Terms and Conditions
APPLICATION SERVICES LICENSE AGREEMENT
IMPORTANT: READ CAREFULLY: This Agreement is a legal agreement between you (either an individual person or a single legal entity, who will be referred to in this Agreement as "Customer", "You" or, in the possessive, "Your") and Makiska Media Corporation ("MMC") having its principal place of business at #406, 917 - 85 Street SW, Suite 233, Calgary, Alberta, Canada, T3H 5Z9.
This Agreement outlines Customer's permission and license to use and access the online data management tools provided by MMC, comprised of an Internet accessible software service known as Relevance Reactor ("RR"), and any other software, documentation, or web services that are part of that application services arrangement and provided under license and hosted by MMC (collectively, the "Software").
This Agreement provides the Customer a non-exclusive license to access and benefit from the Software, including usage and support or assistance services comprising RR which are supplied, provided or made available under license by MMC as a service or hosted solution, including any of MMC's web-based services provided to Customer, all as set out in Schedule "A" and are incorporated into this Agreement by reference (collectively, the "Services"). Access to the Services shall be via the Internet, the Software being physically hosted and located on MMC servers in its designated datacenter (the "Facility"). The Services and Software are for commercial purposes, and not for residential or consumer usage.
All fees associated with the Software and Services (including payment options and when such fees are due and payable), shall be as set out in Schedule "B", and are incorporated into this Agreement by reference.
This Agreement is valid and grants the end-user license rights ONLY if the Services are accessed by a proper licensee. By accessing or otherwise using the Services, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to the terms of this Agreement, MMC is unwilling to license the Services. In such event, you may not use the Services, and you should promptly contact MMC for instructions ceasing to use or access the Services in accordance with MMC's directions.
The terms and conditions of this Agreement are as follows:
1. TRIAL PERIODS. From time to time, we may offer free trials of different features of the Services on a trial or no cost basis, which after an agreed timeframe will automatically convert to "paid Services" (and the cost of which shall be charged to the credit card provided when signing up for the trial period). Generally, you will be asked to enter your credit card as a condition of participating in the offer. Customer will not be charged during the trial period. Customer can cancel Services at any time by following the cancellation instructions posted on the site. For Customer's convenience and to ensure access to the Services remains uninterrupted, unless we hear from Customer, after a trial membership we will automatically renew and bill the credit card or other payment means used during the registration process for the cost of another services term, at the then current rate. Where Customer provides notice within the trial period that it does not wish to obtain Services after the trial period, the account will not be re-billed or renewed, unless Customer subsequently elects to obtain Services (in respect of which there shall be not be a further "no cost" or "trial period", each person being entitled to one such trial period only, whether or not a new account is opened). The terms and conditions set out in this Agreement are applicable to paid or trial customers obtaining the Services, as may be applicable in any particular instance. With respect to additional Services or products acquired, Customer shall be billed in the manner described during its purchase.
2. USERS AND PASSWORDS. MMC will provide Customer with user access, permissions and such number of passwords as requested and required by Customer, and agreed to by MMC. Customer will take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, each password. Customer acknowledges that it can reset a password at any time. Customer will immediately notify MMC in writing if Customer determines, or has reason to believe, that an unauthorized party has gained access to a password. Customer authorizes MMC to rely upon any information and/or instructions set forth in any data transmission using the assigned password without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with providing the Services. Use of the assigned password, whether or not authorized by Customer, shall be solely the responsibility of and the risk of Customer. Customer shall indemnify, defend, and hold harmless MMC from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorized use of any Customer's passwords.
3. END USER AGREEMENTS. Customer acknowledges and agrees that MMC may, but shall not be obligated to, require any or all users of the Services, by electronic acceptance, to accept and enter into an end user agreement provided by MMC as a condition of accessing and using the Services. MMC may, but shall not be obligated, to create or retain data records of any such end user agreement and the acceptance thereof. Where MMC has designed the Software or the Services to not permit access to or use of the Software or the Services without first accepting any required end user agreement, Customer will not permit any Person, including any user, to gain access to the Software or the Services without first accepting and entering into such end user agreement and, without limitation, Customer will not provide any user with any information permitting any user to circumvent any such end user agreement. MMC, in its sole discretion, may amend any such end user agreement at any time by linking such amended end user agreement from the Software and/or the Services, or posting or publishing such amended end user agreement in the Software or the Services, and requiring Users to enter into and accept such amended end user agreement as a condition of accessing, or continuing to access, the Software or the Services. MMC will not implement, require or amend any such end user agreement to result in any material erosion or diminishment of the legal rights of Customer under this Agreement, or any material increase in the obligations of Customer under this Agreement.
4. RENEWAL AND TERMINATION. Upon initiation of the Services, this Agreement shall continue for an indeterminate period, provided that either party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other party. Upon expiration of each monthly period, unless either party has provided notice of termination, this Agreement will be renewed for a successive month at the then current rates. Customer, upon expiration or termination of this Agreement, shall be entitled to a return of all Customer Content in a form determined by MMC, comprised of all data, emails and other confidential information in the possession of MMC, excluding only anonymous or non-specific data, including utilization or other statistics and information. Upon such delivery, no later than 15 days thereafter, MMC (unless otherwise requested by Customer) shall delete and wipe all data storage areas that contained such delivered data. In the event that Customer wishes MMC to maintain an archive copy of the data, MMC shall be entitled to charge data storage fees at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of data is completed.
