The terms and conditions contained in this document (the “General Terms”) cover all agreements for provision of Goods, Services, and/or anything else under Client Agreements entered into between the Client and NCI Northern Computer Inc. (the “Company”). By contracting with the Company under a Client Agreement, a Client will be regarded as having agreed to the provision of Services and/or Goods being governed by these General Terms, as well as any terms and conditions for third-party services implemented and/or managed for the Client via the Company. The General Terms are incorporated into and form part of the Managed Services Agreement (the “MSA”), the Project Services Agreement (the “PSA”), and any other agreement entered into between the Company and the Client (collectively, a “Client Agreement”), as the case may be, and if any inconsistencies exist between the Client Agreement and the General Terms, the General Terms will prevail.
Your attention is drawn in particular to clauses rendered in bold or capitalized letters in these terms. This section is a summary for your convenience and does not form part of the Agreement between you and the Company. It is your responsibility to read all clauses.
- You agree to provide the Company with true and correct information in order to provide Services to you, and you agree to give the Company permission to process your personal information.
- You acknowledge that these Terms and Conditions may change and agree that upon notification of changes you will be given the opportunity to continue or terminate this agreement.
- You take responsibility for the evaluation and selection of your choice of Goods and/or Service/s according to your needs.
- You agree that either yourself or the Company may cancel any Client Agreement by giving the other 30 days written Notice unless otherwise specified in the separate Managed Services Agreement, Project Services Agreement or other Client Agreement.
- You agree to limit the Company’s liability and indemnify the Company for various acts or omissions.
- The Company and the Client both agree to not disclose any confidential information about each other. The Company agrees to take all efforts to ensure that the Client’s data remains private.
“Acceptable Use Policy” means a document that defines the accepted behaviour of users of a particular Service offered by the Company; also referred to as “AUP”.
“Additional Services” means any services not included in the Services and for which there is an additional charge over and above the Fee;
“Agreement” means these General Terms, the Acceptable Use Policy, and the terms of any other Client Agreement entered into between the Company and the Client;
“Application” means a request for initiation of a Service(s) and/or provision of Good(s).
“Business Day” means any day other than a Saturday, a Sunday or a public holiday in Canada.
“Business Hour” means a period of 60 minutes between the hours of 08h00 and 16h30 Pacific Standard Time, on a Business Day.
“Change Order” means services and product that are added or deleted from the original scope of work on a Client Agreement.
“Client” is the party described as such on any Application or Client Agreement executed between such Client and the Company; also referred to as “you” or “your”.
“Client Agreement” means the agreement entered into, and amended from time to time, between the Client and the Company, including, without limitation, the Managed Services Agreement, the Project Services Agreement, any Change Orders, and/or any other agreement, whether written or oral, between the Company and the Client;
“Client Data” means Data that is:
- transmitted to the Client using the Company System;
- stored by the Client on the Company System (or on the Client Systems as the case may be);
iii. transmitted by the Client via the Company System; or
- transmitted in the day-to-day utilization of a Good or Service.
“Client Equipment” means any equipment, wherever located, that is owned by the Client, including, without limitation servers, peripherals, routers, switches, software, Databases, data cables, and uninterruptible power supplies.
“Client System” means all equipment, software services and monitoring applications that the Company has agreed to provide services for.
“Company” means NCI Northern Computer Inc.
“Company System” means equipment operated together as a system by the Company to provide any Service, including without limitation communication services, servers, peripherals, routers, switches, software, databases, cables, generators, and uninterruptible power supplies.
“Company Website” or “the Website” means the Internet website published at the URL “northerncomputer.ca“ or another URL that the Company notifies the Client of from time to time, and all pages and documents accessible via this website.
“Data” means electronic representations of information in any form.
“Database” means a collection of related data including, but not limited to, text, images, sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together.
“Emergency Maintenance” means maintenance to the Company System or Client System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Communication Services, or substantial loss to the Company, the Client, or any third party.
“Fee” or “Fees” is the amount payable to the Company by the Client in relation to the provision of Goods and/or Services, and will be either as noted in the Client Agreement, or charged in accordance with the Company’s prevailing rates for the particular Service or Good requested by the Client;
“General Terms” means this document.
“Good” or “Goods” means any and all goods to be provided by the Company to the Client in accordance with a Client Agreement, including, without limitation, equipment, hardware, and third-party software.
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced service provider providing similar services to those provided under the Client Agreement. Such a service provider would seek in good faith to comply with its contractual obligations, and with all applicable laws, codes of professional conduct, relevant codes of practice, relevant standards, and all conditions of planning and other consents.
“Intellectual Property Rights” means patents, registered designs, trademarks (whether registered or otherwise), copyright, trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions, that grant similar rights.
“Malicious Code” means anything that contains any computer software routine or code intended to:
- allow unauthorized access or use of a computer system by any party; or
- disable, damage, erase, disrupt or impair the normal operation of a computer system; and
iii. includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
“MSA” means the Managed Services Agreement entered into between the Company and the Client, if applicable;
“Notice” means written notice given in accordance with section 25 hereof;
“Party” means either the Client or the Company, as appropriate, and “Parties” means both the Client and the Company;
“PSA” means the Project Services Agreement entered into between the Company and the Client, if applicable;
“Representative” means an individual person appointed by either the Company or the Client to be able to make binding decisions on behalf of the Client or the Company, as the case may be.
“Service” or “Services” are the services provided by the Company and as requested by the Client, as further detailed in the MSA, the PSA, or other Client Agreement, as the case may be;
“Software” means any computer program (whether source code or object code), any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.
