Identification of Parties
The following Agreement is entered into
BETWEEN: BitWP™, a trademark of EP4 Corporation, a corporation duly constituted pursuant to the Canada Business Corporations Act, hereinafter referred to as the “Service Provider”, having its head office at 575 Du Parvis Street, Québec City (Québec), G1K 9G5, Canada.
AND: any person receiving one or more Services available on the Service Provider Website, including the representative of a legal person or corporation, hereinafter referred to as the “Client”.
Interpretation and Application of this Agreement
Effective Date
The Terms of this Agreement are effective and were last updated on October 2, 2018.
Definitions
Service Provider, Client, and Parties
The words “Service Provider” and “Client” refer to the Parties identified in section 1, and the word “Parties” includes both the Service Provider and the Client.
Website
The “Website” refers to bitwp.io, property of the Service Provider, including all texts, images, products, services, and features available on the Website.
Services
The “Services” refers to the hosting services or all other services available on the Website, as defined in section 3.1.
Specifications
The “Specifications” refers to the specifications and characteristics of the Service selected by the Client.
Servers
The “Servers” refer to the technological facilities of the Service Provider supporting its Services offered to the Client according to the Specifications of the selected Service.
Content
The “Content” refers to the files and data of the Client hosted on the Servers of the Service Provider, including, but not limited to, the Client’s website, including the web pages, the text, the Graphic Elements, the Software Components, the Scripts and the databases.
Modifications
The “Modifications” refer to any change applied on the Client’s Server, including but not limited to, changes made using the account area, SSH, SFTP, or changes made directly from the Client’s website(s).
Agreement
The “Agreement” refers to the totality of the Web Hosting Service Agreement.
Duration
The “Duration” refers to the Duration of the Services. The Services can be billed monthly or annually.
Hosting Rules
The “Hosting Rules” refer to the Hosting Rules of the Service Provider herein listed in this Agreement, shall form an integral part hereof, and shall apply for the whole Duration of this Agreement.
Other Policies
The “Other Policies” refer to any policies, rules, terms, and conditions that are made available on the Website.
Law
The “Law” includes all applicable laws and regulations in Québec.
Object
Services
Hosting Services
The Service Provider agrees to provide the Client with the following hosting services:
a) to install and set up the Server in accordance with the Specifications;
b) to carry out testing on the Server;
c) to provide the Client with a username and a password to access to the Server, via SFTP (“Secure File Transfer Protocol”), SSH, or any other means set forth in the Specifications;
d) to host the Content of the Client in accordance with the Specifications;
e) to provide the Client with the information and documentation regarding access to the Server; and
f) to provide all other Services contemplated in this Agreement or the Specifications.
WordPress Maintenance Services
The Service Provider agrees to provide the Client with the following maintenance and security services:
a) to apply updates in accordance with the Specifications;
b) to make daily backups;
c) to make real-time backups in accordance with the Specifications;
d) to monitor SEO;
e) to monitor performance;
f) to monitor uptime in accordance with the Specifications;
g) to run security checks in accordance with the Specifications;
h) to provide support and development in accordance with the Specifications;
i) to generate and provide a report in accordance with the Specifications.
Service Duration
Subject to all additional Services required by the Client, the Service Duration shall be the Duration set forth in the Specifications.
Consideration
Compensation
In consideration for the Services, the Client shall pay to the Service Provider the price set forth in the Specifications, together with all applicable taxes.
Invoicing
Unless notice to notice to the contrary is provided by the client, the Service Provider shall send its invoices to the email address specified by the Client. The Client must pay the first invoice before the commencement of the Agreement. The Client shall pay other invoices within Fourteen (14) days from the date of the invoices, which will be issued Seven (7) days before the end of the last paid period.
Payment
Terms and Conditions of Payment
The Client shall pay in advance the Service Provider the Recurring Monthly Fees specified in the Specifications. Except for the first invoice, which must be paid by the Client to the Service Provider before the commencement of the Agreement, all amounts will be payable within Seven (7) days from the date of the invoice, which will be issued by the Service Provider Seven (7) days before the end of the last paid period.
Bounced checks are subject to penalty fees of USD20.