5. NO THIRD PARTY ACCESS. Customer and its authorized users shall not: (i) execute the Services for other than the Customer and its staff and employees, or the customers of the Customer in the manner intended by the Services for the proper use and enjoyment of same, (ii) transfer, lease, loan, resell for profit or otherwise, distribute or otherwise grant any rights in the Software in any form to any other party, including commercial time-sharing, rental, or service bureau use; or (iii) grant sublicenses or otherwise transfer the Services to any third party. Without restricting the generality of the foregoing, Customer may not use the Services to develop or test any other software or technology having a similar primary function as the Services.
6. SOFTWARE LICENSE. Customer is granted a bare license to use and access the Software owned by or under license to and made available by MMC to allow Customer to receive the Services, and MMC grants to Customer permission to remotely access the Software in the Facility to enjoy same. The right to use the Software is not a sale and does not convey any rights of ownership in or to the Software, and MMC is not granting Customer any rights whatsoever in the Software source code, algorithm, or methodology. All right, title, and interest in the Software and any modifications thereof, or in any ideas, know-how, and programs developed by MMC or its licensor during the Term of the Agreement will remain the property of MMC or its licensor. During the Term of this Agreement, Customer will not: (i) reverse engineer or otherwise attempt to reconstruct or discover the source of the Software; (ii) attempt to modify, adapt or create derivative works based upon the Software; (iii) allow a third party to access, or use the Software; (iv) disclose the results of any benchmark test of the Software to a third party without the prior written approval of MMC; or (v) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement. This Agreement does not grant Customer any rights in connection with any trademarks or service marks of MMC, whether registered or unregistered trademark or a tradename of MMC in Canada, United States, and/or other countries.
7. MMC MATERIALS. In connection with performance of the Services and at the sole discretion of MMC, MMC may provide to Customer and its authorized users, in addition to the licensed Services, certain materials, including, without limitation, computer software, data, access to, and use of, computer hardware, hypertext links, documentation or information developed or provided by MMC or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to Customer, and other know-how, methodologies, equipment, and processes used by MMC to provide the Services to Customer ("MMC Materials"). Unless otherwise agreed in writing, all right, title and interest in the MMC Materials, and any modifications thereto, shall remain solely with MMC without compensation, payment, royalty or claim on the part of Customer.
8. CONSULTING SERVICES. MMC may provide additional consulting or other services ("Consulting Services") in conjunction with the initial configuration and implementation, or during the Term of this Agreement. The provision of Consulting Services shall be governed by this Agreement as a "Service". Should Customer desire to obtain Consulting Services, Customer will submit details of such in writing to MMC. MMC may, at its sole option, elect to perform the Consulting Services and the parties will execute a statement of work setting forth the Consulting Services to be performed. Unless otherwise agreed, the Consulting Services shall be performed during MMC's normal business hours, and any statement of work that is provided shall (1) be made in writing; (2) reference this Agreement (or if not, be deemed to reference this Agreement); (3) be executed by authorized representatives of both Customer and MMC; and (4) if no rates or compensation is specified, be provided at MMC's standard rates. MMC shall use reasonable commercial efforts to provide the Consulting Services in accordance with any dates or delivery schedule that may be set forth in the statement of work.
9. CUSTOMER CONTENT. Customer shall be solely responsible for providing, updating, uploading, downloading, importing, exporting and maintaining any and all files, data, and information, within, displayed, compiled, linked or transmitted to, from or through the Services, including, without limitation, trade or service marks, domain names and text made available to the public ("Customer Content"). The Customer Content shall specifically include any Customer data in databases or reports that are used in connection with, or created as a by-product of, the Services, or any registered domain names provided by Customer or registered on behalf of Customer in connection with the Services. Customer grants to MMC a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet the Customer Content, if such is intended to be made public or distributed publicly. Such license shall be used in connection with MMC's performance or enforcement of this Agreement only. All right, title and interest in the Customer Content shall remain solely with the Customer.
10. OBLIGATION FULFILLMENT. Each party warrants to each other that it has the right and authority to enter into, and to grant the rights and perform the obligations described in this Agreement. MMC specifically does not warrant that the Software or Services will meet all of Customer's requirements, that the use of the Software or Services will be uninterrupted or error-free, that patches or workarounds will be provided, or that errors will be corrected in updates. MMC disclaims any and all liability resulting from or related to any data loss, data damage, breach of Internet security or disruption of Customer's connections to the Internet, due to force majeure, third party activities (including denial of service or other external actions), or any reason beyond MMC's commercially reasonable control.
11. INTERFERENCE. Customer shall at all times exercise care and judgment to prevent interference or damage to MMC's equipment or Software in the Facility or any other Services provided to other parties. In the event interference is encountered by either party, both MMC and Customer agree to exercise their best efforts to promptly and diligently resolve such problems after notice of any such interference. In the event that such efforts are unsuccessful, MMC may at its option attempt to resolve said interference problems at a cost approved and reimbursed by Customer. Interference shall be deemed to be any material adverse effect, whether physical or a business impediment, on either the operations of MMC or any of its other customers using the Services.