- STRUCTURE OF THE AGREEMENT
4.1. Specific Terms. The Goods and Services that the Company will provide to the Client will be described in the Client Agreement and any Change Orders made thereto.
4.2. General Terms. These General Terms apply to the provision of all Goods and Services provided under any Client Agreement, as well as to any Change Order thereto.
4.3. Ambiguity. If there is any ambiguity between any of these documents, they will be interpreted so that the General Terms shall prevail.
- CLIENT’S COMMITMENTS
The Client agrees to the following:
(a) The Client confirms that all statements made and information submitted to the Company are true and correct. The Company reserves the right to request proof of any facts or claims. The Client also commits to providing the Company with necessary information required in the provision of the selected Goods and/or Services, and (where applicable) consent to the use or sharing of this information with third parties to comply with regulatory conditions within the guidelines of applicable privacy legislation.
(b) The Client (or the Client’s agent) certifies that the Client is above the age of 18 years, has full contractual capacity and (in the case of an agent) is duly authorized by the Client to contract on the Client’s behalf.
(c) If the Client or its staff engages in behaviour that is in contravention of the Acceptable Use Policy or may be considered offensive to the Company or its staff, the Company reserves the right to suspend or terminate the Client’s Services, irrespective of the form and medium of this abuse.
(d) The Client agrees that the Company has the right to remove any content hosted by a Client which it considers illegal, contrary to its internal policies and procedures or the AUP, or for which it has received a takedown notice.
(e) The Client shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of the Client Agreement to any third party unless consented to in writing by the Company.
- COMPANY COMMITMENTS
The Company agrees to the following:
(a) Act as an independent contractor and not as agent of the Client.
(b) Furnish Company employees who have the skills required for the job and furnish to such employees the specific name of the person to whom they are directed by at the Client premises.
(c) Ensure that Client information is kept confidential and to conduct the Services in compliance with section 16 (Mutual Confidentiality and Non-Disclosure) of these General Terms.
(d) Maintain timeline goals, as agreed upon in the Client Agreement, and provide updates, as required, regarding the status to the Client’s Representative. If changes or delays arise, the Company will notify the Client’s Representative and shall complete a Change Order to outline the impact of the changes.
(e) Ensure any work outside of the scope of that outlined in the Client Agreement is contained within an approved, accepted Change Order.
(f) Direct Company employees to comply with the rules, regulations, policies, and procedures of the Client, including, but not limited to fire protection, safety, and security.
(g) Schedule Company employees to work in coordination with the business needs of the Client.
- TERMS SUBJECT TO CHANGE
(a) These General Terms shall be effective initially on the day that is 5 Business Days after the Client receives Notice of, and a copy of, these General Terms.
(b) If the Client objects to the implementation of the General Terms, it may, within 5 Business Days of receiving the amended General Terms, terminate the Client Agreement, and the termination will become effective at the end of the normal notice period. If the Client does not notify the Company of any objections to the General Terms within 5 Business Days of receiving Notice and a copy of the General Terms, the Client will be deemed to have accepted and agreed to the General Terms.
(c) The Company may amend the General Terms at any time. The amended versions will be made available to the Client, and such amended version of the General Terms shall become effective on the day that is 5 Business Days after the Client receives Notice, and a copy of the General Terms. If the Client objects to any amendment of the General Terms, it may, within 5 Business Days of receiving Notice of the amended General Terms, terminate the Client Agreement, and the termination will become effective at the end of the normal notice period. If the Client does not notify the Company of any objections to the amendments to the General Terms within 5 Business Days of receiving Notice and a copy of the General Terms, the Client will be deemed to have accepted and agreed to the General Terms.
(d) The Company may, without prior notification, make reasonable changes to its General Fees not included in the Client Agreement(s) from time to time for any reason, including, without limitation, increased costs of provision of Goods or Services, market conditions, and/or specific client needs or characteristics, or other factors.
- GOODS AND SERVICES
8.1. Choice of Services and Goods. Whilst the Company will endeavour to provide advice to the Client, the Client is solely responsible for ensuring that their choice of Good or Service conforms to their requirements or desired outcome. The Company is not liable for compensation, costs or damages resulting from incorrect selection of Goods or Services, or resultant delays in rectifying such errors. The Company provides Services and Goods on the basis of information provided by the Client, and the Company offers no warranty as to the suitability of the Services or Goods beyond the requirements as expressed by the Client.
8.2. Discontinuation of Services or Goods. The Company reserves the right to discontinue the provision of particular Goods and/or Services if it deems it necessary. The Company will then either provide the Service or Good for the remainder of the time that has been paid for or to provide the Client with a refund for a pre-paid Service or Good.
- USE OF GOODS AND SERVICES
9.1. Acceptable Use
The Client acknowledges that the Company exercises no control whatsoever over the content of information passing through the Client Equipment or Company Equipment utilized in connection with the Services, and that it is the Client’s sole responsibility to ensure that the information it transmits and receives complies with all applicable laws and regulations.
9.2. Unauthorized Access or Use
The Company shall have no liability to the Client for any unauthorized access or use, corruption, deletion, destruction, or loss of any data or applications. The Company is not responsible for any defects, deficiencies, or interruptions in operation of any equipment, any data center, or Services resulting from (i) the Client’s, the Client’s agents’, or the Client’s employees’ mishandling, abuse, misuse, or accident, (ii) force majeure, or (iii) the Client’s use or provisioning of Client Equipment electrically or mechanically incompatible with the Goods and/or Services or of inferior quality. Under no circumstances shall the Company be responsible for any third-party equipment or third-party software or damages that arise as a result of defects or issues related to the third-party equipment or software.
