upon any notice of termination or of non-renewal (including notice based upon breach or default by Customer) of the Term, and continuing through the effective date of the termination of the Term (as such effective date may be extended pursuant to this Section 3.4), Company shall:
a. Assist Customer in developing a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;
b. Perform consulting services as requested to assist in implementing the transition plan; and
c. Provide other technical assistance as requested by the Customer.
3) Notwithstanding anything to the contrary contained in the Agreement, Company shall provide such Transition Assistance Services with the cost to be borne solely by Customer. The Company will provide an Estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.

4. Confidential Information and Customer Data

4.1 Confidential Information
“Confidential Information” means any business or technical information of Company or Customer (including information of Customer, Customer’s affiliates, its or their equity holders, directors, officers, employees, prospects, or customers, or other third parties to whom Customer or its affiliates owe a duty of confidentiality) that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary. This Confidential Information may include, but is not limited to, information relating to the party’s or any of its affiliates’ business; operations’ organization; financial condition; plans; designs; marketing plans; business methods, customers and all similar and related information in whatever form . For the avoidance of doubt, user accounts and passwords providing administrative or user access to Customer’s systems shall constitute Confidential Information of Customer.

4.2 Confidentiality Obligations
Each party acknowledges that it may receive or have access to Confidential Information of the other party in the course of performance under the Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under the Agreement. Company shall not to disclose the Confidential Information of Customer to anyone except to Company’s Personnel who need access to the Confidential Information to perform the Services and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. Each party shall take all reasonable appropriate steps to safeguard Confidential Information and protect such information against disclosure, misuse, espionage, loss and theft.

4.3 Customer Data
Company shall establish and maintain safeguards against the disclosure, destruction, loss, misuse or alteration of Confidential Information and other information and data (including without limitation information relating to an identifiable person) of Customer and its affiliates (collectively, “Customer Data”) that are no less rigorous than those set forth in this Article 4 and as otherwise required by applicable data protection laws or regulations. Company shall notify Customer immediately in the event of (i) a breach of any data protection law or regulation, (ii) a breach in the security of any Customer Data, or (iii) a breach of any requirement under the Agreement with respect to Customer Data.

As between the parties, Customer shall be the sole and exclusive owner of Customer Data. Company shall use the Customer Data solely to perform Company’s obligations under the Agreement. Except as expressly permitted in the Agreement, Company shall not sell, assign, lease, disseminate, or otherwise dispose of the Customer Data or any part thereof to any other person, and Company shall not commercially exploit any part of the Customer Data. Company shall not assert or possess any property interest in, or any lien or other right against or to, any Customer Data.

During the Term of this Agreement and with the Customer not in material breach or default, notwithstanding anything to the contrary contained herein, Company shall make all Customer Data (complete and unaltered) available at any time to Customer and its authorized agents at no additional charge.

4.4 Return of Confidential Information and Customer Data
Upon the termination or expiration of the Agreement or at any time upon Customer’s request, (i) Company shall promptly deliver to the Customer all written records, work papers, manuals, notebooks, reports, documentation and other materials which contain Confidential Information of the Customer or Customer Data , no matter where such material is located and no matter what form such material may be in, and, if requested by the Customer, Company shall provide the Customer with written confirmation that all materials have been returned ; and (ii) Company shall remove all electronic copies of Confidential Information of the Customer and Customer Data from Company’s servers, applications, databases, and back-up systems and shall provide the Customer with written confirmation that all copies have been destroyed

5. Intellectual Property

5.1 Intellectual Property Rights .
For purposes of the Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secrets and know-how; trademarks; and patents and other industrial property rights; software; and all registrations , and applications thereof, now or hereafter in force in any jurisdiction throughout the world. To the extent that any Intellectual Property Rights owned by a party is used in connection to the Services provided under this Agreement, ownership of such Intellectual Property Rights shall remain the originator’s property.

5.2 Company Components .
Customer acknowledges that Company, prior to or during the course of the Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how outside of the Services (“Company Components”), some of which Company may use in performance of Services. The parties agree that Company shall retain exclusive ownership of all such Company Components, and shall be entitled to use any and all Company Components in connection with performance of Services for other parties.

6. Personnel

Company personnel (including Company’s employees and employees of) performing Services for Customer under the Agreement (“Personnel”) may perform similar services for others during or after the Term. Company shall provide Personnel with the proper skill, education, training, background and other qualifications to perform Services in a competent and professional manner. Company shall use commercially reasonable efforts to reduce turnover in the Personnel performing Services. Company shall be and shall remain liable and responsible for the performance of Services hereunder by all Personnel and for the acts and omissions of all Personnel.

7. Non-Solicitation

Except as may otherwise be mutually agreed upon in writing by the parties, during the term of this Agreement and for a one-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.

8. Use of Services

Customer acknowledges that Company has no control over, and accepts no responsibility for the content of information passing over the network, through Category 6 cable connection through to the Network point of demarcation, through Network equipment, or residing on the Equipment (“Customer Content”) or that Company, in the provision of Services hereunder, will be provided, either directly or indirectly, nor seek access to Customer Content. Company shall make no effort nor have any obligation to validate any information passing over the network or Category 6 cable installed by Company for content, correctness, usability or for any other purpose.

9. No Unlawful or Prohibited Use

As a condition of your use of the Services, you warrant to Company that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or contravenes the Company Acceptable Use Policy ( https://watserv.com/Legal/Cloud/CloudAcceptableUsePolicy/) and Anti-SPAM Policy (https://watserv.com/legal/cloud/cloudcloudantispampolicy/) published on the Company web site from time to time.

You may not use the Services in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.

You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

Such unlawful or prohibited user will be considered a material breach of this Agreement subject to curative provisions.

10. Disputes

Without prejudice to either party’s other rights and remedies, in the event of a complaint or dispute (collectively referred to as the “Dispute”) arising out of or in connection with this Agreement, Company and the Customer shall operate the following escalation path to attempt to resolve such Dispute:
1) The Customer shall provide to the Company Account Manager details of the Dispute and the Company Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
2) In the event that within the 5 working days of the referral of the Dispute to the Company Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
3) In the event that within 5 working days of the referral of the Dispute to the Company director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
Notwithstanding the provisions of this clause, either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, or neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.

11. Miscellaneous

11.1 Force Majeure
Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, strike, lockout or other labor difficulty, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, or delays in transportation, or the failure of any telecommunication system of a third party upon which each party is reliant (collectively and separately “Force Majeure”). In no event shall lack of money constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.

11.2 Assignment and Subcontracting
Neither party shall transfer any of its rights or obligations under this Agreement without the express, prior written consent of the other party, provided such consent shall not be unreasonably withheld.

Company may sub-contract any non-material portion of its obligations, in whole or in part, under this Agreement to a Company Associated Company at any time without notice to the Customer, provided that in each case Company shall remain liable for the acts and omissions of any such sub-contractor.

The Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

11.3 Governing Law
The Agreement shall be governed by and construed in accordance with the laws:
1) of the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;
2) of the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations;

11.4 LIMITATIONS ON LIABILITY & DISCLAIMERS
WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THE Agreement, INCLUDING, WITHOUT LIMITATION, THE SCHEDULES HERETO, THE SERVICES ARE NOT GUARANTEED AND ARE PROVIDED “AS IS” AND THE PARTIES GIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO UNINTERRUPTED OR ERROR FREE SERVICE, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INDEMNIFICATION: EACH PARTY COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OTHER (AND THEIR RESPECTIVE SERVANTS, AGENTS, EMPLOYEES, INVITEES, OR REPRESENTATIVES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS, AND RESULTING LOSSES, EXPENSES, COSTS, AND DAMAGES OF WHATEVER NATURE (INCLUDING REASONABLE LEGAL EXPENSES) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY THE INDEMNIFYING PARTY.

LIMITATION ON LIABILITY: IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE OR EXEMPLARY OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) ANY DAMAGES WHATSOEVER RELATING TO LOSS OF USE OF SERVICES OR DATA.

EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD BE AN AMOUNT AWARDED NOT TO EXCEED THE LESSER OF (I) $200,000 OR (II) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER AND PRECEDING THE OCCURRENCES GIVING RISE TO SUCH LIABILITY.

11.5 Notice
Company reserves the right to revise, amend, or modify the Acceptable Use and Anti-SPAM policies at any time and in any manner.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : June 5, 2013
Version: 1.8

 

1. AGREEMENT

1.1 Applicability of Terms and Conditions
The terms and conditions contained herein and any attachments hereto shall be incorporated by reference to and are deemed to be included in and form part of the Agreement (the “Agreement”) between Waterloo Managed Software Services Ltd. (“Company”) and the customer named in the Agreement (the “Customer”) to which these schedules are attached.

1.2 Amendments and Interpretation
The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company. Any additional or any different terms proposed by the Customer or Company shall be of no effect unless expressly agreed to in writing by Company and the Customer. Prior dealings, usage of trade and course of conduct shall not be relevant to determine the meaning of the Agreement. Headings in the Agreement shall not be considered in the interpretation of the Agreement. All dollar amounts in the Agreement are United States or Canadian currency as stipulated in the attached Agreement.

1.3 Service Performance
Company shall provide the Services in accordance with the Service Levels and other Services requirements set forth in the Agreement. “Service Levels” means the standards for availability, reliability, quality, customer service, capacity, timeliness, conformity, efficiency, effectiveness and responsiveness that Company shall be required to meet in its delivery of the Services, as set forth in the Agreement. In addition, Company shall provide the Services in a professional, diligent, and workmanlike manner, with due care and requisite skill, and (ii) in accordance with the generally accepted industry standards. Customer may require Company to correct the defective or nonconforming Services or to re-perform any defective or nonconforming Services. Customer may also require Company to take appropriate steps to ensure that future performance of the Services will be in accordance with the requirements of the Agreement. Company shall undertake any corrections or other remedial actions required by this Section 1.3 at no additional charge to Customer.

2. TERMS AND PAYMENT

2.1 Term
The Agreement shall be in effect for the term specified in the Agreement, and any renewal terms in accordance with Section 2.2, unless otherwise terminated as provided in Article 3 (collectively, the “Term”). The term commences on the Date of Agreement as defined in the Agreement.

2.2 Renewal
The Agreement shall automatically renew on a yearly basis thereafter, upon the same terms and conditions save for charges that shall be at the then current rates, unless and until terminated by either party upon ninety (90) days prior written notice thereof. In the event of an automatic renewal, rates will be increased by the greater of 3% or the generally accepted inflation rate for the Country from which the Services are delivered, for each year of the preceding Term where a cost adjustment has not already been made.