12. TAXES. Unless otherwise agreed to by MMC in writing, all fees and any other charges described in this Agreement and its schedules are exclusive of, and Customer shall pay, all taxes related to all Services provided by MMC, including without limitation, provincial, state or federal sales, VAT, goods and services taxes, withholding taxes, import tariffs, levies and other amounts, exigible on such amounts (save for amounts attributable solely to the income of MMC). In the event MMC is required to withhold or should have withheld any United States, Canadian or other taxes from any amounts due to or collected on behalf of the Customer hereunder, or in the event Customer is required to withhold any United States or other taxes from any amounts due to the MMC hereunder, the aggregate payments due to MMC hereunder shall be grossed up or increased such that the net amount remitted to or paid to the credit of MMC shall be the amount due, and the Customer shall remit such withheld taxes directly to the appropriate government authority and provide evidence of payment of same to MMC. Customer agrees that MMC may (at our option) re-submit or accumulate charges incurred during Customer billing cycles and submit them as one or more aggregate charges during or at the end of each cycle, and that we may delay obtaining authorization from Customer's card issuer until submission or re-submission of the accumulated charge(s).
13. USE OF SERVICES. Customer warrants that it shall use the Services and resulting data for legal purposes only, and in compliance with all applicable laws, rules, regulations, treaties, and industry standards, including acceptable use or content management policies implemented by MMC. Customer is solely responsible for the content of any postings, data or transmissions while using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that neither it nor any third party will use the Services for unlawful purposes (including, without limitation, unlawful transmission of email or other electronic communications, infringement of copyright or trademark, misappropriation of trade secrets, fraud, invasion of privacy, pornography, obscenity, defamation, and illegal use, transportation or sale of tobacco, controlled substances and firearms), or to interfere with, or disrupt, other network users, network services or network equipment. Disruptions include, without limitation, repeated harassment of other network users, wrongly impersonating another user, falsifying one's network identity for improper or illegal purposes, propagation of computer viruses, and using the network to make unauthorized entry to any other machine accessible location, via the network. If MMC has reasonable grounds to believe that Customer or any third party is utilizing the Services for any such illegal or disruptive purpose, or in the event that the Customer shall be the subject of a denial of service attack, viral or email relaying action, or any other action which may negatively impact upon any of MMC's other activities or that of any other persons in the Facility, MMC may suspend or terminate services immediately, without prior notice to Customer. Customer shall defend, indemnify and hold harmless MMC from and against all liabilities and costs (including reasonable solicitor and client costs on a full indemnity basis) from any and all claims by any person arising out of Customer's or third parties' use of the Services, including those without consent. Customer further agrees that it will not use the Services in any way that may cause harm to MMC, its affiliates, resellers, distributors, service providers and/or suppliers, or any customer thereof. MMC shall at all times be permitted to access or release information to law enforcement entities, in order to conduct or permit the investigation of any complaints, fraud, crime, threats, miss-use or abuse being perpetrated by any Customer or others.
14. MONITORING OF SERVICES. Customer acknowledges and agrees that MMC may, but is under no obligation to, monitor, track, or otherwise perform inspections of the use of Services to determine Customer's compliance with this Agreement. MMC expressly reserves the right, at its sole discretion, to suspend, block and/or remove any content which MMC reasonably believes is, or may be, in violation of this provision and, if necessary, to block Customer's access to the Services or Software. Customer further acknowledges MMC's duty to cooperate with any regulatory authority to the fullest extent of the law upon MMC's receipt of a valid court order, subpoena, or authorized agency notification, and agrees that it shall provide all such reasonable assistance as MMC may request for the purpose of addressing any third party concerns regarding content contained on any website and/or the use of any data generated through the use of the Services. Customer acknowledges that its failure to comply with this provision may result in the termination of the Services and any license of Software by MMC without liability.
15. CONFIDENTIALITY OF CUSTOMER CONTENT. MMC will treat as confidential the Customer Content and documents resulting from the Services. The Customer Content is the sole and exclusive property of the Customer, and MMC will not have any rights, title or interest to Customer Content. Should MMC require access to the Customer Content in order to fulfill its own duties under this Agreement, Customer agrees that MMC is authorized such access, as is reasonable under the circumstances. Should MMC be required to give access of Customer Content to any of its subcontractors, vendors, software licensors or any other third party in order to fulfill MMC's own duties under this Agreement, Customer will permit such access, as reasonable under the circumstances, to specifically identified third parties. As a precondition for access by such third party, each must first agree in writing to maintain the confidentiality of any Customer Content to which they are exposed no less stringently than as required by this Agreement. MMC will not use any Customer Content in any manner except as necessary to fulfill its obligations under this Agreement. Information will not be deemed confidential if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
16. USAGE TRACKING. Notwithstanding any other provision herein, MMC shall be entitled to monitor all data administered, and implement data tracking and site/traffic/database usage modelling procedures in respect of all customers. MMC shall own the resultant data and information, and shall be entitled to utilize, release or publish aggregated results derived from such activities (provided such published data shall not identify, or allow the identification of, a Customer's specific users or information). MMC shall be entitled to utilize the results of such data or tracking for the purposes of development research or improvement of the Services for all or any portion of its customers.