9.3. Restrictions on Use
The Client shall not, and shall not permit others including its employees and agents to, reproduce, reverse engineer, de-compile, disassemble, alter, translate, modify, adapt, market, resell, or sublease any Goods and/or Services, unless expressly permitted by the Client Agreement. Other than as specified in the Client Agreement, no license, title, or right is granted or transferred to the Client in or to any service marks, trademarks, copyrights, patents, trade secrets, or any other intellectual property rights of the Company (“Proprietary Information”), and the Client shall not have any right to use any Proprietary Information, or any Company software or hardware. The Company reserves the right to take any action necessary to prevent harm to the Services, Data Center, personnel, the Company, or the Company’s Equipment (and that of its affiliates, vendors and customers) or other persons.
9.4. Requirement to Follow Company Policies.
The Client agrees to comply with the Company’s policies and procedures as communicated to the clients, including, without limitation, those found in these General Terms as amended from time to time, in the MSA or PSA if applicable, in the Acceptable Use Policy, or as otherwise communicated to the Client by written Notice. The Client understands that failure to act in accordance with any such policies or procedures may severely damage the Company, the Company System, the Client, the Client System, the Client’s ability to do business, and the security of the Client’s data or that of third parties collected by the Client and/or the Company.
9.5. Personnel Training.
The Client understands that errors made by the Client’s Personnel are a major potential source of security and data breaches and that the probability of such potential breaches may be greatly reduced by provision of proper training to the Client’s Personnel. The Client therefore agrees to provide, in a timely manner, all training as requested by the Company to its employees, directors, officers, contractors, and other Personnel who will be given access to the Company System.
- COOPERATION BETWEEN CLIENT AND COMPANY
10.1. Provision of Access
The Client shall facilitate the Company’s performance of Services and shall provide the Company with reasonable access to information necessary to provide the Goods and/or Services described in the Client Agreement, including, without limitation, system and platform designs, network architecture, passwords, IP addresses, hardware and software specifications (“Client Information”). The Client agrees that a degradation in the provision of the Goods and/or Services may result if the Client fails to provide the Client Information. The Client agrees to allow Company employees and subcontractors access to its facilities in order to provide Goods and/or Services under any Client Agreement. The Client agrees to allow the Company access to, and all administrator-level passwords for any part of the Client System which form part of the Client Agreement. The Client agrees to ensure the establishment of and the maintenance of access credentials and physical access tokens for all Company employees and subcontractors that materially support the Client.
10.2. Maintenance Windows
The Company has the right to designate, and reschedule as needed, a particular recurring time period during which Client System may be temporarily unavailable for maintenance purposes (this period, the “Maintenance Window”). The Company also has the right to initiate an unscheduled Maintenance Window if the Company determines that (a) a severe risk of damage or disruption exists to any equipment or service covered under the Client Agreement and (b) this risk can be removed or mitigated by initiating a Maintenance Window. The Company shall make reasonable efforts to consult with the Client regarding optimal scheduling for Maintenance Windows and to notify the Client as soon as the period for any Maintenance Window is known. Actions by the Client to prevent or disrupt work done as part of a Maintenance Window may result in the omission of some elements of the Client Agreement for which the Company shall not be liable.
10.3. Installed Software
The Client agrees to allow the Company to load any necessary management or support software which forms part of the Client Agreement and the Client is responsible for ensuring that any software that the Company loads is in compliance with the Client’s policies and license agreements.
10.4. Damage to Client Equipment
The Company assumes no liability for any damage to, or loss of, any Client equipment or to other damages caused by or related to the Client’s use of the Goods or Services resulting from any cause other than the Company’s gross negligence or willful misconduct. To the extent the Company is liable for any damage to, or loss of, Client Equipment for any reason, such liability will be limited solely to the then-current book value of the customer’s equipment so damaged. The limitations of liability provided in the Client Agreement shall extend to the benefit of Company-indemnified parties. Each Party is responsible for insuring the equipment and property it owns with coverage consistent with industry standards. Neither Party has any obligation to insure the equipment or property of the other.
10.5. Client’s Failure to Comply
The Company shall be excused from compliance with its obligations associated with the Goods and/or Services under a Client Agreement to the extent that the Client’s failure to comply with the Client’s obligations in the Client Agreement results in a degradation of the Services.
11.1. Client Warranties
The Client represents and warrants that (i) the Client has the legal right and authority to place and use the Client Equipment, (ii) the Client is duly organized and has the authority to enter into the Client Agreement and to perform its obligations hereunder, (iii) the person signing the Client Agreement and any other documents on behalf of the Client is authorized to do so, and upon the Client signing the Client Agreement such agreement is legally binding on the Client, (iv) the Client’s and the Client’s end users’ use of the Goods and/or Services and of the Client Equipment does not, as of the Implementation Date, and will not, during the Term, violate applicable laws or regulations or infringe the rights of any third-parties, and (v) all information provided to the Company is accurate and complete.
11.2. Company Warranties
(a) The Company represents and warrants that (i) the Company has the legal right and authority to provide the Goods and Services, (ii) the Company is duly organized and has the authority to enter into the Client Agreement and to perform its obligations hereunder, (iii) the person signing the Client Agreement and other documents on behalf of the Company is authorized to do so, and (iv) the Goods and Services supplied to the Client under the Client Agreement will not, during the Term, violate applicable laws or regulations. The Company’s service commitment and remedy for interruption of service are detailed at, and the Client has read, understood, and agrees to, the Client Agreement.