Payment obligation
Upon Hosting Services purchase, the Service Provider reserves space and resources on its Servers for the needs of the Client. The Client shall pay its Service even if he is not making any use of it.
Suspension of Services in the Event of Failure to Pay
If, after the Service Provider has sent a demand for payment, the Client refuses, without right, to pay the Service Provider the amounts payable or reimbursable pursuant to this Agreement in accordance with the terms and conditions of payment set forth in the Specifications, the Service Provider may suspend performance of the Services in question, without further notice or delay, the whole without prejudice to any of the Service Provider’s other rights pursuant to this Agreement.
Rates
Upon Thirty (30) days or greater written notice, the Service Provider may change any fees or rates payable under this Agreement. In this event, the Client can decide to cancel the renewal of their Service. Failing any such action by the Client, the Client will be deemed to have accepted the new rates, which will apply to the next billing cycle following the notice period.
Change of Tax Rates or New Taxes
If the rate of any applicable tax is changed or if a new tax is added during the performance of this Agreement, any such new rate or new tax shall be applicable, and the total price shall be adjusted accordingly.
Guaranteed satisfaction
The Client has Fourteen (14) days following the first payment date to cancel his Service with a refund, but only upon the Client compliance with this Agreement. Only new Clients are eligible for a refund.
Hosting Rules
The Service Provider’s hosting rules hereinafter listed as may be modified from time to time shall apply for the whole Duration of this Agreement, subject to the Specifications having priority over any incompatible Hosting Rule, the Client agreeing to be fully bound by these:
Compliance with the Law
The Client shall comply with all applicable Laws and regulations, including, without limitation, the laws and regulations regarding intellectual property, advertising, publicity contests, consumer protection, protection of personal information and protection of minors.
The Client shall use the Services of the Service Provider only for lawful purposes and in accordance with governing Law.
In order to comply with the Law, the Service Provider can, in its sole discretion, monitor the activities and the Content of the Client on the Server. If the Service Provider considers or notices that the Server is used by the Client for illicit purposes, the Service Provider can remove any element or Content that he considers to be an infringement to the rights of third parties, and even suspend definitively its Services in its own right, without limiting the right of the Service Provider to seek damages or other legal remedy to the fullest extent permitted by law.
Evidence of the Client’s Right
Upon request from the Service Provider, the Client shall provide the Service Provider with evidence of the Client’s Right, Title or Interest in and to the Intellectual Property comprised in any Content hosted on the Server.
It is the responsibility of the Client to identify correctly any intellectual property rights that he owns.
Absence of Defect
The Content on the Server shall be exempt of any design and operation defect as well as of any known and identifiable virus.
Data Transfer
If the Client is exceeding the data transfer limit allowed in the Specifications, the Service Provider shall send to the Client a notice requiring to comply with the data transfer limit set forth in the Specifications and the Client shall pay additional fees of Ten (10) cents per extra Gigabyte of data transfer.
Backup
If the Client subscribes to a backup Service available on the Website of the Service Provider, during the time period set forth in the Specifications, the Service Provider shall keep a backup copy of the Content hosted on the Server in the case that an event of force majeure was to prevent the Client from using or continuing to use the Server.
The Service Provider is not responsible for files that can’t be restored as a result of a single specific event or cause beyond its control.
Statistics
The Service Provider makes available to the Client statistics regarding the Client’s monthly disk space and bandwidth usage.
Servers
The Service Provider is responsible for the Server used by the Client. The Client has no rights on the Server. Physical access to the Server by the Client is strictly prohibited. The Client shall not alter the Server operations in any way.
Network Uptime Guarantee
Subject to the Specifications, the Service Provider shall provide 99.9% network availability to the Server hosting the Content of the Client. Some restrictions may apply.
Server Maintenance and Update Services
The Service Provider shall regularly maintain and update the Server. All Server maintenance and update Services shall be subject to the provisions of this Agreement, in particular those relating to intellectual property, with the appropriate modifications.