17. MMC INDEMNITIES. MMC will indemnify Customer from and against any loss, damage, liability or expense (including, but not limited to reasonable legal fees) incurred by or awarded against Customer, to the extent that it is based upon a claim that the Services or Software, as provided by MMC to Customer under this Agreement and used within the scope of this Agreement, infringes any Canadian or U.S. copyright issued as of the Effective Date, or incorporates any misappropriated trade secrets. MMC's obligations to Customer under this Section shall only be valid provided that Customer: (a) promptly notifies MMC in writing of the claim; (b) grants MMC sole control of the defence and settlement of the claim, provided that MMC will not settle a pending matter without first notifying Customer (if the Customer is part of such proceedings); and (c) provides MMC with all assistance, information and authority required for the defence and settlement of the claim. If such event, or if Customer's use of any of the Services or Software hereunder is, or in MMC's opinion is likely to be, enjoined due to the type of infringement specified above, MMC may, at its sole option and expense: (a) procure for Customer the right to continue using such Services or Software under the terms of this Agreement; (b) replace or modify such licensed Software so that it is non-infringing and substantially equivalent in function to the Services or Software; or (c) terminate Customer's rights and MMC's obligations hereunder with respect to such Services or Software with no further liability. MMC will have no indemnification obligation for any claim of infringement or misappropriation to the extent that it results in whole or part from: (a) modification to the licensed software made by a party other than MMC; (b) failure of Customer to use updated or modified Services or licensed Software provided by MMC to avoid a claim of infringement or misappropriation; (c) combination of the Services or Software with other systems, products, processes or materials to the extent that such claim would have been avoided without such combined use of the Services or Software; or (d) compliance by MMC with designs, plans or specifications furnished by or on behalf of Customer.
18. CUSTOMER INDEMNITIES. Customer will indemnify MMC from and against any loss, damage, liability or expense (including, but not limited to reasonable legal fees) incurred by or awarded against MMC, to the extent that it is based upon a claim that data or Customer Content or software under license provided by the Customer to MMC under this Agreement and used within the scope of this Agreement, infringes any Canadian or U.S. patent or copyright issued as of the Effective Date, or incorporates any misappropriated trade secrets, or otherwise is contrary to law. Customer shall indemnify and hold MMC harmless against any claims of liability, losses or damages of any kind, including economic loss or personal injury, death, or property damage resulting from or arising out of the use of the Services or Software by Customer, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the intentional or negligent acts of MMC, or its servants or agents, but including (i) defamation, discrimination, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; (iii) spamming, providing emails or other electronic communications contrary to MMC policies or contrary to any legal requirements, or any offensive, harassing or illegal conduct; (iv) any damage or destruction to the customer content of others or the equipment of MMC caused in whole or in part by Customer or Customer's designees; (v) any other damage arising from the breach of Customer's representation and warranties in this Agreement, or from Customer's acts or failure to act, (v) cause damage or injury to any persons or property, or (vi) impair or cause harm to the reputation of MMC. Illegal and/or unauthorized uses of the Services or Software will be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress.
19. BACKUP. Customer shall be solely responsible for providing, updating, uploading, downloading, importing, exporting, backing up, and maintaining any and all files, data, and information, within, displayed, linked or transmitted to, from or through the Software and Services. Further, until Customer can verify the Software and Services functionality, it should operate this in tandem with existing methods, to ensure that the data integrity and output meet its expectations. The provisions of this section shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to use the Services and Software after termination of this Agreement. If Customer has elected to obtain backup as part of the "Services", then MMC will make commercially reasonable efforts to create and protect back-up copies of Customer Content and data, but MMC shall have no liability or duty of indemnification related to lost or corrupt data, or inability to restore or utilize same for any reason.
20. LIMITATION OF LIABILITY; NO WARRANTY. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES AND SOFTWARE IS AT CUSTOMER'S SOLE RISK, AND NEITHER MMC NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE USE OF THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; MMC NOR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES AND SOFTWARE. THE SERVICES AND SOFTWARE ARE MADE AVAILABLE ON AN "AS IS" BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED EXCEPT AS SET OUT ABOVE, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES OR CONDITIONS WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT, OR SUCH CREDITS APPLICABLE PURSUANT TO THE TERMS HEREIN. NEITHER MMC NOR ANYONE ELSE INVOLVED IN DELIVERING OR MAINTAINING THE SERVICES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, LOSS OF PROFIT, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICES AND SOFTWARE OR INABILITY TO USE OR ENJOY THE SERVICES AND SOFTWARE OR OUT OF ANY BREACH OF ANY WARRANTY OR CONDITION. IN NO EVENT WILL MMC'S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER, IF ANY, FOR THE SERVICES FOR THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM. Without limiting the generality of the foregoing, MMC shall not be liable in respect of any failure or deficiency in respect of the Services or Software which may be due to a problem in the actions of MMC or the Facility, including but not limited to any software or hardware failures, power failure, spikes or brownouts, Internet connection failure, equipment, Software or Facility functionality or access failure, flooding, fire, HVAC failure or any malfunction. The parties acknowledge and agree that the allocation of risk is reflected in the price paid and is also recognition of the fact that, among other things, it is not within MMC's control how and for what purpose the Services or Software are used by the Customer. This limitation will apply even if MMC has been advised of, or is aware of, the possibility of such damages.