2.3 Non-Payment
If an undisputed invoice or the undisputed portion thereof is unpaid fifteen (15) days after its payment due date, Company shall provide notice of late payment to the Customer, and in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, that the Customer will have fifteen (15) days from Customer’s receipt of such notice of late payment in which to settle outstanding undisputed accounts. If Customer fails to pay an undisputed invoice within fifteen (15) days from Customer’s receipt of such notice of late payment, Company reserves the right to suspend the supply of any or all Services to the Customer pursuant to the Agreement. Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve the Customer from liability to make the payments to Company required by the Agreement during the period that the provision of the Services to the Customer is suspended. The supply of Services pursuant to the Agreement shall resume upon payment by the Customer to Company of all outstanding undisputed invoices, and a $250 per server reinstitution charge.

If an invoice is unpaid 60 days after its payment due date, Company may, in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, terminate the Agreement by written notice to the Customer whereupon all payments not yet paid by the Customer to end of the Term provided for in the Agreement shall become immediately due and payable as liquidated damages, and not as a penalty. If Company is required to bring legal action to recover any amount due to Company by the Customer under the Agreement, the Customer agrees to pay to Company the amount of the reasonable legal fees and costs incurred by Company in such regards.

2.4 Interest
The Customer shall pay Company interest on all amounts not paid by the Customer to Company when due at the simple interest rate of 1.5 percent per month (18 percent per annum), before and after judgment, calculated and payable monthly. This obligation of the Customer to pay, or the payment of, interest on amounts not paid by the Customer to Company when due shall not prejudice the right of Company to immediate payment of amounts due to Company.

2.5 Taxes
All applicable taxes relating to the sale or use of the Services, including but not limited to, municipal, state or federal sales or use taxes in the United States or Goods and Services Tax and Provincial Sales Tax in Canada, shall, unless otherwise specified, be charged in addition to specified charges for Services provided herein.

Where Customer self reports or self assesses, Customer shall remit all sales and use taxes as required by law or statute, and indemnifies Company against any claims for incorrect or unpaid monies.

At no time will either Party, directly or indirectly, be responsible for taxes based on income, assets or personnel of the other .

3. TERMINATION

3.1 Termination of Agreement by Company
Company may by written notice to the Customer terminate the Agreement :

1) if the Customer commits a material breach of the Agreement , for which breach is not cured within forty five (45) days of written notice of such breach by Company to the Customer; or;
2) if the Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or bankruptcy trustee appointed for it or becomes a debtor subject to the provisions of any creditor arrangement, winding up, bankruptcy, or insolvency laws;
3) if this Agreement is terminated by Company anytime before the end of the Term, the customer will be liable for liquidated damages amounts equal to 180 days of Service;
If this Agreement is terminated by Company anytime before the end of the Term for reasons set forth in this paragraph, then all payments under the Agreement not yet paid to Company by the Customer for the balance of what would have been the Term of the Agreement shall become immediately due and payable by the Customer to Company as liquidated damages, and not as a penalty.

3.2 Termination of Agreement by Customer without cause
The Customer may not terminate the Agreement prior to expiry of the Term for convenience or without cause. The Customer may choose to terminate or suspend the use of the Services prior to the end of the Term, but this does not release the Customer of its full financial obligation for the entire Term.

3.3 Termination of Agreement by Customer with cause
The Agreement may be terminated by the Customer immediately :

1) if Company becomes insolvent;
2) upon the commission of a material breach of the Agreement by Company which breach is not cured within forty five (45) days of written notice of such breach from the Customer;
3) if Company fails to meet the commitments or fulfill its obligations set forth in its Service Level agreements attached hereto and subject to a curative period not less than 30 days; or
4) if Company fails to provide the Services in any material respect for more than ninety six (96) consecutive hours or for more than seventy-two (144) hours in any calendar quarter, for an event other than a Force Majeure event.

3.4 Transition Assistance Services

1) Extension of Services. Customer may once request and Company shall extend the provision of Services for a period not to exceed 180 days beyond the effective date of termination or expiration of this Agreement at the price, terms and conditions in effect as of the date of the request.
2) Transfer Assistance Services. Commencing (i) ninety (90) days prior to the end of the then current Term or on such earlier date as Customer may request and continuing through the end of the Term, or (ii) upon any notice of termination or of non-renewal (including notice based upon breach or default by Customer) of the Term, and continuing through the effective date of the termination of the Term (as such effective date may be extended pursuant to this Section 3.4), Company shall:
a. Assist Customer in developing a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;
b. Perform consulting services as requested to assist in implementing the transition plan; and
c. Provide other technical assistance as requested by the Customer.
3) Notwithstanding anything to the contrary contained in the Agreement, Company shall provide such Transition Assistance Services with the cost to be borne solely by Customer. The Company will provide an Estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.

4. CONFIDENTIAL INFORMATION AND CUSTOMER DATA

4.1 Confidential Information
“Confidential Information” means any business or technical information of Company or Customer (including information of Customer, Customer’s affiliates, its or their equity holders, directors, officers, employees, prospects, or customers, or other third parties to whom Customer or its affiliates owe a duty of confidentiality) that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary. This Confidential Information may include, but is not limited to, information relating to the party’s or any of its affiliates’ business; operations’ organization; financial condition; plans; designs; marketing plans; business methods, customers and all similar and related information in whatever form . For the avoidance of doubt, user accounts and passwords providing administrative or user access to Customer’s systems shall constitute Confidential Information of Customer.

4.2 Confidentiality Obligations
Each party acknowledges that it may receive or have access to Confidential Information of the other party in the course of performance under the Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under the Agreement. Company shall not to disclose the Confidential Information of Customer to anyone except to Company’s Personnel who need access to the Confidential Information to perform the Services and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. Each party shall take all reasonable appropriate steps to safeguard Confidential Information and protect such information against disclosure, misuse, espionage, loss and theft.

4.3 Customer Data
Company shall establish and maintain safeguards against the disclosure, destruction, loss, misuse or alteration of Confidential Information and other information and data (including without limitation information relating to an identifiable person) of Customer and its affiliates (collectively, “Customer Data”) that are no less rigorous than those set forth in this Article 4 and as otherwise required by applicable data protection laws or regulations. Company shall notify Customer immediately in the event of (i) a breach of any data protection law or regulation, (ii) a breach in the security of any Customer Data, or (iii) a breach of any requirement under the Agreement with respect to Customer Data.

As between the parties, Customer shall be the sole and exclusive owner of Customer Data. Company shall use the Customer Data solely to perform Company’s obligations under the Agreement. Except as expressly permitted in the Agreement, Company shall not sell, assign, lease, disseminate, or otherwise dispose of the Customer Data or any part thereof to any other person, and Company shall not commercially exploit any part of the Customer Data. Company shall not assert or possess any property interest in, or any lien or other right against or to, any Customer Data.

During the Term of this Agreement and with the Customer not in material breach or default, notwithstanding anything to the contrary contained herein, Company shall make all Customer Data (complete and unaltered) available at any time to Customer and its authorized agents at no additional charge.

4.4 Return of Confidential Information and Customer Data
Upon the termination or expiration of the Agreement or at any time upon Customer’s request, (i) Company shall promptly deliver to the Customer all written records, work papers, manuals, notebooks, reports, documentation and other materials which contain Confidential Information of the Customer or Customer Data , no matter where such material is located and no matter what form such material may be in, and, if requested by the Customer, Company shall provide the Customer with written confirmation that all materials have been returned ; and (ii) Company shall remove all electronic copies of Confidential Information of the Customer and Customer Data from Company’s servers, applications, databases, and back-up systems and shall provide the Customer with written confirmation that all copies have been destroyed

5. INTELLECTUAL PROPERTY

5.1 Intellectual Property Rights .
For purposes of the Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secrets and know-how; trademarks; and patents and other industrial property rights; software; and all registrations , and applications thereof, now or hereafter in force in any jurisdiction throughout the world. To the extent that any Intellectual Property Rights owned by a party is used in connection to the Services provided under this Agreement, ownership of such Intellectual Property Rights shall remain the originator’s property.

5.2 Company Components .
Customer acknowledges that Company, prior to or during the course of the Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how outside of the Services (“Company Components”), some of which Company may use in performance of Services. The parties agree that Company shall retain exclusive ownership of all such Company Components, and shall be entitled to use any and all Company Components in connection with performance of Services for other parties.

6. PERSONNEL

Company personnel (including Company’s employees and employees of) performing Services for Customer under the Agreement (“Personnel”) may perform similar services for others during or after the Term. Company shall provide Personnel with the proper skill, education, training, background and other qualifications to perform Services in a competent and professional manner. Company shall use commercially reasonable efforts to reduce turnover in the Personnel performing Services. Company shall be and shall remain liable and responsible for the performance of Services hereunder by all Personnel and for the acts and omissions of all Personnel.

7. NON-SOLICITATION

Except as may otherwise be mutually agreed upon in writing by the parties, during the term of this Agreement and for a one-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.

8. USE OF SERVICES

Customer acknowledges that Company has no control over, and accepts no responsibility for the content of information passing over the network, through Category 6 cable connection through to the Network point of demarcation, through Network equipment, or residing on the Equipment (“Customer Content”) or that Company, in the provision of Services hereunder, will be provided, either directly or indirectly, nor seek access to Customer Content. Company shall make no effort nor have any obligation to validate any information passing over the network or Category 6 cable installed by Company for content, correctness, usability or for any other purpose.

9. NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Services, you warrant to Company that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or contravenes the Company Acceptable Use Policy ( https://watserv.com/Legal/Cloud/CloudAcceptableUsePolicy/) and Anti-SPAM Policy (https://watserv.com/legal/cloud/cloudcloudantispampolicy/) published on the Company web site from time to time.

You may not use the Services in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.

You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

Such unlawful or prohibited user will be considered a material breach of this Agreement subject to curative provisions.

10. DISPUTES

Without prejudice to either party’s other rights and remedies, in the event of a complaint or dispute (collectively referred to as the “Dispute”) arising out of or in connection with this Agreement, Company and the Customer shall operate the following escalation path to attempt to resolve such Dispute:

1) The Customer shall provide to the Company Account Manager details of the Dispute and the Company Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
2) In the event that within the 5 working days of the referral of the Dispute to the Company Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
3) In the event that within 5 working days of the referral of the Dispute to the Company director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.

Notwithstanding the provisions of this clause, either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, or neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.

11. MISCELLANEOUS

11.1 Force Majeure
Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, strike, lockout or other labor difficulty, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, or delays in transportation, or the failure of any telecommunication system of a third party upon which each party is reliant (collectively and separately “Force Majeure”). In no event shall lack of money constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.

11.2 Assignment and Subcontracting
Neither party shall transfer any of its rights or obligations under this Agreement without the express, prior written consent of the other party, provided such consent shall not be unreasonably withheld.