(b) Subject to the qualifications and limitations contained herein, the Company warrants that the Services will, in all material respects, conform to the description of the services as set out in the Client Agreement.
11.3. No Other Warranties
The Client acknowledges that there are risks inherent in internet connectivity, and use of the Goods and/or Services, that could result in the loss of Client privacy, confidential information, data and property. The Company does not and cannot control the flow of information to or from the Company’s network and other portions of the internet. The Company has no obligation to provide security or protection for the Client’s privacy, confidential information, or data other than as specifically stated in the Client Agreement. Except for the express warranties set out in the Client Agreement, the Goods and/or Services are provided on an “as is,” “where is” and “with all faults” basis, and the Client’s use of the Goods and/or Services are at its own risk. Except as set expressly forth in the Client Agreement and to the maximum extent permitted under applicable law, the Company does not make, and hereby disclaims, any and all other express or implied warranties, including warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. The Company does not warrant that the operation of any Goods or Services shall be uninterrupted. The Company does not warrant that the Goods and Services will function as described, will be uninterrupted, error-free, or completely secure. The Client is solely responsible for the suitability of the Goods and/or Services chosen. Neither Party shall make any representations or warranties on the other Party’s behalf. The Company makes no warranty concerning compatibility of software or equipment or any results to be achieved therefrom. All other warranties, representations, conditions, endorsements or guarantees of any kind, either express or implied are hereby disclaimed and excluded to the maximum extent permitted under applicable law.
- BILLING AND PAYMENT
The Client will submit payment for the Goods and/or Services in accordance with the following:
(a) Billing Schedule. Billing will commence on the date that provision of the Goods and/or Services commences. Partial months will be charged pro rata.
(b) Arrears Invoiced. Any Goods and/or Services invoiced in arrears are payable on presentation of invoice.
(c) Taxes. All Fees and other amounts payable are quoted exclusive of applicable taxes unless stated otherwise.
(d) Non-Payment. The Company will not accept any liability or responsibility for delays, suspensions or impact to Services due to use of non-approved payment methods by the Client.
(e) Suspension of Services. Declined payments, or any other irregularity regarding payment which results in non-payment of any amount owing by the Client, may result in immediate suspension of any Services and ceasing provision of any Goods, including, but not limited to, the particular Services or Goods for which payment has not been made. For further clarity, the Company retains the right to suspend any Services and provision of Goods for non-payment, and to withhold such Services and/or Goods until all arrears are settled in full on any and all Goods and Services. Furthermore, the Client agrees to hold the Company harmless and not liable for any reason in relation to damages suffered by the Client and/or any person not a party to this contract and arising out of the suspension of Services and/or provision of Goods in accordance with this section. The Client further agrees not to seek an injunction or other remedy to prevent the Company from ceasing or suspending the provision of Goods and/or Services under this section. The Client agrees to indemnify the Company for any legal fees, litigation costs, damages, or any other amounts payable by the Client in relation to any action, claim, suit, or proceeding commenced against the Company by the Client or any person not a party to this contract and arising out of the suspension of ceasing of provision of Goods and/or Services to the Client.
- TERM AND TERMINATION
(a) Term of Agreement. The Term of the Agreement shall be as described in the MSA, the PSA, or other Client Agreement, as appropriate.
(b) Termination Due to Breach. Either party may terminate the Client Agreement where there is a breach of the Client Agreement by the other which has not been remedied within seven days of receipt of written notice to do so.
(c) Invoice Upon Termination. Upon either party terminating the Client Agreement, the Company shall immediately issue a final invoice for all amounts outstanding under the Client Agreement and such invoice shall be due and payable 30 days after issuance by the Company of such invoice.
(d) Removal of Equipment. Subject to the Client Agreement, immediately upon expiration of the Term or promptly upon earlier termination of the Client Agreement for any reason, the Company shall remove any Client Equipment from the Company facilities and premises, and transfer it into the custody of a Client Representative. Upon termination of the Client Agreement, the Company shall have the option to store the Client Equipment and charge the Client storage costs or to dispose of the Client Equipment as set forth in the Client Agreement. Upon termination of the Client Agreement, the Client will return to the Company any Company Equipment that is loaned to or borrowed by the Client pursuant to the Client Agreement. In addition to any and all other remedies at law or equity available to the Company, all obligations of the Client under the Client Agreement shall remain in full force and effect until the Company Equipment is returned to the Company. The Client is liable for and agrees to pay for and/or replace any damaged Company Equipment.
- Client Information and Privacy
14.1. Compliance with Applicable Legislation. The Company and the Client both agree that they, in collecting, storing, using, transmitting, and deleting information, will observe all privacy of information best practices, in accordance with all Applicable Legislation in Canada, including, without limitation, the Personal Information Protection Act, SBC 2003, c 63 (“PIPA”), the Privacy Act, RSC 1985, c P-21 (the “Privacy Act”), and the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”). Where the Client’s use of a Good and/or Service leads to the transmission of personal information, as that term is defined in any Applicable Legislation, to or from Canada, the Client acknowledges that it has a duty to comply with any Applicable Legislation dealing with data privacy either in Canada or in any foreign jurisdiction to which such personal information is transmitted. Without limiting the foregoing, the Client acknowledges that if the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) applies to any Personal Information being gathered by the Client, the Client is aware of the GDPR and its contents and its data collection conforms with the requirements under the GDPR. The Client warrants that its collection, storage, use, deletion or other dealing with data is lawful, and indemnifies the Company from any claim or regulatory action brought against the Company in connection with the Client’s collection, storage, use, deletion, or other dealings with data.