21. DEFAULT. If either party defaults in fulfilling any of the covenants of this Agreement for defaults not constituting failure to pay amounts owing to MMC, and such default shall continue for fifteen (15) days after service by the non-defaulting party of written notice upon the defaulting party specifying the nature of said default, or, if the said default so specified shall be of such a nature that the same cannot be reasonably cured or remedied within such fifteen (15) day period, if the defaulting party shall not in good faith commence the curing or remedying of such default within such fifteen (15) day period and shall not thereafter diligently proceed therewith to completion, then in any one or more of such events this Agreement shall terminate and come to an end as fully and completely as if such date were the day herein definitely fixed for the end and expiration of this Agreement. Amounts overdue shall bear interest at one and one-half percent (1.5%) per month (which equals eighteen per cent (18%) per annum) on the total amount due but not paid; but if such rate is in excess of any allowable rate, the late charge will be the maximum rate allowed by law. The late charge will be imposed until all of the overdue amounts are paid, but no late charge will be charged on other late charges.
22. LATE PAYMENT. In the event payment is not received by MMC from Customer (whether by credit card or other means) or processing is not successful within 7 days after the due date, or in the event any prior charges are reversed, MMC may, at its sole discretion and without notice to the Customer, (a) suspend its performance under this Agreement and deny Customer's and its designated users' access to and use of the Services until Customer is back in good standing, or (b) terminate this Agreement and Customer's and Customer's designated users' access to and the use of the Services.
23. SERVICE UPDATES. During the Term, MMC may vary or modify the nature and quality of the Services at any time, or unilaterally amend any of the terms and conditions of this Agreement applicable to the Services, upon providing not less than thirty (30) days notification to Customer. Upon receipt of such notification, Customer shall have such period of thirty (30) days to notify MMC that it objects to such change and that it elects to terminate the Services at the end of the current billing cycle. If Customer does not send an Objection to MMC within such thirty (30) day period, Customer shall be deemed to have accepted such changes to the terms and conditions or the nature, character or quality of the Services as set out in the notification of such change. Unless otherwise expressly provided, the provision by MMC to Customer of any updates, upgrades, enhancements and/or modifications shall be subject to all covenants and conditions of this Agreement. Continued use of the Services after changes are implemented constitutes Customer's acceptance or deemed acceptance of the terms and prices as modified by the posted changes. Unless MMC is notified of any discrepancies or irregularities within forty five (45) days after they first appear in your statement, the billings will be deemed accepted by Customer for all purposes, including resolution of inquiries made by any card issuer.
24. IP ADDRESSES. MMC may assign on a temporary basis, Internet Protocol Addresses ("IP addresses") from the address space assigned to MMC. Customer acknowledges that IP addresses may be assigned to Customer as part of the Services, and are not portable. No right or title in or to the IP addresses is conveyed to Customer pursuant to this Agreement. MMC reserves the right to change IP Address assignments at any time upon reasonable notice to Customer, provided that it shall use all reasonable efforts to minimize any disruption to Customer as a result of such reassignment.
25. ASSIGNMENT. This Agreement may not be sold, licensed, subleased, assigned or transferred at any time, except to Customer's principal, affiliates or subsidiaries of its principal or to any company upon which Customer is merged or consolidated, without the prior written consent of MMC, but may be sold, licensed, subleased, assigned or transferred at any time by MMC.
26. NOTICES. All notices hereunder must be in writing and shall be deemed valid, immediately if sent by email, within 21 day if sent by prepaid mail, or upon personal service or actual courier delivery to such address that the party to be notified may have designated to the sender by like notice.
27. ENTIRE AGREEMENT. It is agreed and understood that this Agreement and its schedules contains all agreements, promises and understandings between MMC and Customer and that no verbal or oral agreements, promises or understandings shall be binding upon either MMC or Customer in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless specifically further agreed by MMC.
28. AMENDMENTS; WAIVER; SEVERANCE. A term or condition of this Agreement can be waived or modified only by written consent of both parties. No failure or delay by MMC to act on a breach of this Agreement shall constitute a waiver of any of MMC's rights and remedies under this Agreement or at law. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, that provision shall be severed from this Agreement and the remaining provisions shall remain in full force.
29. FORCE MAJEURE. Except for Customer's obligations to make payment hereunder, neither party will be deemed to be in breach of this Agreement, or be entitled to damages or credits pursuant to this Agreement, for any failure or delay in performance caused by reasons beyond its reasonable control, caused by the other party or by an act of God, war, civil disturbance, court order, labour dispute, or other cause beyond its reasonable control, including without limitation failures or fluctuations in power, heat, light, air conditioning or telecommunications equipment.
30. GOVERNING LAW; ATTORNMENT. This Agreement is governed under the laws of the Province of Alberta, Canada, regardless of conflicts of law principles. Any disputes or legal proceedings arising out of or relating to this Agreement shall as they may pertain to MMC or its affiliates, at MMC's election, be determined via arbitration in the Province of Alberta, Canada (pursuant to the arbitration rules designated by MMC), or in the courts in the Province of Alberta, Canada. The Parties agree that the performance of this Agreement, in all its aspects as it pertains to the Services, does not take place outside of this jurisdiction of MMC, and performance of this Agreement, in all aspects as it pertains to MMC, its affiliates and Customer, does not take place outside of the jurisdiction of Province of Alberta, Canada.