Company may sub-contract any non-material portion of its obligations, in whole or in part, under this Agreement to a Company Associated Company at any time without notice to the Customer, provided that in each case Company shall remain liable for the acts and omissions of any such sub-contractor.

The Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

11.3 Governing Law
The Agreement shall be governed by and construed in accordance with the laws:

1) of the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;
2) of the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations;

11.4 LIMITATIONS ON LIABILITY & DISCLAIMERS
WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THE Agreement, INCLUDING, WITHOUT LIMITATION, THE SCHEDULES HERETO, THE SERVICES ARE NOT GUARANTEED AND ARE PROVIDED “AS IS” AND THE PARTIES GIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO UNINTERRUPTED OR ERROR FREE SERVICE, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INDEMNIFICATION: EACH PARTY COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OTHER (AND THEIR RESPECTIVE SERVANTS, AGENTS, EMPLOYEES, INVITEES, OR REPRESENTATIVES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS, AND RESULTING LOSSES, EXPENSES, COSTS, AND DAMAGES OF WHATEVER NATURE (INCLUDING REASONABLE LEGAL EXPENSES) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY THE INDEMNIFYING PARTY.

LIMITATION ON LIABILITY: IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE OR EXEMPLARY OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) ANY DAMAGES WHATSOEVER RELATING TO LOSS OF USE OF SERVICES OR DATA.

EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD BE AN AMOUNT AWARDED NOT TO EXCEED THE LESSER OF (I) $200,000 OR (II) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER AND PRECEDING THE OCCURRENCES GIVING RISE TO SUCH LIABILITY.

11.5 Notice
Company reserves the right to revise, amend, or modify the Acceptable Use and Anti-SPAM policies at any time and in any manner.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : May 14, 2012
Version: 1.7

 

1. AGREEMENT

1.1 Applicability of Terms and Conditions
The terms and conditions contained herein and any attachments hereto shall be incorporated by reference to and are deemed to be included in and form part of the Agreement (the “Agreement”) between Waterloo Managed Software Services Ltd. (“Company”) and the customer named in the Agreement (the “Customer”) to which these schedules are attached.

1.2 Amendments and Interpretation
The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company. Any additional or any different terms proposed by the Customer or Company shall be of no effect unless expressly agreed to in writing by Company and the Customer. Prior dealings, usage of trade and course of conduct shall not be relevant to determine the meaning of the Agreement. Headings in the Agreement shall not be considered in the interpretation of the Agreement. All dollar amounts in the Agreement are United States or Canadian currency as stipulated in the attached Agreement.

1.3 Service Performance
Company shall provide the Services in accordance with the Service Levels and other Services requirements set forth in the Agreement. “Service Levels” means the standards for availability, reliability, quality, customer service, capacity, speed, timeliness, conformity, efficiency, effectiveness and responsiveness that Company shall be required to meet in its delivery of the Services, as set forth in the Agreement. In addition, Company shall provide the Services in a professional, diligent, and workmanlike manner, with due care and requisite skill, and (ii) in accordance with the generally accepted industry standards. Customer may require Company to correct the defective or nonconforming Services or to re-perform any defective or nonconforming Services. Customer may also require Company to take appropriate steps to ensure that future performance of the Services will be in accordance with the requirements of the Agreement. Company shall undertake any corrections or other

2. TERMS AND PAYMENT

2.1 Term
The Agreement shall be in effect for the term specified in the Agreement, and any renewal terms in accordance with Section 2.2, unless otherwise terminated as provided in Article 3 (collectively, the “Term”). The term commences on the Date of Agreement as defined in the Agreement.

2.2 Renewal
The Agreement shall automatically renew on a yearly basis thereafter, upon the same terms and conditions save for charges that shall be at the then current rates, unless and until terminated by either party upon ninety (90) days prior written notice thereof. In the event of an automatic renewal, rates will be increased by the greater of 3% or the generally accepted inflation rate for the Country from which the Services are delivered, for each year of the preceding Term where a cost adjustment has not already been made.

2.3 Non‑Payment
If an undisputed invoice or the undisputed portion thereof is unpaid fifteen (15) days after its payment due date, Company shall provide notice of late payment to the Customer, and in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, that the Customer will have fifteen (15) days from Customer’s receipt of such notice of late payment in which to settle outstanding undisputed accounts. If Customer fails to pay an undisputed invoice within fifteen (15) days from Customer’s receipt of such notice of late payment, Company reserves the right to suspend the supply of any or all Services to the Customer pursuant to the Agreement. Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve the Customer from liability to make the payments to Company required by the Agreement during the period that the provision of the Services to the Customer is suspended. The supply of Services pursuant to the Agreement shall resume upon payment by the Customer to Company of all outstanding undisputed invoices, and a $250 per server reinstitution charge.

If an invoice is unpaid 60 days after its payment due date, Company may, in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, terminate the Agreement by written notice to the Customer whereupon all payments not yet paid by the Customer to end of the Term provided for in the Agreement shall become immediately due and payable as liquidated damages, and not as a penalty. If Company is required to bring legal action to recover any amount due to Company by the Customer under the Agreement, the Customer agrees to pay to Company the amount of the reasonable legal fees and costs incurred by Company in such regards.

2.4 Interest
The Customer shall pay Company interest on all amounts not paid by the Customer to Company when due at the simple interest rate of 1.5 percent per month (18 percent per annum), before and after judgment, calculated and payable monthly. This obligation of the Customer to pay, or the payment of, interest on amounts not paid by the Customer to Company when due shall not prejudice the right of Company to immediate payment of amounts due to Company.

2.5 Taxes
All applicable taxes relating to the sale or use of the Services, including but not limited to, municipal, state or federal sales or use taxes in the United States or Goods and Services Tax and Provincial Sales Tax in Canada, shall, unless otherwise specified, be charged in addition to specified charges for Services provided herein.

Where Customer self reports or self assesses, Customer shall remit all sales and use taxes as required by law or statute, and indemnifies Company against any claims for incorrect or unpaid monies.

At no time will either Party, directly or indirectly, be responsible for taxes based on income, assets or personnel of the other .

3. TERMINATION

3.1 Termination of Agreement by Company
Company may by written notice to the Customer terminate the Agreement :

1) if the Customer commits a material breach of the Agreement , for which breach is not cured within forty five (45) days of written notice of such breach by Company to the Customer; or;
2) if the Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or bankruptcy trustee appointed for it or becomes a debtor subject to the provisions of any creditor arrangement, winding up, bankruptcy, or insolvency laws;
3) if this Agreement is terminated by Company anytime before the end of the Term, the customer will be liable for liquidated damages amounts equal to 180 days of Service;
If this Agreement is terminated by Company anytime before the end of the Term for reasons set forth in this paragraph, then all payments under the Agreement not yet paid to Company by the Customer for the balance of what would have been the Term of the Agreement shall become immediately due and payable by the Customer to Company as liquidated damages, and not as a penalty.

3.2 Termination of Agreement by Customer without cause
The Customer may not terminate the Agreement prior to expiry of the Term for convenience or without cause. The Customer may choose to terminate or suspend the use of the Services prior to the end of the Term, but this does not release the Customer of its full financial obligation for the entire Term.

3.3 Termination of Agreement by Customer with cause
The Agreement may be terminated by the Customer immediately :

1) if Company becomes insolvent;
2) upon the commission of a material breach of the Agreement by Company which breach is not cured within forty five (45) days of written notice of such breach from the Customer;
3) if Company fails to meet the commitments or fulfill its obligations set forth in its Service Level agreements attached hereto and subject to a curative period not less than 30 days; or
4) if Company fails to provide the Services in any material respect for more than ninety six (96) consecutive hours or for more than seventy-two (144) hours in any calendar quarter, for an event other than a Force Majeure event.

3.4 Transition Assistance Services

1) Extension of Services. Customer may once request and Company shall extend the provision of Services for a period not to exceed 180 days beyond the effective date of termination or expiration of this Agreement at the price, terms and conditions in effect as of the date of the request.
2) Transfer Assistance Services. Commencing (i) ninety (90) days prior to the end of the then current Term or on such earlier date as Customer may request and continuing through the end of the Term, or (ii) upon any notice of termination or of non-renewal (including notice based upon breach or default by Customer) of the Term, and continuing through the effective date of the termination of the Term (as such effective date may be extended pursuant to this Section 3.4), Company shall:
a. Assist Customer in developing a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;
b. Perform consulting services as requested to assist in implementing the transition plan; and
c. Provide other technical assistance as requested by the Customer.
3) Notwithstanding anything to the contrary contained in the Agreement, Company shall provide such Transition Assistance Services with the cost to be borne solely by Customer. The Company will provide an Estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.

4. CONFIDENTIAL INFORMATION AND CUSTOMER DATA

4.1 Confidential Information
“Confidential Information” means any business or technical information of Company or Customer (including information of Customer, Customer’s affiliates, its or their equity holders, directors, officers, employees, prospects, or customers, or other third parties to whom Customer or its affiliates owe a duty of confidentiality) that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary. This Confidential Information may include, but is not limited to, information relating to the party’s or any of its affiliates’ business; operations’ organization; financial condition; plans; designs; marketing plans; business methods, customers and all similar and related information in whatever form . For the avoidance of doubt, user accounts and passwords providing administrative or user access to Customer’s systems shall constitute Confidential Information of Customer.

4.2 Confidentiality Obligations
Each party acknowledges that it may receive or have access to Confidential Information of the other party in the course of performance under the Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under the Agreement. Company shall not to disclose the Confidential Information of Customer to anyone except to Company’s Personnel who need access to the Confidential Information to perform the Services and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. Each party shall take all reasonable appropriate steps to safeguard Confidential Information and protect such information against disclosure, misuse, espionage, loss and theft.

4.3 Customer Data
Company shall establish and maintain safeguards against the disclosure, destruction, loss, misuse or alteration of Confidential Information and other information and data (including without limitation information relating to an identifiable person) of Customer and its affiliates (collectively, “Customer Data”) that are no less rigorous than those set forth in this Article 4 and as otherwise required by applicable data protection laws or regulations. Company shall notify Customer immediately in the event of (i) a breach of any data protection law or regulation, (ii) a breach in the security of any Customer Data, or (iii) a breach of any requirement under the Agreement with respect to Customer Data.

As between the parties, Customer shall be the sole and exclusive owner of Customer Data. Company shall use the Customer Data solely to perform Company’s obligations under the Agreement. Except as expressly permitted in the Agreement, Company shall not sell, assign, lease, disseminate, or otherwise dispose of the Customer Data or any part thereof to any other person, and Company shall not commercially exploit any part of the Customer Data. Company shall not assert or possess any property interest in, or any lien or other right against or to, any Customer Data.

