TERMS AND CONDITIONS
This Agreement sets forth the terms under which the parties agree that WhiteCloud Digital. 1860 Appleby Line Unit 14, Suite 199, Burlington, Ontario L7L 7H7 will provide certain services to Customer according to the following specifications:
GENERAL TERMS AND CONDITIONS
SERVICES. WhiteCloud Digital will provide to Customer the services (collectively the “Services”) as specified in Contract Proposal signed by WhiteCloud Digital and Customer (as amended by the parties from time to time) in accordance with the terms of this Agreement. Customer agrees to receive the Services from WhiteCloud Digital in accordance with the terms of this Agreement.
OTHER SERVICES. Upon written request by Customer, WhiteCloud Digital may at its option, provide Customer with professional services such as programming, integration and design (“Other Services”), in connection with Customer’s use of the Services. Unless the parties agree otherwise, Customer will pay for such Other Services in accordance with the professional services provisions of a provided Schedule agreed to and signed by both parties assigned hereto. If Customer desires professional services, Customer shall enter into WhiteCloud Digital’s standard professional services agreement.
TERM. This Agreement will commence on the date signed by both parties and will continue for an initial period of one (1) year (the “Initial Term”). This Agreement shall automatically renew for subsequent one (1) year periods (each a “Renewal Term”) unless written notice is provided by either party to the other at least thirty (30) days prior to the expiration date of the Initial Term or the applicable Renewal Term, in which case the contract will expire on said expiration date.
Customer will pay WhiteCloud Digital the Recurring Monthly Fees (if applicable) as specified in the order placed with WhiteCloud Digital Pricing Summary Schedule. Upon 30 days or greater written notice prior to the end of the Term, WhiteCloud Digital may change any fees payable under this Agreement. Customer will pay all taxes levied against or upon the services stipulated in the Service Table (as amended by the parties from time to time) or otherwise provided by WhiteCloud Digital under this Agreement (not including taxes based on WhiteCloud Digital’s income).
All Recurring Monthly Fees will be payable monthly in advance. Monthly Fees for additional one time charges for Other Services, which are not billed as Recurring Monthly Fees, will be payable monthly in arrears.
All amounts will be payable on the 15th of the month in which an invoice is received, which invoices will be issued on the first day of each month. Customer will pay by pre-authorized payment to a Customer credit card, or by cheque of immediately available funds remitted to WhiteCloud Digital at the address set forth above.
Any payment not made when due will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%).
If Customer’s data usage exceeds the amount specified as the Minimum Commitment in the Pricing Summary of the Agreement. Customer will be billed for the amount of the Minimum Commitment plus incremental fees.
WhiteCloud Digital reserves the right to require a security deposit, the amount of which is based upon one (1) month’s estimated data usage.
TERMINATION. Either party may terminate this Agreement immediately on written notice, if the other party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within ten (10) days after filing. WhiteCloud Digital may terminate this Agreement on twenty (20) days written notice if the Customer commits a material default (which will include without limitation any failure to make any payment when due) and fails to rectify such default within 10 days after being given notice of such default by the other party.
IF CUSTOMER IS IN DEFAULT. If Customer is in default of any of its obligations under this Agreement, then WhiteCloud Digital may in its sole discretion without notice suspend access to the Services until the default is remedied.
CREDIT AUTHORIZATION. Customer hereby authorizes WhiteCloud Digital and gives consent to WhiteCloud Digital under applicable privacy laws for WhiteCloud Digital to obtain credit information and bank and other financial references regarding Customer for the purposes of assessing Customer’s credit worthiness, and Customer will promptly execute and deliver to WhiteCloud Digital such further documents and assurances and take such further actions as WhiteCloud Digital may from time to time reasonably request in order to carry out the intent and purpose of this Section.
LIMITATION OF LIABILITY. THE LIMIT OF WhiteCloud Digital’S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE OR OTHERWISE TO CUSTOMER (OR ITS CLIENTS) CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO WhiteCloud Digital UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 2 MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL WhiteCloud Digital BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
FORCE MAJEURE. Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the control of the party affected (“Force Majeure”). If any Force Majeure occurs, the party claiming the Force Majeure will promptly notify the other. The party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This Section will not apply to excuse a failure to make any payment when due.