31. LEGAL PRODUCTION DEMANDS. In the event MMC receives a request or demand from Customer or any third party to preserve and/or produce data or records related to Customer, MMC will comply with all applicable laws and legal obligations related to such request or demand and may do so without liability to Customer. Where permitted by law to do so, MMC may inform Customer of any such request or demand from a third party. Any costs or expenses incurred by MMC in complying with any such request or demand, and any Fees where such compliance requires additional Services, will be paid by Customer immediately upon invoice therefor.
32. ENFORCEMENT. In connection with any enforcement action to enforce the provisions and the rights granted by this Agreement, or should litigation arise out of this Agreement, MMC shall be entitled to recover all expenditures including reasonable legal fees and costs on a full reimbursement basis in connection therewith, including appellate proceedings and post-judgment proceedings and costs of prosecution.
33. ENGLISH; SURVIVAL; SALE OF GOODS. It is at the express wish of the parties that this agreement and all related documents have been drawn up in English. Les parties acceptent d'un commun accord que la presente entente soit redigee en anglais. Unless otherwise explicitly stated, these terms will survive termination of access to the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE ARE INHERENT RISKS ASSOCIATED WITH A SYSTEM SUCH AS RR. MANY FEATURES INVOLVE THE TRANSMISSION, VALIDATION AND MANIPULATION OF DATA, AND IF PERFORMED ERRONEOUSLY, MAY RESULT IN LOSS OR CORRUPTION OF DATA. CUSTOMER SHALL USE RR AT ITS SOLE RISK AND DISCRETION. MMC SHALL NOT BE RESPONSIBLE FOR ACTIONS PERFORMED BY ANY AUTHORIZED USER OF CUSTOMER THAT RESULTS IN DATA LOSS OR CORRUPTION BY UTILIZING THE FUNCTIONS AND FEATURES OF RR.
As of the Effective Date, the Services comprising RR are as follows:
1. APPLICATION AND DATABASE HOSTING
a. All features of RR are hosted by MMC on MMC infrastructure in the Facility, including FTP/SFTP(SSH), HTTP/HTTPS and the underlying 3rd party database engine.
2. 3RD PARTY DATABASE ENGINE
a. The underlying database engine, on which RR is built, as of the Effective Date, is Microsoft SQL Server 2008 R2 Enterprise Edition.
a. All technical support requests must be directed to firstname.lastname@example.org
b. Technical support staff will respond to requests within 1 business day
c. In case of emergency ONLY, call 1-587-225-3474 or if no answer call 1-587-225-8987
d. Support will be subject to additional billing, at the election of MMC, in relation to matters that are addressed in online materials, constitute training, caused by activities that are contrary to the Customer obligations, caused by errors in usage by Customer, and for long distance or out of pocket expenses.
4. SCHEDULED MAINTENANCE
a. MMC will make every reasonable effort to maintain uninterrupted access to RR, 24 hours a day, 7 days a week, 365 days a year, however, MMC makes no assurances, representations, warranties or conditions are provided with respect to the system performance (and provides no compensation or credit in relation to downtime).
b. However, MMC may periodically perform scheduled maintenance tasks that may cause RR to be inaccessible. In such an event, MMC will provide Customer with reasonable notice and an estimated window of downtime.
C. CUSTOMER ACKNOWLEDGES MMC'S RIGHT TO PERFORM SCHEDULED MAINTENANCE AND CUSTOMER FURTHER ACKNOWLEDGES THAT MMC DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM ANY NEGATIVE IMPACT ON CUSTOMER DURING SUCH SCHEDULED DOWNTIME.
5. SYSTEM ACCESS AND SECURITY
a. Customer access to the RR system will be via the website located at http://www.relevancereactor.com
b. Once logged in, Customer will be directed to the secure client area where all requests are transmitted via the HTTPS secure protocol.
c. Customer's users have the option to "remember" login credentials using cookies, however this is not recommended due to the risk of unauthorized access to Customer account by others that gain access to the computer on which Customer's user has "remembered" a login.
6. USER PERMISSIONS
a. Customer can optionally instruct RR support staff to limit permissions to certain of its authorized users. However, MMC will not be responsible for actions performed by an authorized user if they were erroneously granted permission by the Customer.
7. PERMISSION MANAGEMENT
Customer acknowledges that in relation to authorized users:
a. The maximum number of authorised users shall not exceed the number set by MMC.
b. It will not allow or suffer any password to be used by more than one individual authorised user unless it has been reassigned in its entirety to another individual, in which case the prior user shall no longer have any right to access or use the Services.
c. Customer shall maintain a written, up to date list of current authorised users and provide such list to MMC upon written request at any time or times.
d. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify MMC.
8. DATABASE MANAGEMENT
a. Customers can create an unlimited number of databases, each with 100% customizable data fields.
b. A database can contain an unlimited number of data fields.
c. RR contains numerous built-in data fields that Customer may optionally use.
d. Customer is not required to define how databases are indexed. The RR system will automatically create indexes as deemed necessary.