During the Term of this Agreement and with the Customer not in material breach or default, notwithstanding anything to the contrary contained herein, Company shall make all Customer Data (complete and unaltered) available at any time to Customer and its authorized agents at no additional charge.

4.4 Return of Confidential Information and Customer Data
Upon the termination or expiration of the Agreement or at any time upon Customer’s request, (i) Company shall promptly deliver to the Customer all written records, work papers, manuals, notebooks, reports, documentation and other materials which contain Confidential Information of the Customer or Customer Data , no matter where such material is located and no matter what form such material may be in, and, if requested by the Customer, Company shall provide the Customer with written confirmation that all materials have been returned ; and (ii) Company shall remove all electronic copies of Confidential Information of the Customer and Customer Data from Company’s servers, applications, databases, and back-up systems and shall provide the Customer with written confirmation that all copies have been destroyed

5. INTELLECTUAL PROPERTY

5.1 Intellectual Property Rights .
For purposes of the Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secrets and know-how; trademarks; and patents and other industrial property rights; software; and all registrations , and applications thereof, now or hereafter in force in any jurisdiction throughout the world. To the extent that any Intellectual Property Rights owned by a party is used in connection to the Services provided under this Agreement, ownership of such Intellectual Property Rights shall remain the originator’s property.

5.2 Company Components .
Customer acknowledges that Company, prior to or during the course of the Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how outside of the Services (“Company Components”), some of which Company may use in performance of Services. The parties agree that Company shall retain exclusive ownership of all such Company Components, and shall be entitled to use any and all Company Components in connection with performance of Services for other parties.

6. PERSONNEL

Company personnel (including Company’s employees and employees of) performing Services for Customer under the Agreement (“Personnel”) may perform similar services for others during or after the Term. Company shall provide Personnel with the proper skill, education, training, background and other qualifications to perform Services in a competent and professional manner. Company shall use commercially reasonable efforts to reduce turnover in the Personnel performing Services. Company shall be and shall remain liable and responsible for the performance of Services hereunder by all Personnel and for the acts and omissions of all Personnel.

7. NON-SOLICITATION

Except as may otherwise be mutually agreed upon in writing by the parties, during the term of this Agreement and for a one-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.

8. USE OF SERVICES

Customer acknowledges that Company has no control over, and accepts no responsibility for the content of information passing over the network, through Category 6 cable connection through to the Network point of demarcation, through Network equipment, or residing on the Equipment (“Customer Content”) or that Company, in the provision of Services hereunder, will be provided, either directly or indirectly, nor seek access to Customer Content. Company shall make no effort nor have any obligation to validate any information passing over the network or Category 6 cable installed by Company for content, correctness, usability or for any other purpose.

9. NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Services, you warrant to Company that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or contravenes the Company Acceptable Use Policy ( https://watserv.com/Legal/Cloud/CloudAcceptableUsePolicy/) and Anti-SPAM Policy (https://watserv.com/legal/cloud/cloudcloudantispampolicy/) published on the Company web site from time to time.

You may not use the Services in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.

You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

Such unlawful or prohibited user will be considered a material breach of this Agreement subject to curative provisions.

10. DISPUTES

Without prejudice to either party’s other rights and remedies, in the event of a complaint or dispute (collectively referred to as the “Dispute”) arising out of or in connection with this Agreement, Company and the Customer shall operate the following escalation path to attempt to resolve such Dispute:

1) The Customer shall provide to the Company Account Manager details of the Dispute and the Company Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
2) In the event that within the 5 working days of the referral of the Dispute to the Company Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
3) In the event that within 5 working days of the referral of the Dispute to the Company director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.

Notwithstanding the provisions of this clause, either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, or neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.

11. MISCELLANEOUS

11.1 Force Majeure
Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, strike, lockout or other labor difficulty, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, or delays in transportation, or the failure of any telecommunication system of a third party upon which each party is reliant (collectively and separately “Force Majeure”). In no event shall lack of money constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.

11.2 Assignment and Subcontracting
Neither party shall transfer any of its rights or obligations under this Agreement without the express, prior written consent of the other party, provided such consent shall not be unreasonably withheld.

Company may sub-contract any non-material portion of its obligations, in whole or in part, under this Agreement to a Company Associated Company at any time without notice to the Customer, provided that in each case Company shall remain liable for the acts and omissions of any such sub-contractor.

The Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

11.3 Governing Law
The Agreement shall be governed by and construed in accordance with the laws:

1) of the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;
2) of the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations;

11.4 LIMITATIONS ON LIABILITY & DISCLAIMERS
WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THE Agreement, INCLUDING, WITHOUT LIMITATION, THE SCHEDULES HERETO, THE SERVICES ARE NOT GUARANTEED AND ARE PROVIDED “AS IS” AND THE PARTIES GIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO UNINTERRUPTED OR ERROR FREE SERVICE, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INDEMNIFICATION: EACH PARTY COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OTHER (AND THEIR RESPECTIVE SERVANTS, AGENTS, EMPLOYEES, INVITEES, OR REPRESENTATIVES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS, AND RESULTING LOSSES, EXPENSES, COSTS, AND DAMAGES OF WHATEVER NATURE (INCLUDING REASONABLE LEGAL EXPENSES) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY THE INDEMNIFYING PARTY.

LIMITATION ON LIABILITY: IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE OR EXEMPLARY OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) ANY DAMAGES WHATSOEVER RELATING TO LOSS OF USE OF SERVICES OR DATA.

EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD BE AN AMOUNT AWARDED NOT TO EXCEED THE LESSER OF (I) $200,000 OR (II) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER AND PRECEDING THE OCCURRENCES GIVING RISE TO SUCH LIABILITY.

11.5 Notice
Company reserves the right to revise, amend, or modify the Acceptable Use and Anti-SPAM policies at any time and in any manner.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : May 14, 2012
Version: 1.6

 

1. AGREEMENT

1.1 Applicability of Terms and Conditions
The terms and conditions contained herein and any attachments hereto shall be incorporated by reference to and are deemed to be included in and form part of the Agreement (the “Agreement”) between Waterloo Managed Software Services Ltd. (“Company”) and the customer named in the Agreement (the “Customer”) to which these schedules are attached.

1.2 Amendments and Interpretation
The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company. Any additional or any different terms proposed by the Customer or Company shall be of no effect unless expressly agreed to in writing by Company and the Customer. Prior dealings, usage of trade and course of conduct shall not be relevant to determine the meaning of the Agreement. Headings in the Agreement shall not be considered in the interpretation of the Agreement. All dollar amounts in the Agreement are United States or Canadian currency as stipulated in the attached Agreement.

1.3 Service Performance
Company shall provide the Services in accordance with the Service Levels and other Services requirements set forth in the Agreement. “Service Levels” means the standards for availability, reliability, quality, customer service, capacity, speed, timeliness, conformity, efficiency, effectiveness and responsiveness that Company shall be required to meet in its delivery of the Services, as set forth in the Agreement. In addition, Company shall provide the Services in a professional, diligent, and workmanlike manner, with due care and requisite skill, and (ii) in accordance with the generally accepted industry standards. Customer may require Company to correct the defective or nonconforming Services or to re-perform any defective or nonconforming Services. Customer may also require Company to take appropriate steps to ensure that future performance of the Services will be in accordance with the requirements of the Agreement. Company shall undertake any corrections or other

2. TERMS AND PAYMENT

2.1 Term
The Agreement shall be in effect for the term specified in the Agreement, and any renewal terms in accordance with Section 2.2, unless otherwise terminated as provided in Article 3 (collectively, the “Term”). The term commences on the Date of Agreement as defined in the Agreement.

2.2 Renewal
The Agreement shall automatically renew on a yearly basis thereafter, upon the same terms and conditions save for charges that shall be at the then current rates, unless and until terminated by either party upon ninety (90) days prior written notice thereof. In the event of an automatic renewal, rates will be increased by the greater of 3% or the generally accepted inflation rate for the Country from which the Services are delivered, for each year of the preceding Term where a cost adjustment has not already been made.

2.3 Non‑Payment
If an undisputed invoice or the undisputed portion thereof is unpaid fifteen (15) days after its payment due date, Company shall provide notice of late payment to the Customer, and in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, that the Customer will have fifteen (15) days from Customer’s receipt of such notice of late payment in which to settle outstanding undisputed accounts. If Customer fails to pay an undisputed invoice within fifteen (15) days from Customer’s receipt of such notice of late payment, Company reserves the right to suspend the supply of any or all Services to the Customer pursuant to the Agreement. Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve the Customer from liability to make the payments to Company required by the Agreement during the period that the provision of the Services to the Customer is suspended. The supply of Services pursuant to the Agreement shall resume upon payment by the Customer to Company of all outstanding undisputed invoices, and a $250 per server reinstitution charge.

If an invoice is unpaid 60 days after its payment due date, Company may, in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, terminate the Agreement by written notice to the Customer whereupon all payments not yet paid by the Customer to end of the Term provided for in the Agreement shall become immediately due and payable as liquidated damages, and not as a penalty. If Company is required to bring legal action to recover any amount due to Company by the Customer under the Agreement, the Customer agrees to pay to Company the amount of the reasonable legal fees and costs incurred by Company in such regards.

2.4 Interest
The Customer shall pay Company interest on all amounts not paid by the Customer to Company when due at the simple interest rate of 1.5 percent per month (18 percent per annum), before and after judgment, calculated and payable monthly. This obligation of the Customer to pay, or the payment of, interest on amounts not paid by the Customer to Company when due shall not prejudice the right of Company to immediate payment of amounts due to Company.

2.5 Taxes
All applicable taxes relating to the sale or use of the Services, including but not limited to, municipal, state or federal sales or use taxes in the United States or Goods and Services Tax and Provincial Sales Tax in Canada, shall, unless otherwise specified, be charged in addition to specified charges for Services provided herein.

Where Customer self reports or self assesses, Customer shall remit all sales and use taxes as required by law or statute, and indemnifies Company against any claims for incorrect or unpaid monies.

At no time will either Party, directly or indirectly, be responsible for taxes based on income, assets or personnel of the other .

3. TERMINATION

3.1 Termination of Agreement by Company
Company may by written notice to the Customer terminate the Agreement :

1) if the Customer commits a material breach of the Agreement , for which breach is not cured within forty five (45) days of written notice of such breach by Company to the Customer; or;
2) if the Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or bankruptcy trustee appointed for it or becomes a debtor subject to the provisions of any creditor arrangement, winding up, bankruptcy, or insolvency laws;
3) if this Agreement is terminated by Company anytime before the end of the Term, the customer will be liable for liquidated damages amounts equal to 180 days of Service;
If this Agreement is terminated by Company anytime before the end of the Term for reasons set forth in this paragraph, then all payments under the Agreement not yet paid to Company by the Customer for the balance of what would have been the Term of the Agreement shall become immediately due and payable by the Customer to Company as liquidated damages, and not as a penalty.