14.2. Company Retention of Information. The Company may retain backups as a matter of course for up to one year after termination, and the Client consents to such retention. However, the Company gives no warranty in respect of the effectiveness of such backups (if any).
15.1. Best Practices. The Company will implement measures in line with Good Industry Practice to ensure the security of the Company System and the physical security of the Company’s premises, but gives no warranty that data breaches and other breaches of security will not take place.
15.2. Immediate Notification of Security Violation. If the Client discovers a security violation, or has any reason to suspect that a security violation is imminent, it must immediately notify the Company in an appropriate way that does not further compromise security concerns.
15.3. Disclaimer of Liability from Security Breach. If the Client suffers damage as a result of loss or corruption of Client Data through a security violation, the Company disclaims, and the Client releases the Company, for any liability or damages arising in connection with such loss or corruption of Client Data. The Client agrees that despite the best efforts of the Company and/or the Client, the occurrence of a data or security breach may occur due to, without limitation, error by the Client and/or Client Personnel, hardware or software malfunction, vulnerabilities in any Services provided, or Company error, and such event is, as such, within the reasonable expectations of the Client.
15.4. Proper Security Measures. The Client must not do anything that may prejudice the security of the Company System, and must take all reasonable measures necessary to ensure that:
(a) no unlawful access is gained to the Company’s premises, the Company System, or the Client System;
(b) no Malicious Code is introduced into the Company System or the Client System; and
(c) the Client Data is safeguarded.
15.5. Emergency Measures. If a security violation occurs, or the Company is of the view that a security violation is imminent, the Company may take whatever steps it considers necessary to maintain the proper functioning of the Client System including, without limitation, changing the Client’s access codes and passwords (or those of any user of the Client System).
15.6. No Warranty. The Company takes reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time limit.
15.7. Full Cooperation. The Client must give its full cooperation to the Company in any investigation that may be carried out by the Company regarding a security violation.
15.8. Third Party Access. If the Client is providing any service to third parties that makes use of the Company System, the Client must contractually bind those third parties to equivalent terms regarding policies and procedures regarding security as are set out in the Client Agreement.
15.9. Company Inspection. The Company may on prior written notice to the Client inspect the Client’s installation and Client Equipment located on the Company’ premises to ensure compliance with the Company’s policies and procedures and the obligations of the Client under the Agreement between the parties.
- MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE
16.1. Confidential Information. The Parties shall be furnishing one another with certain non-public information about each Party’s business and operations, including information concerning infrastructure designs, technical information, software, and other proprietary intellectual property. Such information, written or oral, together with analyses, compilations, studies or other documents prepared by either Party or its affiliates, officers, directors, employees, agents or representatives (collectively, the “Personnel”) that contain or otherwise reflect such information, shall be referred to as “Confidential Information”.
16.2. No Disclosure of Confidential Information. The Confidential Information of each Party shall be kept confidential by the other Party and shall not be disclosed, in whole or in part, by the other Party to any person other than the Personnel of the other Party who need to know the Confidential Information for the purpose of evaluating the proposed Client Agreement. Each Party agrees to inform its Personnel of the non-public nature of the Confidential Information of the other Party and to direct them to treat such Confidential Information in accordance with the terms of the Client Agreement. Each Party shall not use or allow the use of the Confidential Information for any purpose except to evaluate the proposed agreement. Each Party shall be responsible for any breach of the terms of the Client Agreement by its Personnel. The Confidential Information of each Party shall be returned to the furnishing Party immediately upon request.
16.3. Non-Disclosure of Existence of Client Agreement. Except as otherwise required by law, each Party and its respective Personnel shall not disclose to any person (i) that the Parties have exchanged Confidential Information, (ii) that discussions or negotiations are taking place concerning a possible agreement between the Parties, or (iii) any of the terms, conditions or other facts with respect to any possible Client Agreement, including the status thereof, without the prior consent of the other Party.
16.4. Defense of Legal Proceedings. In the event a Party or any person to whom it transmits the Confidential Information is requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information of the other Party, the Party subject to such process shall provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance by the Party subject to such process to the provisions of the Client Agreement. In the event that such protective order or other remedy is not obtained or the other Party waives compliance with the provisions of the Client Agreement, the Party subject to such process shall furnish only that portion of the Confidential Information that is legally required and shall exercise commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment shall be accorded the Confidential Information. A Party shall not commence any legal action or proceeding in respect of any unauthorized possession, use or knowledge of the Confidential Information without the prior written consent of the Party furnishing the Confidential Information.
16.5. Exclusions. The term “Confidential Information” does not include any information that (i) was publicly available prior to the date of the Client Agreement or thereafter becomes publicly available without any violation of the Client Agreement on the part of the Parties or any of their respective Personnel or ( ii) was available to a Party on a non-confidential basis prior to its disclosure to such Party or its Personnel or becomes available to a Party from a person, other than the other Party and its Personnel, who is not, to the best of such Party’ s knowledge, subject to any legally binding obligation to keep such information confidential.
16.6. Representations and Warranties. Each Party and its Personnel make no representations or warranties, express or implied, with respect to the Confidential Information of such Party, except for any representations and warranties that may be made by such Party in any definitive agreement relating to the Agreement. Each Party acknowledges and agrees that the Confidential Information and all copyright and other proprietary rights therein shall remain the property of the Party furnishing such Confidential Information. No Party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects, which embody the other Party’s Confidential Information.