CUSTOMER RESPONSIBILITIES. The Customer is responsible for maintaining the confidentiality of the Customer’s account number and passwords. The Customer agrees to immediately notify WhiteCloud Digital of any unauthorized use of the Customer’s account of which the Customer becomes aware. The Customer agrees that the Customer is solely responsible for the content of all visual, written or audible communications using the Customer’s account. The Customer agrees that the Customer will not use the Services to send unsolicited email outside the Customer’s organization in violation of applicable laws. The Customer further agrees not to use the Services to communicate any message or material that is harassing, libellous, threatening, obscene, would violate the intellectual property rights of any party is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable laws or regulations. Although WhiteCloud Digital is not responsible for any such communications, WhiteCloud Digital may suspend any such communications of which WhiteCloud Digital is made aware of, at any time upon prompt notice to the Customer. The Customer agrees to indemnify, defend and hold harmless WhiteCloud Digital from any and all third party claims, liabilities, damages and/or costs (including, but not limited to, legal fees) arising from the Customer’s violation of Customer Acceptable Use Policy.
OTHER CUSTOMER OBLIGATIONS. Customer will comply (and will cause its clients to comply as if those clients were the Customer) with the Acceptable Uses Policy (as amended by WhiteCloud Digital from time to time). The security for transmissions made using the Services is the responsibility of Customer. Customer’s sole remedy for any interruption of Services will be to receive refunds. Customer agrees to defend, indemnify and hold harmless WhiteCloud Digital, and its officers, directors and employees (collectively, the “Indemnities”), from any and all liabilities, costs and expenses, including reasonable legal fees, related to or arising from any action or claim by a third party against the Indemnities asserting an intellectual property right violation or any other third party claims which concern Customer’s (or its clients’) use of the Services (including without limitation transmission of any message, information, software or other materials, or service interruptions).
NOTICES. Every notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing to the party at the address first set forth above for such party and will be deemed to have been delivered and given for all purposes (i) on the delivery date, if delivered personally; (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt, if sent by courier; (iii) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (iv) upon personal acknowledgement by the recipient, if sent by email.
COMPLIANCE WITH LAWS. Customer will comply with all applicable laws, regulations, and ordinances.
ASSIGNMENT. Customer may not assign this Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of WhiteCloud Digital.
SURVIVAL. The provisions set forth in Sections 8, 10 (indemnity obligations only) 11, (indemnity obligations only) and 12 of this Agreement will survive termination or expiration of this Agreement.
RESERVATION OF RIGHTS. WhiteCloud Digital reserves all rights not specifically granted herein.
ENTIRE AGREEMENT. This Agreement supersedes all previous Agreements and Service Agreement Addendums between the parties. This Agreement, the Schedule, and any subsequent Service Agreement Addendums constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, WhiteCloud Digital MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
MODIFICATIONS. This Agreement may not be altered, amended or modified, except in writing signed by both parties.
NO WAIVER. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
SEVERABILITY AND REFORMATION. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
REMEDIES NOT EXCLUSIVE. The remedies available to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity or by statute.
RELATIONSHIP. The relationship of WhiteCloud Digital to Customer will be that of an independent contractor, and neither WhiteCloud Digital nor any employee of WhiteCloud Digital will be deemed to be an agent or employee of Customer.
Choice of Law and Attornment. This Agreement will be governed and interpreted by the laws of the Province of Ontario and the applicable laws of Canada without regard to its conflicts of law provisions. The parties hereby irrevocably and unconditionally attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals there from.
FURTHER ASSURANCES. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies intended to be created in favor of the other.
LANGUAGE. This Agreement and all related documents have been drawn up in English at the mutual request of the parties hereto.
By signing Contract Proposal and/or paying for the first payment of services, each party acknowledges that it has read, understands, and agrees to the terms of this Agreement.