Reselling
The Client, in the normal course of his business, may resell for its own customer’s use (subject to all the terms of this Agreement) any Services of the Service Provider provided to the Client pursuant to this Agreement. The Client will stay solely responsible for all fees and charges applicable under this agreement and will act as the only point of contact between his clients and the Service Provider.
Any act or omission of any such customer of the Client that would be a breach of this Agreement if committed by the Client will be deemed a breach of this Agreement by the Client himself. The Client agrees to defend, indemnify and hold harmless the Service Provider from any and all liabilities, costs and expenses, including reasonable legal fees, related to or arising from any act or omission of any such the customer that would be a breach of this Agreement if committed by the Client, and any claim by any such customer arising from use of the Agreement, Services provided by the Service Provider under this Agreement or otherwise from performance or non-performance by a Party in any manner related to this Agreement.
Temporary Suspension of the Services for Late payment
Any Service will be interrupted on past due accounts after a Fourteen (14) days notice to the Client. The Client shall pay the invoice upon reception of the notice, or else the Server access of the Client and access to the Content on his website will be temporarily suspended.
Administrative fees
The Client whose Services have been suspended is subject to a USD20 reconnect charge, in addition to any amount past due.
Immediate Threat
The Service Provider may, at its whole discretion, refuse to host the Content of the Client on the Server or put it offline without delay, if he believes that its Content, in whole or in part:
- is or may be obscene, libelous, immoral, illegal, defamatory, or heinous;
- affects or may affect the Service Provider’s reputation;
- infringes or may infringe any intellectual property right, title or interest which belongs to a third party;
- causes or may cause, directly or indirectly, damages to a third party;
- causes or may cause problems to the Server operation;
- fails to meet any one of the Hosting Rules or Specifications.
The Client may not, for any reason whatsoever, directly or indirectly, through an intermediary or not, use the Service:
- to cause or attempt to cause, directly or indirectly, damages to a third party;
- to have access or attempt to have access to a third party’s Content without his authorization;
- to modify, alter or erase, or attempt to modify, alter or erase, in whole or in part, the Content of a third party; or
- to commit or attempt to commit an illegal offense;
In any of the above-mentioned cases, the Service Provider may immediately deactivate the Service and terminate this Agreement without any notice, subject to all his rights and recourses against the Client.
Complaints
The Client shall send any complaint or policy violations to the Service Provider by email ([email protected]) or by mail at EP4 Corporation, 575 Du Parvis Street, Quebec City (QC), G1K 9G5, Canada.
Technical Support
Tools and Documentation provided by the Service Provider
The Service Provider makes available to the Client documentation and tools on the Website, and ways to contact its Technical Support. The Client has access to:
- documentation to facilitate the use of the Service;
- a form dedicated to incident reporting; and
- contact information to reach the Technical Support of the Service Provider.
Incident Reporting Procedure
In order to report an incident, the Client shall complete the form dedicated to incident reporting available on the Website. All incidents reported by the Client are centralized in one area and all history relative to each incident is available via the Client Account. When reporting an incident, the Client is responsible for providing as much information as possible related to the incident in order to speed up the resolution process.
By submitting an incident via the incident reporting form, the Client authorizes the Technical Support of the Service Provider to access the Service of the Client in order to perform any operation required in relation with the incident.
Incident Takeover by the Service Provider
Once an incident is reported, the Service Provider shall identify the cause and the nature of the Incident. If the Service Provider concludes that the incident is not related to the Client’s Content or Modifications to the Client’s Server, but rather linked to its Server, the costs related directly to the resolution process shall be entirely assumed by the Service Provider.
The Client shall not abuse of the Technical Support Service.
Resolution of Incident
If the Service Provider is the sole Party able to resolve the incident, the Service Provider shall inform the Client, once the incident resolved, on the cause of the incident and indicate the solution needed to resolve it.
Exclusions
The Service Provider only considers incidents submitted via the tools made available to the Client.
If the Technical Support Service notices that the Client is in breach of the Hosting Rules or in violation with the provisions of this Agreement and any Other Policies he is subject to, the Service Provider reserves the right to reject any intervention in this regard.
The Service Provider can refuse to respond to the request of the Client if the latter is making abusive use of the Technical Support Service, especially by submitting requests too frequently, to the extent of disrupting the operations of the Technical Support Service.