- DEFAULT AND REMEDIES
17.1. Definitions. The following definitions apply to this section:
(a) “Company Default” means (i) the Company fails to perform a material obligation under the Client Agreement after receiving 15 calendar days advance written notice from the Client of such failure, (ii) the Company’s insolvency or liquidation as a result of which the Company ceases to do business, or (iii) the material breach of any representation or warranty made by the Company in the Client Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Company Default unless such breach is not cured by the Company within 15 calendar days after receiving written notice from the Client of such breach. A deficiency, perceived or actual, in the Goods and/or Services does not constitute a Company Default for the purposes of the Client Agreement.
(b) “Client Default” means (i) the Client fails to pay, when due, any fees or charges owed to Company under the Client Agreement, provided that the first such nonpayment or late payment in any calendar year shall not be a Client Default unless Client fails to pay such amount within 3 business days after written notice from the Company of such nonpayment or late payment; (ii) the Client fails to promptly pay (or repay) any or all of a security deposit and does not cure such failure within 15 business days after written notice thereof; (iii) the material breach of any representation or warranty made by the Client in the Client Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Client Default unless such breach is not cured by the Client within 15 calendar days after receiving written notice from the Company of such breach; (iv) the Client fails to comply with any material obligations under the Client Agreement (other than payment or security deposit obligations) after receiving 15 calendar days advance written notice from the Company of such failure; (v) the Client’s insolvency or liquidation as a result of which the Client ceases to do business or if the Company has a reasonably held belief that the Client may be unable to pay its debts as they become due; (vi) the Client’s filing for bankruptcy, reorganization, or failure to discharge an involuntary bankruptcy petition within 60 calendar days; or (vii) there occurs an event (including an attack on or unauthorized access to Client Equipment or data by a third-party) for which the Company reasonably believes that the suspension of the provision of Goods and/or Services is necessary to protect the Company or the Company’s other customers, in which case the Company will provide advance notice of 12 hours unless the Company determines in its reasonable judgment that shorter or contemporaneous notice is necessary to protect the Company or its other customers from imminent and significant operational or security risk. For purposes of the Client Agreement, any violation by the Client of the Acceptable Use Policy, shall be considered a failure to comply with a material obligation.
17.2. Remedies on Default. If a Party commits a Default, the non-defaulting Party will be entitled to exercise any one or more of the following remedies, as applicable, then or at any time thereafter: (a) to exercise any remedy for such Default set forth elsewhere in the Client Agreement; or (b) to immediately terminate the Client Agreement. In the event of a Client Default, in addition to and without waiving any other remedies for Default available to the Company hereunder, the Company may, without liability and without notice beyond the initial notice required for the Client Default (i) suspend or discontinue provisions of Goods and/or Services or the Company’s performance under the Client Agreement, (ii) collect liquidated damages as set forth in the Client Agreement, (iii) treat as abandoned, dispose of, or retain and use, free of any rights or claims thereto from the Client or anyone claiming by, through, or under the Client, any or all of the Client Equipment after the Client has been notified of the Client Default and failed to promptly cure the Client Default, and then only after 20 calendar days prior written notice to the Client, and (iv) restrict the Client’s physical and electronic access to the Company System, Company Equipment, and Company premises except for the limited purpose of removal of the Client Equipment after payment in full of any and all amounts owed to the Company.
17.3. Suspension or Discontinuance of Services. In the event of suspension or discontinuance of provision of Goods and/or Services due to a Client Default, the Client shall continue to be liable for all fees and charges for any Goods and/or Services that are still in use by the Client. Notwithstanding the foregoing, all of the Client’s rights with respect to the Goods and/or Services shall be terminated during any period of suspension following a Client Default.
17.4. Remedies Cumulative and Concurrent. Each remedy of the non-defaulting Party as provided for in the Client Agreement, or now or hereafter existing at law or in equity, or by statute or otherwise, shall be cumulative and concurrent and shall be in addition to every other remedy (i) provided for in the Client Agreement, and (ii) except as otherwise limited in the Client Agreement, now or hereafter existing at law or in equity, or by statute or otherwise, and the exercise or beginning of the exercise by the non-defaulting Party of any one or more of such remedies shall not preclude the simultaneous or later exercise by the non-defaulting Party of any or all such other remedies.
17.5. No Liability for Goods and/or Services Suspension. The Company shall have no liability whatsoever for any damages that the Client may incur as a result of any Service suspension permitted in the Client Agreement.
17.6. Lien Over Equipment.
The parties agree that in the event of a breach of the Client Agreement by the Client which causes the Company to suffer damages of any nature whatsoever, the Company shall not be required to attach any of Client Equipment in execution, and shall be entitled to retain a lien over such Client Equipment in its possession in reduction of any debt due by the Client to the Company.
18.1. Definitions. For purposes of this section 18, the following definitions apply:
(a) “Personnel” means, with respect to an entity, any of that entity’s directors, officers, employees, agents, consultants, advisors, and other representatives.
(b) “Company Indemnitee” means the Company, any affiliate of the Company, each Representative of any of the foregoing, and each of the heirs, executors, successors, and assignees of any of the foregoing.
(c) “Indemnifiable Losses” means the aggregate of Loss suffered by the Indemnified Party in relation to a Proceeding, including, without limitation, damages payable, Litigation Expenses, fines, travel expenses, and any other amounts payable.
(d) “Litigation Expense” means any out-of-pocket expense incurred in defending a Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.
(e) “Loss” means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.
(f) “Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding.