3.2 Termination of Agreement by Customer without cause
The Customer may terminate the Agreement prior to expiry of the Term for convenience and without cause with written notice to Company with the following constraints:

1) Not within the first 12 months whatsoever;
2) If after the first 12 months:

a) Notice shall not be less than one half (1/2) of the remaining contract term, or ninety (90) days, whichever is greater.
This will be known as the Notice Period.
b) Upon Notice of early CONTRACT Termination, WatServ will prepare an invoice IN FULL for the anticipated WatServ Services Charges for the Notice Period. This will be based on an average of the prior three (3) month’s charges and will be due upon receipt.
c) Notice of Early Termination will not be accepted or agreed to by WatServ, either implicitly or explicitly, until full payment
of all outstanding invoices is received.
d) WatServ is not obligated to provide Transition Assistance Services as per 3.4 until payment
of all outstanding invoices is received.
e) Customer may elect to cease use of services earlier than this notice period, but this does not relieve the customer of the
payment in full of the Notice Period.
f) Customer will cease to use all WatServ Services and remove any Customer Equipment prior to or on the last day of the Notice Period. Failure to do so will constitute an automatic renewal of this Contract on a month to month basis for all WatServ Services at a rate premium of thirty (30) percent higher than the current WatServ Service charges.

3.3 Termination of Agreement by Customer with cause
The Agreement may be terminated by the Customer immediately :

1) if Company becomes insolvent;
2) upon the commission of a material breach of the Agreement by Company which breach is not cured within forty five (45) days of written notice of such breach from the Customer;
3) if Company fails to meet the commitments or fulfill its obligations set forth in its Service Level agreements attached hereto and subject to a curative period not less than 30 days; or
4) if Company fails to provide the Services in any material respect for more than ninety six (96) consecutive hours or for more than seventy-two (144) hours in any calendar quarter, for an event other than a Force Majeure event.

3.4 Transition Assistance Services

1) Extension of Services. Customer may once request and Company shall extend the provision of Services for a period not to exceed 180 days beyond the effective date of termination or expiration of this Agreement at the price, terms and conditions in effect as of the date of the request.
2) Transfer Assistance Services. Commencing (i) ninety (90) days prior to the end of the then current Term or on such earlier date as Customer may request and continuing through the end of the Term, or (ii) upon any notice of termination or of non-renewal (including notice based upon breach or default by Customer) of the Term, and continuing through the effective date of the termination of the Term (as such effective date may be extended pursuant to this Section 3.4), Company shall:
a. Assist Customer in developing a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;
b. Perform consulting services as requested to assist in implementing the transition plan; and
c. Provide other technical assistance as requested by the Customer.
3) Notwithstanding anything to the contrary contained in the Agreement, Company shall provide such Transition Assistance Services with the cost to be borne solely by Customer. The Company will provide an Estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.

4. CONFIDENTIAL INFORMATION AND CUSTOMER DATA

4.1 Confidential Information
“Confidential Information” means any business or technical information of Company or Customer (including information of Customer, Customer’s affiliates, its or their equity holders, directors, officers, employees, prospects, or customers, or other third parties to whom Customer or its affiliates owe a duty of confidentiality) that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary. This Confidential Information may include, but is not limited to, information relating to the party’s or any of its affiliates’ business; operations’ organization; financial condition; plans; designs; marketing plans; business methods, customers and all similar and related information in whatever form . For the avoidance of doubt, user accounts and passwords providing administrative or user access to Customer’s systems shall constitute Confidential Information of Customer.

4.2 Confidentiality Obligations
Each party acknowledges that it may receive or have access to Confidential Information of the other party in the course of performance under the Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under the Agreement. Company shall not to disclose the Confidential Information of Customer to anyone except to Company’s Personnel who need access to the Confidential Information to perform the Services and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. Each party shall take all reasonable appropriate steps to safeguard Confidential Information and protect such information against disclosure, misuse, espionage, loss and theft.

4.3 Customer Data
Company shall establish and maintain safeguards against the disclosure, destruction, loss, misuse or alteration of Confidential Information and other information and data (including without limitation information relating to an identifiable person) of Customer and its affiliates (collectively, “Customer Data”) that are no less rigorous than those set forth in this Article 4 and as otherwise required by applicable data protection laws or regulations. Company shall notify Customer immediately in the event of (i) a breach of any data protection law or regulation, (ii) a breach in the security of any Customer Data, or (iii) a breach of any requirement under the Agreement with respect to Customer Data.

As between the parties, Customer shall be the sole and exclusive owner of Customer Data. Company shall use the Customer Data solely to perform Company’s obligations under the Agreement. Except as expressly permitted in the Agreement, Company shall not sell, assign, lease, disseminate, or otherwise dispose of the Customer Data or any part thereof to any other person, and Company shall not commercially exploit any part of the Customer Data. Company shall not assert or possess any property interest in, or any lien or other right against or to, any Customer Data.

During the Term of this Agreement and with the Customer not in material breach or default, notwithstanding anything to the contrary contained herein, Company shall make all Customer Data (complete and unaltered) available at any time to Customer and its authorized agents at no additional charge.

4.4 Return of Confidential Information and Customer Data
Upon the termination or expiration of the Agreement or at any time upon Customer’s request, (i) Company shall promptly deliver to the Customer all written records, work papers, manuals, notebooks, reports, documentation and other materials which contain Confidential Information of the Customer or Customer Data , no matter where such material is located and no matter what form such material may be in, and, if requested by the Customer, Company shall provide the Customer with written confirmation that all materials have been returned ; and (ii) Company shall remove all electronic copies of Confidential Information of the Customer and Customer Data from Company’s servers, applications, databases, and back-up systems and shall provide the Customer with written confirmation that all copies have been destroyed

5. INTELLECTUAL PROPERTY

5.1 Intellectual Property Rights .
For purposes of the Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secrets and know-how; trademarks; and patents and other industrial property rights; software; and all registrations , and applications thereof, now or hereafter in force in any jurisdiction throughout the world. To the extent that any Intellectual Property Rights owned by a party is used in connection to the Services provided under this Agreement, ownership of such Intellectual Property Rights shall remain the originator’s property.

5.2 Company Components .
Customer acknowledges that Company, prior to or during the course of the Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how outside of the Services (“Company Components”), some of which Company may use in performance of Services. The parties agree that Company shall retain exclusive ownership of all such Company Components, and shall be entitled to use any and all Company Components in connection with performance of Services for other parties.

6. PERSONNEL

Company personnel (including Company’s employees and employees of) performing Services for Customer under the Agreement (“Personnel”) may perform similar services for others during or after the Term. Company shall provide Personnel with the proper skill, education, training, background and other qualifications to perform Services in a competent and professional manner. Company shall use commercially reasonable efforts to reduce turnover in the Personnel performing Services. Company shall be and shall remain liable and responsible for the performance of Services hereunder by all Personnel and for the acts and omissions of all Personnel.

7. NON-SOLICITATION

Except as may otherwise be mutually agreed upon in writing by the parties, during the term of this Agreement and for a one-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.

8. USE OF SERVICES

Customer acknowledges that Company has no control over, and accepts no responsibility for the content of information passing over the network, through Category 6 cable connection through to the Network point of demarcation, through Network equipment, or residing on the Equipment (“Customer Content”) or that Company, in the provision of Services hereunder, will be provided, either directly or indirectly, nor seek access to Customer Content. Company shall make no effort nor have any obligation to validate any information passing over the network or Category 6 cable installed by Company for content, correctness, usability or for any other purpose.

9. NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Services, you warrant to Company that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or contravenes the Company Acceptable Use Policy ( https://watserv.com/Legal/Cloud/CloudAcceptableUsePolicy/) and Anti-SPAM Policy (https://watserv.com/legal/cloud/cloudcloudantispampolicy/) published on the Company web site from time to time.

You may not use the Services in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.

You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

Such unlawful or prohibited user will be considered a material breach of this Agreement subject to curative provisions.

10. DISPUTES

Without prejudice to either party’s other rights and remedies, in the event of a complaint or dispute (collectively referred to as the “Dispute”) arising out of or in connection with this Agreement, Company and the Customer shall operate the following escalation path to attempt to resolve such Dispute:

1) The Customer shall provide to the Company Account Manager details of the Dispute and the Company Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
2) In the event that within the 5 working days of the referral of the Dispute to the Company Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
3) In the event that within 5 working days of the referral of the Dispute to the Company director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.

Notwithstanding the provisions of this clause, either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, or neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.

11. MISCELLANEOUS

11.1 Force Majeure
Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, strike, lockout or other labor difficulty, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, or delays in transportation, or the failure of any telecommunication system of a third party upon which each party is reliant (collectively and separately “Force Majeure”). In no event shall lack of money constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.

11.2 Assignment and Subcontracting
Neither party shall transfer any of its rights or obligations under this Agreement without the express, prior written consent of the other party, provided such consent shall not be unreasonably withheld.

Company may sub-contract any non-material portion of its obligations, in whole or in part, under this Agreement to a Company Associated Company at any time without notice to the Customer, provided that in each case Company shall remain liable for the acts and omissions of any such sub-contractor.

The Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

11.3 Governing Law
The Agreement shall be governed by and construed in accordance with the laws:

1) of the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;
2) of the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations;

11.4 LIMITATIONS ON LIABILITY & DISCLAIMERS
WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THE Agreement, INCLUDING, WITHOUT LIMITATION, THE SCHEDULES HERETO, THE SERVICES ARE NOT GUARANTEED AND ARE PROVIDED “AS IS” AND THE PARTIES GIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO UNINTERRUPTED OR ERROR FREE SERVICE, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INDEMNIFICATION: EACH PARTY COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OTHER (AND THEIR RESPECTIVE SERVANTS, AGENTS, EMPLOYEES, INVITEES, OR REPRESENTATIVES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS, AND RESULTING LOSSES, EXPENSES, COSTS, AND DAMAGES OF WHATEVER NATURE (INCLUDING REASONABLE LEGAL EXPENSES) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY THE INDEMNIFYING PARTY.

LIMITATION ON LIABILITY: IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE OR EXEMPLARY OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) ANY DAMAGES WHATSOEVER RELATING TO LOSS OF USE OF SERVICES OR DATA.

EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD BE AN AMOUNT AWARDED NOT TO EXCEED THE LESSER OF (I) $200,000 OR (II) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER AND PRECEDING THE OCCURRENCES GIVING RISE TO SUCH LIABILITY.