9. DATA REJECTION
a. Customer can reject data records in the following ways:
i. Customer can define custom data field validations and/or use the built-in data field validation definitions to reject new data.
ii. Customer can optionally define de-duplication definitions to reject new or existing data.
iii. Customer can define an "Inclusion" rejection, which will reject records from one database when NOT matched with records from another database.
iv. Customer can define an "Exclusion" rejection, which will reject records from one database when MATCHED with records from another database.
b. When data is rejected before being imported into an active database, it is considered a "Pre-Import Data Rejection"
c. When data is rejected after it has been imported, it is considered a "Post-Import Data Rejection"
d. When data is rejected from an active database, it is stored in associated Pre-Import and Post-Import databases.
E. DATA REJECTION AND DE-DUPLICATION IS A FLEXIBLE AND POWERFUL FEATURE, BUT HAS INHERENT RISKS ASSOCIATED WITH IT, DUE TO THE POSSIBILITY OF ERRONEOUS DEFINITIONS RESULTING IN VALID DATA BEING REJECTED AND DELETED.
F. CUSTOMER ACKNOWLEDGES AND AGREES THAT USING VALIDATION, DE-DUPLICATION AND REJECTION DEFINITIONS ARE AT THE SOLE RISK OF THE CUSTOMER. MMC SHALL NOT BE RESPONSIBLE FOR ERRONEOUS USE OF THESE DEFINITIONS RESULTING IN DATA RECORDS BEING REJECTED AND LOST.
IMPORTANT: REJECT DATA (PRE AND POST IMPORT) IS NOT HELD INDEFINITELY. SEE "DATABASE AND FILE DATA PURGING" WHEN LOGGED INTO THE CLIENT AREA FOR THE LATEST UPDATE ON THE TIME AFTER WHICH REJECT DATA IS DELETED. NOTE: CUSTOMER CAN DOWNLOAD FULL DATA REJECT RECORDS AT ANYTIME AND IT IS THE RESPONSIBILITY OF THE CUSTOMER TO MAINTAIN REJECTED RECORDS BEYOND THE TIMEFRAME AVAILABLE IN RR
10. DATA ARCHIVING
a. Customer can optionally define archiving parameters for each database. The archiving parameters can be changed at anytime and Customer may choose to not archive data records. If Customer chooses to archive data records, Customer must retain at least the most recent 60 days worth of data in their active database (based on the date of import).
b. The archiving process will "move" data from an active database to its associated archive database. No data is lost during this process.
IMPORTANT: ARCHIVE DATA IS NOT HELD INDEFINITELY. SEE "DATABASE AND FILE DATA PURGING" WHEN LOGGED INTO THE CLIENT AREA FOR THE LATEST UPDATE ON THE TIME AFTER WHICH ARCHIVE DATA IS DELETED. NOTE: CUSTOMER CAN DOWNLOAD FULL ARCHIVE RECORDS AT ANYTIME AND IT IS THE RESPONSIBILITY OF THE CUSTOMER TO MAINTAIN ARCHIVED RECORDS BEYOND THE TIMEFRAME AVAILABLE IN RR
11. DATA AND FILE BACKUP
a. RR is hosted in a state-of-the-art facility with high degrees of redundancy and failover. However, THERE IS NO GUARANTEE AS IT RELATES TO LOSS OF CUSTOMER DATA.
B. RR performs a nightly backup of Customer database data (including active, archive and rejected data) and copies a duplicate of all import files onto a device that is separate from the primary data storage device, but that is still on the same server network and within the same facility. RR DOES NOT PERFORM OFFSITE BACKUP. IT IS THE RESPONSIBILITY OF THE CUSTOMER TO DOWNLOAD DATABASE & FILE DATA AND STORE IT OFFSITE IN CASE OF CATASTROPHIC FAILURE OF RR.
C. BECAUSE BACKUPS ARE PERFORMED ONLY ONCE EVERY 24 HOURS, IT IS POSSIBLE (ALTHOUGH HIGHLY UNLIKELY DUE TO NUMEROUS REDUNDANCIES) FOR UP TO 24 HOURS (PLUS THE TIME REQUIRED TO RESTORE) OF DATABASE DATA TO BE LOST IN THE EVENT OF A TOTAL FAILURE OF THE PRIMARY STORAGE DEVICE. ANY DATA IMPORTS, MODIFICATIONS AND DELETIONS THAT OCCURRED DURING THIS PERIOD WOULD NEED TO BE RE-RUN.
D. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS LEVEL OF DATA PROTECTION IS REASONABLE AND THE CUSTOMER ACCEPTS THIS BY EXECUTING THE AGREEMENT.
12. DATA MODIFICATION AND DELETION
a. Customer can modify and delete data within an active database. This is done by submitting an "Update" or "Delete" command to the underlying database system.
b. This is a powerful and flexible feature, but is considered an advanced feature as there is a risk of data loss if performed incorrectly.
C. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY "UPDATE" OR "DELETE" PERFORMED BY THE CUSTOMER IS OUTSIDE OF THE CONTROL OF MMC AND THESE ACTIONS SHALL BE PERFORMED AT THE SOLE RISK OF THE CUSTOMER. MMC SHALL NOT BE RESPONSIBLE FOR ERRONEOUS "UPDATE" OR "DELETE" STATEMENTS RESULTING IN DATA LOSS.