18.2. Indemnification from Nonparty Claims. With respect to any Proceeding brought by someone other than the Client, or someone other than one or more Company Indemnitees, against one or more Company Indemnitees, arising out of the Client Agreement (each, a “Nonparty Claim”), unless otherwise stated in the Client Agreement, the Client shall indemnify those Company Indemnitees against all Indemnifiable Losses arising out of that Proceeding, except to the extent that Company was grossly negligent or intentionally caused those Indemnifiable Losses.
18.3. Notification of Nonparty Claim. To be entitled to indemnification under paragraph (b), a Company Indemnitee subject to any Nonparty Claim must promptly (and in any event no later than ten days after the Company Indemnitee first knew of that Nonparty Claim) notify the Client of that Nonparty Claim and deliver to the Client a copy of all legal pleadings with respect to the Nonparty Claim. If the Company Indemnitee fails to timely notify the Client of a Nonparty Claim, the Client will be relieved of its indemnification obligations with respect to that Nonparty Claim to the extent that the Client was prejudiced by that failure and the Client will not be required to reimburse the Company Indemnitee for any Litigation Expenses the Company Indemnitee incurred during the period in which the Company Indemnitee failed to notify the Client.
18.4. Assumption of Defense. To assume the defense of a Nonparty Claim, the Client must notify the Company Indemnitee that it is doing so. Promptly thereafter, the Client shall retain to represent it in the Nonparty Claim independent legal counsel that is reasonably acceptable to the Company Indemnitee.
18.5. Participation of Company Indemnitee. A Company Indemnitee is entitled to participate in the defense of a Nonparty Claim. A Company Indemnitee may defend a Nonparty Claim with counsel of its own choosing and without the Client participating if (a) the Client notifies the Company Indemnitee that it does not wish to defend the Nonparty Claim, (b) by midnight at the end of the tenth day after the Company Indemnitee notifies the Client of the Nonparty Claim the Client fails to notify the Company Indemnitee that it wishes to defend the Nonparty Claim, or (c) representation of the Client and the Company Indemnitee by the same counsel would, in the opinion of that counsel, constitute a conflict of interest.
- Company Indemnitee Expenses. The Client shall pay any Litigation Expenses that a Company Indemnitee incurs in connection with defense of the Nonparty Claim before the Client assumes the defense of that Nonparty Claim, except with respect to any period during which the Company Indemnitee fails to timely notify the Client of that Nonparty Claim. The Client will not be liable for any Litigation Expenses that a Company Indemnitee incurs in connection with defense of a Nonparty Claim after the Client assumes the defense of that Nonparty Claim, other than Litigation Expenses that the Company Indemnitee incurs in employing counsel in accordance with this section, which Litigation Expenses the Client shall pay promptly as they are incurred.
19.1. Settlement of Nonparty Claim. After the Client assumes the defense of a Nonparty Claim, the Client may contest, pay, or settle the Nonparty Claim without the consent of the Company Indemnitee only if that settlement (a) does not entail any admission on the part of the Company Indemnitee that it violated any law or infringed the rights of any Person, (b) has no effect on any other claim against the Company Indemnitee, (c) provides as the claimant’s sole relief monetary damages that are paid in full by the Client, and (d) requires that the claimant release the Company Indemnitee from all liability alleged in the Nonparty Claim.
- NON-SOLICITATION OF COMPANY EMPLOYEES
The Client agrees that it will not, and will not attempt to, solicit, hire, or recruit any employees working with the Company during the term of this Agreement, including, without limitation, the designated Representatives assigned to your account.
- LIMITATION OF LIABILITY AND INDEMNITY
21.1. LIMITATION OF LIABILITY. THE COMPANY WILL NOT BE LIABLE TO THE CLIENT OR ANY THIRD PARTY IN RESPECT OF ANY AND ALL DAMAGES, LOSS, CLAIMS OR COSTS, OF WHATEVER NATURE, AND INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES SUFFERED BY THE CLIENT OR THIRD PARTY, HOWSOEVER ARISING, AND THE COMPANY WILL MOREOVER NOT BE LIABLE WHETHER THE LOSS WAS THE RESULT OF THE ACT OR OMISSION OF A COMPANY EMPLOYEE, VICARIOUS, OR STRICT LIABILITY. THIS LIMITATION OF LIABILITY APPLIES, WITHOUT LIMITATION, TO DAMAGES, LOSSES, CLAIMS, OR COSTS OF ANY NATURE SUFFERED AS A RESULT OF CLIENT OR CLIENT PERSONNEL ERROR, HARDWARE OR SOFTWARE FAILURE, VULNERABILITY OF THIRD PARTY SERVICES OR APPLICATIONS, COMPANY OR COMPANY PERSONNEL ERROR IN PROVISION OF SERVICES AND/OR PROVISION AND SELECTION OF GOODS, ACT OF GOD OR OTHER UNFORESEEABLE INCIDENT, CYBER ATTACKS, SECURITY BREACHES OF ANY KIND.
21.2. Quantum of Liability Limited. In the event that the Company is nonetheless held liable, the quantum of the Company’s liability will not exceed, as the case may be:
(a) the Fees payable in relation to a one-time repair or service call;
(b) the total Fees payable for the Services under a PSA;
(c) the total of Fees billed for the preceding 3 months under an MSA;
(d) the monthly Fees due in the preceding month for the Services that occasioned the loss, as delivered under a Client Agreement not mentioned in subsections 21.2(a), (b), or (c) hereof;
regardless of whether the claim arises out of negligence on the part of the Company or any other cause.