11.5 Notice
Company reserves the right to revise, amend, or modify the Acceptable Use and Anti-SPAM policies at any time and in any manner.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : July 19, 2012
Version: 1.5

 

1. AGREEMENT

1.1 Applicability of Terms and Conditions
The terms and conditions contained herein and any attachments hereto shall be incorporated by reference to and are deemed to be included in and form part of the Agreement (the “Agreement”) between Waterloo Managed Software Services Ltd. (“Company”) and the customer named in the Agreement (the “Customer”) to which these schedules are attached.

1.2 Amendments and Interpretation
The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company. Any additional or any different terms proposed by the Customer or Company shall be of no effect unless expressly agreed to in writing by Company and the Customer. Prior dealings, usage of trade and course of conduct shall not be relevant to determine the meaning of the Agreement. Headings in the Agreement shall not be considered in the interpretation of the Agreement. All dollar amounts in the Agreement are United States or Canadian currency as stipulated in the attached Agreement.

1.3 Service Performance
Company shall provide the Services in accordance with the Service Levels and other Services requirements set forth in the Agreement. “Service Levels” means the standards for availability, reliability, quality, customer service, capacity, speed, timeliness, conformity, efficiency, effectiveness and responsiveness that Company shall be required to meet in its delivery of the Services, as set forth in the Agreement. In addition, Company shall provide the Services in a professional, diligent, and workmanlike manner, with due care and requisite skill, and (ii) in accordance with the generally accepted industry standards. Customer may require Company to correct the defective or nonconforming Services or to re-perform any defective or nonconforming Services. Customer may also require Company to take appropriate steps to ensure that future performance of the Services will be in accordance with the requirements of the Agreement. Company shall undertake any corrections or other

2. TERMS AND PAYMENT

2.1 Term
The Agreement shall be in effect for the term specified in the Agreement, and any renewal terms in accordance with Section 2.2, unless otherwise terminated as provided in Article 3 (collectively, the “Term”). The term commences on the Date of Agreement as defined in the Agreement.

2.2 Renewal
The Agreement shall automatically renew on a yearly basis thereafter, upon the same terms and conditions save for charges that shall be at the then current rates, unless and until terminated by either party upon ninety (90) days prior written notice thereof. In the event of an automatic renewal, rates will be increased by the greater of 3% or the generally accepted inflation rate for the Country from which the Services are delivered, for each year of the preceding Term where a cost adjustment has not already been made.

2.3 Non-Payment
If an undisputed invoice or the undisputed portion thereof is unpaid thirty (30) days after its payment due date, Company shall provide notice of late payment to the Customer, and in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, that the Customer will have fifteen (15) days from Customer’s receipt of such notice of late payment in which to settle outstanding undisputed accounts. If Customer fails to pay an undisputed invoice within fifteen (15) days from Customer’s receipt of such notice of late payment, Company reserves the right to suspend the supply of any or all Services to the Customer pursuant to the Agreement. Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve the Customer from liability to make the payments to Company required by the Agreement during the period that the provision of the Services to the Customer is suspended. The supply of Services pursuant to the Agreement shall resume upon payment by the Customer to Company of all outstanding undisputed invoices, and a $250 per server reinstitution charge.

If an invoice is unpaid 60 days after its payment due date, Company may, in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, terminate the Agreement by written notice to the Customer whereupon all payments not yet paid by the Customer to end of the Term provided for in the Agreement shall become immediately due and payable as liquidated damages, and not as a penalty. If Company is required to bring legal action to recover any amount due to Company by the Customer under the Agreement, the Customer agrees to pay to Company the amount of the reasonable legal fees and costs incurred by Company in such regards.

2.4 Interest
The Customer shall pay Company interest on all amounts not paid by the Customer to Company when due at the simple interest rate of 1.5 percent per month (18 percent per annum), before and after judgment, calculated and payable monthly. This obligation of the Customer to pay, or the payment of, interest on amounts not paid by the Customer to Company when due shall not prejudice the right of Company to immediate payment of amounts due to Company.

2.5 Taxes
All applicable taxes relating to the sale or use of the Services, including but not limited to, municipal, state or federal sales or use taxes in the United States or Goods and Services Tax and Provincial Sales Tax in Canada, shall, unless otherwise specified, be charged in addition to specified charges for Services provided herein.

Where Customer self reports or self assesses, Customer shall remit all sales and use taxes as required by law or statute, and indemnifies Company against any claims for incorrect or unpaid monies.

At no time will either Party, directly or indirectly, be responsible for taxes based on income, assets or personnel of the other .

3. TERMINATION

3.1 Termination of Agreement by Company
Company may by written notice to the Customer terminate the Agreement :

1) if the Customer commits a material breach of the Agreement , for which breach is not cured within forty five (45) days of written notice of such breach by Company to the Customer; or;
2) if the Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or bankruptcy trustee appointed for it or becomes a debtor subject to the provisions of any creditor arrangement, winding up, bankruptcy, or insolvency laws;
3) if this Agreement is terminated by Company anytime before the end of the Term, the customer will be liable for liquidated damages amounts equal to 180 days of Service;

If this Agreement is terminated by Company anytime before the end of the Term for reasons set forth in this paragraph, then all payments under the Agreement not yet paid to Company by the Customer for the balance of what would have been the Term of the Agreement shall become immediately due and payable by the Customer to Company as liquidated damages, and not as a penalty.

3.2 Termination of Agreement by Customer without cause
The Customer may terminate the Agreement prior to expiry of the Term for convenience and without cause with written notice to Company with the following constraints:

1) Not within the first 12 months whatsoever;
2) If after the first 12 months, notice shall be not less than 50% of the remaining contract term. Customer may elect to cease use of services earlier than this notice period, but this does not relieve the customer of the payment in full of this notice period. Customer will be charged for 50% of the notice period services at the time of notice, due immediately, with the remaining 50% of the notice period services to be billed monthly until the notice period charges have been paid.

3.3 Termination of Agreement by Customer with cause
The Agreement may be terminated by the Customer immediately :

1) if Company becomes insolvent;
2) upon the commission of a material breach of the Agreement by Company which breach is not cured within forty five (45) days of written notice of such breach from the Customer;
3) if Company fails to meet the commitments or fulfill its obligations set forth in its Service Level agreements attached hereto and subject to a curative period not less than 30 days; or
4) if Company fails to provide the Services in any material respect for more than ninety six (96) consecutive hours or for more than seventy-two (144) hours in any calendar quarter, for an event other than a Force Majeure event.

3.4 Transition Assistance Services

1) Extension of Services. Customer may once request and Company shall extend the provision of Services for a period not to exceed 180 days beyond the effective date of termination or expiration of this Agreement at the price, terms and conditions in effect as of the date of the request.
2) Transfer Assistance Services. Commencing (i) ninety (90) days prior to the end of the then current Term or on such earlier date as Customer may request and continuing through the end of the Term, or (ii) upon any notice of termination or of non-renewal (including notice based upon breach or default by Customer) of the Term, and continuing through the effective date of the termination of the Term (as such effective date may be extended pursuant to this Section 3.4), Company shall:
a. Assist Customer in developing a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;
b. Perform consulting services as requested to assist in implementing the transition plan; and
c. Provide other technical assistance as requested by the Customer.
3) Notwithstanding anything to the contrary contained in the Agreement, Company shall provide such Transition Assistance Services with the cost to be borne solely by Customer. The Company will provide an Estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.

4. CONFIDENTIAL INFORMATION AND CUSTOMER DATA

4.1 Confidential Information
“Confidential Information” means any business or technical information of Company or Customer (including information of Customer, Customer’s affiliates, its or their equity holders, directors, officers, employees, prospects, or customers, or other third parties to whom Customer or its affiliates owe a duty of confidentiality) that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary. This Confidential Information may include, but is not limited to, information relating to the party’s or any of its affiliates’ business; operations’ organization; financial condition; plans; designs; marketing plans; business methods, customers and all similar and related information in whatever form . For the avoidance of doubt, user accounts and passwords providing administrative or user access to Customer’s systems shall constitute Confidential Information of Customer.

4.2 Confidentiality Obligations
Each party acknowledges that it may receive or have access to Confidential Information of the other party in the course of performance under the Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under the Agreement. Company shall not to disclose the Confidential Information of Customer to anyone except to Company’s Personnel who need access to the Confidential Information to perform the Services and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. Each party shall take all reasonable appropriate steps to safeguard Confidential Information and protect such information against disclosure, misuse, espionage, loss and theft.

4.3 Customer Data
Company shall establish and maintain safeguards against the disclosure, destruction, loss, misuse or alteration of Confidential Information and other information and data (including without limitation information relating to an identifiable person) of Customer and its affiliates (collectively, “Customer Data”) that are no less rigorous than those set forth in this Article 4 and as otherwise required by applicable data protection laws or regulations. Company shall notify Customer immediately in the event of (i) a breach of any data protection law or regulation, (ii) a breach in the security of any Customer Data, or (iii) a breach of any requirement under the Agreement with respect to Customer Data.

As between the parties, Customer shall be the sole and exclusive owner of Customer Data. Company shall use the Customer Data solely to perform Company’s obligations under the Agreement. Except as expressly permitted in the Agreement, Company shall not sell, assign, lease, disseminate, or otherwise dispose of the Customer Data or any part thereof to any other person, and Company shall not commercially exploit any part of the Customer Data. Company shall not assert or possess any property interest in, or any lien or other right against or to, any Customer Data.

During the Term of this Agreement and with the Customer not in material breach or default, notwithstanding anything to the contrary contained herein, Company shall make all Customer Data (complete and unaltered) available at any time to Customer and its authorized agents at no additional charge.

4.4 Return of Confidential Information and Customer Data
Upon the termination or expiration of the Agreement or at any time upon Customer’s request, (i) Company shall promptly deliver to the Customer all written records, work papers, manuals, notebooks, reports, documentation and other materials which contain Confidential Information of the Customer or Customer Data , no matter where such material is located and no matter what form such material may be in, and, if requested by the Customer, Company shall provide the Customer with written confirmation that all materials have been returned ; and (ii) Company shall remove all electronic copies of Confidential Information of the Customer and Customer Data from Company’s servers, applications, databases, and back-up systems and shall provide the Customer with written confirmation that all copies have been destroyed

5. INTELLECTUAL PROPERTY

5.1 Intellectual Property Rights .
For purposes of the Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secrets and know-how; trademarks; and patents and other industrial property rights; software; and all registrations , and applications thereof, now or hereafter in force in any jurisdiction throughout the world. To the extent that any Intellectual Property Rights owned by a party is used in connection to the Services provided under this Agreement, ownership of such

5.2 Company Components .
Customer acknowledges that Company, prior to or during the course of the Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how outside of the Services (“Company Components”), some of which Company may use in performance of Services. The parties agree that Company shall retain exclusive ownership of all such Company Components, and shall be entitled to use any and all Company Components in connection with performance of Services for other parties.