13. DATA IMPORT
a. Customer can manually import data by uploading a file or text block
b. Interpretation of the data within a file or text block is defined by Customer using import templates. Import templates instruct RR how to map data from the file or data block to a field within a database
c. Customer can also configure and schedule RR to import data in any of the following ways:
i. Remote HTTP/HTTPS
1. Pickup files from remote HTTP locations. The choice to download via HTTP or HTTPS (secure) is at the sole discretion and risk of Customer.
ii. Local HTTP/HTTPS (Real-Time)
1. Accept individual records via HTTP/HTTPS (hosted by MMC). The choice to accept via HTTP or HTTPS (secure) is at the sole discretion and risk of Customer. Customer must use Client Tokens for local HTTP/HTTPS (see "Client Tokens" below). Delays may be as much as 60 minutes from the time a new record is submitted to the time it is imported.
iii. Remote FTP/SFTP(SSH)
1. Pickup files from remote FTP locations. The choice to download via FTP or SFTP (secure SSH) is at the sole discretion and risk of Customer.
iv. Local FTP/SFTP(SSH)
1. Accept files via Customer configured FTP site (hosted by MMC)
2. The choice to accept via FTP or SFTP (secure SSH) is at the sole discretion and risk of Customer.
1. Pickup file attachments from a Customer owned POP email account.
14. DATA EXPORT
a. Customer can manually export data in the following ways:
I. DOWNLOAD A HISTORY OF IMPORT AND EXPORT DATA FILES THAT ARE MAINTAINED BY RR FOR THE PERIOD OF TIME SPECIFIED IN "DATABASE AND FILE DATA PURGING" WHEN LOGGED INTO THE CLIENT AREA.
ii. Perform a complete export and download of active, archive or reject data.
iii. By defining an "Export Definition" with details of the database, data fields, order etc. of data to export to a file and then download.
b. Customer can also configure and schedule RR to export data in any of the following ways using an "Export Definition":
i. Remote HTTP/HTTPS
1. Deliver files to remote HTTP locations. The choice to upload via HTTP or HTTPS (secure) is at the sole discretion and risk of Customer.
ii. Local HTTP/HTTPS
1. Allow the pickup of files from a HTTP/HTTPS site (hosted by MMC). The choice to use HTTP or HTTPS (secure) is at the sole discretion and risk of Customer. Customer must use Client Tokens for local HTTP/HTTPS (see "Client Tokens" below)
iii. HTTP/HTTPS (Real-Time)
1. Allows Customer to define an "Export Destination" that delivers records to the destination in "near" real-time via HTTP/HTTPS POST or GET. Delays may be as much as 60 minutes from the time a new record is imported to the time it is exported
iv. Remote FTP/SFTP(SSH)
1. Deliver files to remote FTP locations. The choice to upload via FTP or SFTP (secure SSH) is at the sole discretion and risk of Customer.
v. Local FTP/SFTP(SSH)
1. Allow the pickup of files from Customer configured FTP site (hosted by MMC)
2. The choice to use FTP or SFTP (secure SSH) is at the sole discretion and risk of Customer.
vi. Email Attachment
1. Deliver a file using insecure email attachment.
15. LOCAL (hosted by MMC) FTP SITE MANAGEMENT
a. RR allows Customer to configure and manage FTP sites for import and export
b. Customer can create an unlimited number of FTP sites
c. Customer acknowledges and agrees to the following regarding MMC hosted FTP sites:
i. It is the responsibility of the Customer to take commercially reasonable steps to protection FTP user names and passwords.
ii. MMC shall, at it sole discretion, disable an FTP account if it has reasonable grounds to believe that the FTP account is being abused or compromised.
III. IMPORTANT: LOCAL FTP ACCOUNT FILES ARE NOT HELD INDEFINITELY. SEE "DATABASE AND FILE DATA PURGING" WHEN LOGGED INTO THE CLIENT AREA FOR THE LATEST UPDATE ON THE TIME AFTER WHICH FTP ACCOUNT FILES ARE DELETED.
16. CLIENT TOKENS
a. As a security measure, Customer is required to issue and utilize tokens when uploading to and downloading from local HTTP/HTTPS (hosted by MMC).
b. A token is a multi-digit string that must be passed with each request.
c. Customer has further optional abilities to enable, disable, set expiry for and require a password for tokens.
d. MMC HIGHLY RECOMMENDS THAT CUSTOMER REQUIRE A PASSWORD FOR TOKENS and to distribute the token and password in separate correspondence to the end user. Without this measure, an unauthorized user could gain access to either submit bogus records to a Customer database, or more seriously to download data files.
E. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS TOKEN FEATURE PROVIDES REASONABLE AND SUFFICIENT MECHANISMS TO SECURE LOCAL HTTP/HTTPS REQUESTS, AND THAT MMC WILL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO CUSTOMER DATA THAT RESULTS FROM CUSTOMER'S UTILIZATION OF TOKEN FEATURES.
Service Order Form
The Agreement shall commence on the Effective Date and continue for an indefinite number of months, until terminated with not less than 30 days prior notice, or until otherwise terminated as per the Agreement.
SERVICES ORDERED (All amounts are USD)
The Services to be ordered by Customer and to be delivered by MMC are as set forth in the following table.
* MMC currently utilizes data compression techniques when
storing Customer database data. MMC reserves the right to not use compression
and to modify the
PRICING CHART (All amounts are USD)
MMC accepts payment for fees due by credit card only (Visa and MasterCard). MMC does not accept payment by cheque due to the nature of its billing model (where amounts are due immediately upon billing).