21.3. INDEMNIFICATION OF COMPANY. THE CLIENT HEREBY AGREES TO INDEMNIFY AND HOLDS HARMLESS THE COMPANY IN RESPECT OF ANY DAMAGES, LOSS OR COSTS, OR CLAIMS INSTITUTED AGAINST THE COMPANY ARISING FROM ANY APPLICATION OR SUBSCRIPTION TO OR USE OF ANY SERVICE OR BREACH OF THE TERMS AND CONDITIONS APPLICABLE TO IT.
21.4. Benefit of Limitations. These limitations on liability and indemnities apply to the benefit of the Company and the Company’ affiliates, directors, officers, employees, contractors, agents and other representatives, as well as any third parties whose networks are connected to the Company System.
21.5. No Limitation of Charges for Services. Nothing contained in this clause will limit the Client’s liability in respect of charges incurred for ongoing Services.
21.6. Severability. If any provision of this section is found by a court or tribunal with jurisdiction over the Company to be unfair, unreasonable or unjust, then that provision (whether it be a word, phrase or sub-clause) shall be read down to such extent that it is fair, reasonable, and just, and, if this is not possible in the circumstances, shall be severed from the Agreement and the remainder of the Client Agreement will have full force and effect.
21.7. Ambiguity. In the case of ambiguity, this section 21 will take precedence over any expression of the parties’ intention, whether express or implied, that may be contained elsewhere in the Client Agreement.
- FORCE MAJEURE EVENT
22.1. Definition. “Force Majeure Event” means, with respect to a Party, any event or circumstance, whether or not foreseeable, that was not caused by that Party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change of law, or an event or circumstance that results in that Party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
- Conditions for No Breach in Force Majeure. If a Force Majeure Event prevents a Party from complying with one or more obligations under the Client Agreement, that inability to comply will not constitute breach if (a) that Party uses reasonable efforts to perform those obligations, (b) that party’s inability to perform those obligations is not due to its failure to (i) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event or (ii) develop and maintain a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (c) that Party complies with its obligation that if a Force Majeure Event occurs, the noncomplying Party shall promptly notify the other Party of the occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying Party expects it to last. Thereafter the noncomplying Party shall update that information as reasonably necessary.
- Reasonable Mitigation of Damages. During a Force Majeure Event, the noncomplying Party shall use reasonable efforts to limit damages to the other Party and to resume its performance under the Client Agreement.
25.1. Notices in Writing. All requests by the Client for the provisioning, modification or termination of Services, and for modification of contact and other Personal Information must be made in writing, by registered mail, facsimile, or by e-mail to the Company and/or Client’s e-mail addresses, all as specified herein, or as specified from time to time by the Company and/or the Client by written Notice, and the Company reserves the right to ignore any such request made in any other manner.
25.2. Addresses for Notice. Any notice required to be given under the Client Agreement shall be given as follows:
To the Company at:
1620 Dickson Avenue – Unit B7
Kelowna, BC V1Y 9Y2
To the Client at the address and e-mail address as specified in the Client Agreement.
25.3. Changes to Address. Either party may vary its given postal address or other contact details by delivering Notice thereof to the other party in writing.
25.4. Deemed Delivery. Any notice given in terms of the Client Agreement must be in writing and any notice given by any party to another (the “Addressee”) which:
(a) is delivered by hand will be deemed to have been received by the Addressee on the date of delivery; or
(b) if sent by fax during Business Hours, upon production of a satisfactory transmission report by the fax machine which sent the fax and if outside such Business Hours then at the beginning of the next Business Day; or
(c) is transmitted by email will be deemed to have been received on the following Business Day after the e-mail is sent; or
(d) is posted by pre-paid registered mail from an address within Canada to the Addressee at its chosen postal will be deemed to have been received by the Addressee on the 3rd (third) day after the date of posting.
(e) Despite the above:
- any notice that the Company sends by email to an email account hosted on the Company System by the Client will be deemed to have been received by the Client on the date of transmission; and
- if a written notice or communication is actually received by one of the parties from the other, this will be adequate written notice or communication to that party.
- INTERPRETATION AND GENERAL
(a) Assignment of Agreement. The Company may assign the Client Agreement to a related company of the Company at its sole discretion. Clients affected will be notified of such changes and any potential impact to their Service Agreement within the minimum term (30 days) of Agreement.
(b) Whole Agreement. This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver, or cancellation agreed to by both parties will be of any effect.
(c) Governing Law And Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the province of British Columbia and all disputes, actions and other matters relating thereto will be venued in the Kelowna Law Courts.
(d) Survival of Provisions. For the avoidance of doubt, any provision of the Client Agreement that anticipates any right or duty extending beyond the termination or expiry of the Client Agreement will survive the termination or expiry of the Client Agreement and continue in full force and effect.
(e) No Waiver. Any waiver of any terms and conditions hereof must be in writing and signed by the parties hereto. The waiver of any of the terms and conditions of the Client Agreement shall not be construed as a waiver of any subsequent breach of the same or any other terms and conditions hereof.
(f) Representatives. The signatories hereto designated as a Representative, or holding themselves out to be representing the interests of the Company or the Client warrant that they are authorized to act in such capacities, and accept personal liability under the Client Agreement should they prove not to be so authorized.
(g) Reading Down. If a provision of the Client Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
(h) Severability. In the event that any part of the Client Agreement is found to be partially or fully unenforceable because it does not comply with any law, or for any other reason, this will not affect the application or enforceability of the remainder of the Client Agreement.