6. PERSONNEL

Company personnel (including Company’s employees and employees of) performing Services for Customer under the Agreement (“Personnel”) may perform similar services for others during or after the Term. Company shall provide Personnel with the proper skill, education, training, background and other qualifications to perform Services in a competent and professional manner. Company shall use commercially reasonable efforts to reduce turnover in the Personnel performing Services. Company shall be and shall remain liable and responsible for the performance of Services hereunder by all Personnel and for the acts and omissions of all Personnel.

7. NON-SOLICITATION

Except as may otherwise be mutually agreed upon in writing by the parties, during the term of this Agreement and for a one-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.

8. USE OF SERVICES

Customer acknowledges that Company has no control over, and accepts no responsibility for the content of information passing over the network, through Category 6 cable connection through to the Network point of demarcation, through Network equipment, or residing on the Equipment (“Customer Content”) or that Company, in the provision of Services hereunder, will be provided, either directly or indirectly, nor seek access to Customer Content. Company shall make no effort nor have any obligation to validate any information passing over the network or Category 6 cable installed by Company for content, correctness, usability or for any other purpose.

9. NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Services, you warrant to Company that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or contravenes the Company Acceptable Use Policy ( https://watserv.com/Legal/Cloud/CloudAcceptableUsePolicy/) and Anti-SPAM Policy (https://watserv.com/legal/cloud/cloudcloudantispampolicy/) published on the Company web site from time to time.

You may not use the Services in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.

You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

Such unlawful or prohibited user will be considered a material breach of this Agreement subject to curative provisions.

10. DISPUTES

Without prejudice to either party’s other rights and remedies, in the event of a complaint or dispute (collectively referred to as the “Dispute”) arising out of or in connection with this Agreement, Company and the Customer shall operate the following escalation path to attempt to resolve such Dispute:

1) The Customer shall provide to the Company Account Manager details of the Dispute and the Company Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
2) In the event that within the 5 working days of the referral of the Dispute to the Company Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
3) In the event that within 5 working days of the referral of the Dispute to the Company director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.

Notwithstanding the provisions of this clause, either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, or neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.

11. MISCELLANEOUS

11.1 Force Majeure
Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, strike, lockout or other labor difficulty, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, or delays in transportation, or the failure of any telecommunication system of a third party upon which each party is reliant (collectively and separately “Force Majeure”). In no event shall lack of money constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.

11.2 Assignment and Subcontracting
Neither party shall transfer any of its rights or obligations under this Agreement without the express, prior written consent of the other party, provided such consent shall not be unreasonably withheld.

Company may sub-contract any non-material portion of its obligations, in whole or in part, under this Agreement to a Company Associated Company at any time without notice to the Customer, provided that in each case Company shall remain liable for the acts and omissions of any such sub-contractor.

The Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

11.3 Governing Law
The Agreement shall be governed by and construed in accordance with the laws:

1) of the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;
2) of the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations;

11.4 LIMITATIONS ON LIABILITY & DISCLAIMERS
WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THE Agreement, INCLUDING, WITHOUT LIMITATION, THE SCHEDULES HERETO, THE SERVICES ARE NOT GUARANTEED AND ARE PROVIDED “AS IS” AND THE PARTIES GIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO UNINTERRUPTED OR ERROR FREE SERVICE, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INDEMNIFICATION: EACH PARTY COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OTHER (AND THEIR RESPECTIVE SERVANTS, AGENTS, EMPLOYEES, INVITEES, OR REPRESENTATIVES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS, AND RESULTING LOSSES, EXPENSES, COSTS, AND DAMAGES OF WHATEVER NATURE (INCLUDING REASONABLE LEGAL EXPENSES) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY THE INDEMNIFYING PARTY.

LIMITATION ON LIABILITY: IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE OR EXEMPLARY OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) ANY DAMAGES WHATSOEVER RELATING TO LOSS OF USE OF SERVICES OR DATA.

EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD BE AN AMOUNT AWARDED NOT TO EXCEED THE LESSER OF (I) $200,000 OR (II) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER AND PRECEDING THE OCCURRENCES GIVING RISE TO SUCH LIABILITY.

11.5 Notice
Company reserves the right to revise, amend, or modify the Acceptable Use and Anti-SPAM policies at any time and in any manner.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.

Cloud Computing Terms and Conditions (“T&Cs”)
Updated : February 1, 2010
Version: 1.4

 

1. AGREEMENT

1.1 Applicability of Terms and Conditions
The terms and conditions contained herein and any attachments hereto shall be incorporated by reference to and are deemed to be included in and form part of the Agreement (the “Agreement”) between Waterloo Managed Software Services Ltd. (“Company”) and the customer named in the Agreement (the “Customer”) to which these schedules are attached.

1.2 Amendments and Interpretation
The Agreement may only be amended by a written Agreement signed by the authorized representatives of the Customer and Company. Any additional or any different terms proposed by the Customer or Company shall be of no effect unless expressly agreed to in writing by Company and the Customer. Prior dealings, usage of trade and course of conduct shall not be relevant to determine the meaning of the Agreement. Headings in the Agreement shall not be considered in the interpretation of the Agreement. All dollar amounts in the Agreement are United States or Canadian currency as stipulated in the attached Agreement.

1.3 Service Performance
Company shall provide the Services in accordance with the Service Levels and other Services requirements set forth in the Agreement. “Service Levels” means the standards for availability, reliability, quality, customer service, capacity, speed, timeliness, conformity, efficiency, effectiveness and responsiveness that Company shall be required to meet in its delivery of the Services, as set forth in the Agreement. In addition, Company shall provide the Services in a professional, diligent, and workmanlike manner, with due care and requisite skill, and (ii) in accordance with the generally accepted industry standards. Customer may require Company to correct the defective or nonconforming Services or to re-perform any defective or nonconforming Services. Customer may also require Company to take appropriate steps to ensure that future performance of the Services will be in accordance with the requirements of the Agreement. Company shall undertake any corrections or other

2. TERMS AND PAYMENT

2.1 Term
The Agreement shall be in effect for the term specified in the Agreement, and any renewal terms in accordance with Section 2.2, unless otherwise terminated as provided in Article 3 (collectively, the “Term”). The term commences on the Date of Agreement as defined in the Agreement.

2.2 Renewal
The Agreement shall automatically renew on a yearly basis thereafter, upon the same terms and conditions save for charges that shall be at the then current rates, unless and until terminated by either party upon ninety (90) days prior written notice thereof.

2.3 Non‑Payment
If an undisputed invoice or the undisputed portion thereof is unpaid thirty (30) days after its payment due date, Company shall provide notice of late payment to the Customer, and in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, that the Customer will have fifteen (15) days from Customer’s receipt of such notice of late payment in which to settle outstanding undisputed accounts. If Customer fails to pay an undisputed invoice within fifteen (15) days from Customer’s receipt of such notice of late payment, Company reserves the right to suspend the supply of any or all Services to the Customer pursuant to the Agreement. Monthly charges shall continue to accrue during any such suspension of the supply of Services and shall not necessarily constitute a termination of the Agreement or shall not relieve the Customer from liability to make the payments to Company required by the Agreement during the period that the provision of the Services to the Customer is suspended. The supply of Services pursuant to the Agreement shall resume upon payment by the Customer to Company of all outstanding undisputed invoices, and a $250 per server reinstitution charge.

If an invoice is unpaid 60 days after its payment due date, Company may, in addition and without prejudice to all other rights and remedies under the Agreement and at law and in equity, terminate the Agreement by written notice to the Customer whereupon all payments not yet paid by the Customer to end of the Term provided for in the Agreement shall become immediately due and payable as liquidated damages, and not as a penalty. If Company is required to bring legal action to recover any amount due to Company by the Customer under the Agreement, the Customer agrees to pay to Company the amount of the reasonable legal fees and costs incurred by Company in such regards.

2.4 Interest
The Customer shall pay Company interest on all amounts not paid by the Customer to Company when due at the simple interest rate of 1.5 percent per month (18 percent per annum), before and after judgment, calculated and payable monthly. This obligation of the Customer to pay, or the payment of, interest on amounts not paid by the Customer to Company when due shall not prejudice the right of Company to immediate payment of amounts due to Company.

2.5 Taxes
All applicable taxes relating to the sale or use of the Services, including but not limited to, municipal, state or federal sales or use taxes in the United States or Goods and Services Tax and Provincial Sales Tax in Canada, shall, unless otherwise specified, be charged in addition to specified charges for Services provided herein.

Where Customer self reports or self assesses, Customer shall remit all sales and use taxes as required by law or statute, and indemnifies Company against any claims for incorrect or unpaid monies.

At no time will either Party, directly or indirectly, be responsible for taxes based on income, assets or personnel of the other .

3. TERMINATION

3.1 Termination of Agreement by Company
Company may by written notice to the Customer terminate the Agreement :

1) if the Customer commits a material breach of the Agreement , for which breach is not cured within forty five (45) days of written notice of such breach by Company to the Customer; or;
2) if the Customer becomes insolvent, makes an assignment for the benefit of its creditors, has a liquidator, receiver, or bankruptcy trustee appointed for it or becomes a debtor subject to the provisions of any creditor arrangement, winding up, bankruptcy, or insolvency laws;
3) if this Agreement is terminated by Company anytime before the end of the Term, the customer will be liable for liquidated damages amounts equal to 180 days of Service;

If this Agreement is terminated by Company anytime before the end of the Term for reasons set forth in this paragraph, then all payments under the Agreement not yet paid to Company by the Customer for the balance of what would have been the Term of the Agreement shall become immediately due and payable by the Customer to Company as liquidated damages, and not as a penalty.

3.2 Termination of Agreement by Customer without cause
The Customer may terminate the Agreement prior to expiry of the Term for convenience and without cause with written notice to Company with the following constraints:

1) Not within the first 12 months whatsoever;
2) If after the first 12 months, notice shall be not less than 50% of the remaining contract term.

3.3 Termination of Agreement by Customer with cause
The Agreement may be terminated by the Customer immediately :

1) if Company becomes insolvent;
2) upon the commission of a material breach of the Agreement by Company which breach is not cured within forty five (45) days of written notice of such breach from the Customer;
3) if Company fails to meet the commitments or fulfill its obligations set forth in its Service Level agreements attached hereto and subject to a curative period not less than 30 days; or
4) if Company fails to provide the Services in any material respect for more than ninety six (96) consecutive hours or for more than seventy-two (144) hours in any calendar quarter, for an event other than a Force Majeure event.

3.4 Transition Assistance Services

1) Extension of Services. Customer may once request and Company shall extend the provision of Services for a period not to exceed 180 days beyond the effective date of termination or expiration of this Agreement at the price, terms and conditions in effect as of the date of the request.
2) Transfer Assistance Services. Commencing (i) ninety (90) days prior to the end of the then current Term or on such earlier date as Customer may request and continuing through the end of the Term, or (ii) upon any notice of termination or of non-renewal (including notice based upon breach or default by Customer) of the Term, and continuing through the effective date of the termination of the Term (as such effective date may be extended pursuant to this Section 3.4), Company shall:
a. Assist Customer in developing a written transition plan for the transition of the Services to Customer or Customer’s designee, which plan shall include capacity planning, facilities planning, telecommunications planning and other planning necessary to effect the transition;
b. Perform consulting services as requested to assist in implementing the transition plan; and
c. Provide other technical assistance as requested by the Customer.
3) Notwithstanding anything to the contrary contained in the Agreement, Company shall provide such Transition Assistance Services with the cost to be borne solely by Customer. The Company will provide an Estimate to provide such Services which, upon Customer acceptance, will require prepayment from the Customer.

4. CONFIDENTIAL INFORMATION AND CUSTOMER DATA

4.1 Confidential Information
“Confidential Information” means any business or technical information of Company or Customer (including information of Customer, Customer’s affiliates, its or their equity holders, directors, officers, employees, prospects, or customers, or other third parties to whom Customer or its affiliates owe a duty of confidentiality) that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary. This Confidential Information may include, but is not limited to, information relating to the party’s or any of its affiliates’ business; operations’ organization; financial condition; plans; designs; marketing plans; business methods, customers and all similar and related information in whatever form . For the avoidance of doubt, user accounts and passwords providing administrative or user access to Customer’s systems shall constitute Confidential Information of Customer.

4.2 Confidentiality Obligations
Each party acknowledges that it may receive or have access to Confidential Information of the other party in the course of performance under the Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under the Agreement. Company shall not to disclose the Confidential Information of Customer to anyone except to Company’s Personnel who need access to the Confidential Information to perform the Services and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. Each party shall take all reasonable appropriate steps to safeguard Confidential Information and protect such information against disclosure, misuse, espionage, loss and theft.

4.3 Customer Data
Company shall establish and maintain safeguards against the disclosure, destruction, loss, misuse or alteration of Confidential Information and other information and data (including without limitation information relating to an identifiable person) of Customer and its affiliates (collectively, “Customer Data”) that are no less rigorous than those set forth in this Article 4 and as otherwise required by applicable data protection laws or regulations. Company shall notify Customer immediately in the event of (i) a breach of any data protection law or regulation, (ii) a breach in the security of any Customer Data, or (iii) a breach of any requirement under the Agreement with respect to Customer Data.

As between the parties, Customer shall be the sole and exclusive owner of Customer Data. Company shall use the Customer Data solely to perform Company’s obligations under the Agreement. Except as expressly permitted in the Agreement, Company shall not sell, assign, lease, disseminate, or otherwise dispose of the Customer Data or any part thereof to any other person, and Company shall not commercially exploit any part of the Customer Data. Company shall not assert or possess any property interest in, or any lien or other right against or to, any Customer Data.

During the Term of this Agreement and with the Customer not in material breach or default, notwithstanding anything to the contrary contained herein, Company shall make all Customer Data (complete and unaltered) available at any time to Customer and its authorized agents at no additional charge.

4.4 Return of Confidential Information and Customer Data
Upon the termination or expiration of the Agreement or at any time upon Customer’s request, (i) Company shall promptly deliver to the Customer all written records, work papers, manuals, notebooks, reports, documentation and other materials which contain Confidential Information of the Customer or Customer Data , no matter where such material is located and no matter what form such material may be in, and, if requested by the Customer, Company shall provide the Customer with written confirmation that all materials have been returned ; and (ii) Company shall remove all electronic copies of Confidential Information of the Customer and Customer Data from Company’s servers, applications, databases, and back-up systems and shall provide the Customer with written confirmation that all copies have been destroyed

5. INTELLECTUAL PROPERTY

5.1 Intellectual Property Rights .
For purposes of the Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secrets and know-how; trademarks; and patents and other industrial property rights; software; and all registrations , and applications thereof, now or hereafter in force in any jurisdiction throughout the world. To the extent that any Intellectual Property Rights owned by a party is used in connection to the Services provided under this Agreement, ownership of such

5.2 Company Components .
Customer acknowledges that Company, prior to or during the course of the Agreement, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how outside of the Services (“Company Components”), some of which Company may use in performance of Services. The parties agree that Company shall retain exclusive ownership of all such Company Components, and shall be entitled to use any and all Company Components in connection with performance of Services for other parties.

6. PERSONNEL

Company personnel (including Company’s employees and employees of) performing Services for Customer under the Agreement (“Personnel”) may perform similar services for others during or after the Term. Company shall provide Personnel with the proper skill, education, training, background and other qualifications to perform Services in a competent and professional manner. Company shall use commercially reasonable efforts to reduce turnover in the Personnel performing Services. Company shall be and shall remain liable and responsible for the performance of Services hereunder by all Personnel and for the acts and omissions of all Personnel.

7. NON-SOLICITATION

Except as may otherwise be mutually agreed upon in writing by the parties, during the term of this Agreement and for a one-year period thereafter, neither party shall directly or indirectly, solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. The parties agree that any breach of this section would damage the other party in the amount difficult to ascertain with certainty, and that in the event that either party breaches this provision resulting in the other party losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the non-breaching party) of the applicable employee or independent contractor.

8. USE OF SERVICES

Customer acknowledges that Company has no control over, and accepts no responsibility for the content of information passing over the network, through Category 6 cable connection through to the Network point of demarcation, through Network equipment, or residing on the Equipment (“Customer Content”) or that Company, in the provision of Services hereunder, will be provided, either directly or indirectly, nor seek access to Customer Content. Company shall make no effort nor have any obligation to validate any information passing over the network or Category 6 cable installed by Company for content, correctness, usability or for any other purpose.

9. NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Services, you warrant to Company that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices or contravenes the Company Acceptable Use Policy ( https://watserv.com/Legal/Cloud/CloudAcceptableUsePolicy.aspx) and Anti-SPAM Policy (https://watserv.com/Legal/Cloud/CloudAntiSpamPolicy.aspx) published on the Company web site from time to time.

You may not use the Services in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services.

You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

Such unlawful or prohibited user will be considered a material breach of this Agreement subject to curative provisions.

10. DISPUTES

Without prejudice to either party’s other rights and remedies, in the event of a complaint or dispute (collectively referred to as the “Dispute”) arising out of or in connection with this Agreement, Company and the Customer shall operate the following escalation path to attempt to resolve such Dispute:

1) The Customer shall provide to the Company Account Manager details of the Dispute and the Company Account Manager shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.
2) In the event that within the 5 working days of the referral of the Dispute to the Company Account Manager the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s director in charge of the business unit to which the Dispute most closely relates and such director shall attempt to resolve such Dispute.
3) In the event that within 5 working days of the referral of the Dispute to the Company director pursuant to (b) above the Customer is not satisfied that the Dispute is being resolved, the Customer may request that the Dispute is referred to Company’s Managing Director, who shall attempt to resolve the Dispute to the satisfaction of the Customer and Company.

Notwithstanding the provisions of this clause, either party may commence proceedings for the resolution of any Dispute before any court of competent jurisdiction, or neither party shall be under any obligation to continue negotiations for any settlement of any Dispute if the Dispute concerned is referred to alternative dispute resolution or the courts.

11. MISCELLANEOUS

11.1 Force Majeure
Neither party nor its employees, officers, directors or representatives shall be liable for failure to perform or delay in performance due to anything beyond the reasonable control of the other party, including, without restricting the generality of the foregoing, any fire, flood, natural disaster or other act of God, strike, lockout or other labor difficulty, the act of any governmental authority, fuel or energy shortage, unavailability of materials or equipment, or delays in transportation, or the failure of any telecommunication system of a third party upon which each party is reliant (collectively and separately “Force Majeure”). In no event shall lack of money constitute Force Majeure. In the event of delay in performance due to Force Majeure, the date for delivery or time for completion (but not a date for payment) will be extended by a period of time reasonably necessary to overcome the effect of such delay.

11.2 Assignment and Subcontracting
Neither party shall transfer any of its rights or obligations under this Agreement without the express, prior written consent of the other party, provided such consent shall not be unreasonably withheld.

Company may sub-contract any non-material portion of its obligations, in whole or in part, under this Agreement to a Company Associated Company at any time without notice to the Customer, provided that in each case Company shall remain liable for the acts and omissions of any such sub-contractor.

The Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

11.3 Governing Law
The Agreement shall be governed by and construed in accordance with the laws:

1) of the Province of Ontario; and the parties agree that the Courts of the Province of Ontario will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company Canada locations;
2) of the State of Delaware; and the parties agree that the Courts of the State of Delaware will have exclusive jurisdiction to determine all disputes and claims arising between any Parties in relation to the Agreement for Agreements signed with or services delivered from Company USA locations;

11.4 LIMITATIONS ON LIABILITY & DISCLAIMERS
WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THE Agreement, INCLUDING, WITHOUT LIMITATION, THE SCHEDULES HERETO, THE SERVICES ARE NOT GUARANTEED AND ARE PROVIDED “AS IS” AND THE PARTIES GIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO UNINTERRUPTED OR ERROR FREE SERVICE, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INDEMNIFICATION: EACH PARTY COVENANTS AND AGREES TO INDEMNIFY AND HOLD HARMLESS EACH OTHER (AND THEIR RESPECTIVE SERVANTS, AGENTS, EMPLOYEES, INVITEES, OR REPRESENTATIVES) FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS AND DEMANDS, AND RESULTING LOSSES, EXPENSES, COSTS, AND DAMAGES OF WHATEVER NATURE (INCLUDING REASONABLE LEGAL EXPENSES) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY THE INDEMNIFYING PARTY.

LIMITATION ON LIABILITY: IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) PUNITIVE OR EXEMPLARY OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (C) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (D) ANY DAMAGES WHATSOEVER RELATING TO LOSS OF USE OF SERVICES OR DATA.

EACH PARTY’S MAXIMUM LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, DURING ANY 12-MONTH PERIOD BE AN AMOUNT AWARDED NOT TO EXCEED THE LESSER OF (I) $200,000 OR (II) THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT (EXCLUDING HARDWARE PURCHASE AND SOFTWARE RENTAL FEES) DURING THE MOST RECENT 12-MONTH PERIOD DURING WHICH FEES WERE PAID HEREUNDER AND PRECEDING THE OCCURRENCES GIVING RISE TO SUCH LIABILITY.

11.5 Notice
Company reserves the right to revise, amend, or modify the Acceptable Use and Anti-SPAM policies at any time and in any manner.

Notice of any revision, amendment, or modification will be posted as an update to the affected policy web pages.