The Service Provider only has an obligation of means.
Specific Provisions
Representatives of the Parties
Each of the Parties acknowledges that the person designated by it in the Specifications (or any other person replacing the designated person, pursuant to a notice to that effect given to the other Party) shall represent it and shall have full authority to take all steps, make all decisions and give all consents required with respect to the performance of this Agreement.
Electronic Communications
The Parties representatives may communicate between themselves by electronic means, in which case, the following presumptions shall apply:
- the presence of an identification code in an electronic document shall be sufficient to identify the sender and to establish the authenticity of the said document;
- an electronic document containing an identification code shall constitute a written instrument signed by the sender; and
- an electronic document or any printed output of such document, when kept in accordance with usual business practices, shall be considered to be an original.
Obligations of the Client
The Client undertakes as follows in favor of the Service Provider:
a) The Client shall cooperate fully with the Service Provider and provide the Service Provider with all information required in order to ensure that the Services are provided in a proper and complete manner;
b) The Client shall take all appropriate measures to prevent the unauthorized disclosure of any username and password enabling access to the Server via SFTP, SSH or any other means set forth in the Specifications;
c) The Client shall promptly report to the Service Provider any problem of which he may be aware of concerning the Server operation;
d) The Client shall be solely responsible for the Content of the Server, and any damage resulting from the use or display thereof;
e) The Client shall take up the defence of the Service Provider if the latter is impleaded in, or made a party to, any legal proceedings instituted by a third party and alleging a fault on the part of the Service Provider resulting from the presence, use or display of the Server or the Content hosted therein, and the Client shall indemnify the Service Provider and hold it harmless from and against the principal amount and interest of any monetary order which is issued, as well as from and against all judicial and extrajudicial costs incurred by the Service Provider as a result thereof;
f) The Client shall pay the price of the Service Provider’s Services and the price of all additional Services required by the Client after the signing of this Agreement, and it shall reimburse to the Service Provider all expenses incurred, the whole in accordance with the terms and conditions of payment set forth in the Specifications; and
g) The Client shall give notice forthwith to the Service Provider if the Client’s representative, as indicated in the Specifications, is replaced during the performance of this Agreement.
Obligations of the Service Provider
The Service Provider undertakes as follows in favor of the Client:
a) The Services shall be provided in a professional manner, in accordance with generally accepted industry practices, and based upon the Specifications;
b) Server operating tests shall include a check of the proper operation of Software Components;
c) The Server shall contain all software programs required in the Specifications;
d) The Server shall be running and accessible from the Internet on a continuous basis as detailed in the Specifications, excepting such time periods as are needed for planned Server maintenance and network downtime not attributable to the Service Provider;
e) The Service Provider shall promptly resolve any problem respecting the Server operation after acknowledgment of the problem or after being notified by the Client, whichever comes first;
f) The Server shall be protected, in an appropriate and permanent manner, from any hacking, physical or virtual, and shall provide all security warranties generally accepted by the industry;
g) Without restricting the generality of the foregoing, the Service Provider shall deny any access by an unauthorized third party to the Server and its content; and
h) The Service Provider shall ensure that its employees, suppliers, associates, and subcontractors, if any, fully comply with the provisions of this Agreement, in particular those relating to intellectual property and confidentiality.
Insurance Policy
The Client shall be solely responsible for subscribing, paying and keeping in force any insurance covering damage done to or caused by the Content of the Client on the Server. The Client shall not hold the Service Provider responsible or liable for any loss, damage or embarrassment which the Client may incur or suffer directly or indirectly, resulting from the use or presence of the Content of the Client on the Server.
Under no circumstances will the Service Provider be obligated to provide insurance coverage for the Server itself or the Content of the Client hosted on the Server.
Intellectual Property
Definitions
For purposes of this Agreement:
Intellectual Property Right, Title, and Interest
Shall include, without limitation, any intellectual property right, title, and interest, including any derivative right, moral right and personal right, in and to the following:
a) any work, invention, trademark, industrial design, integrated circuit topography, confidential information or trade secret, as the case may be;
b) any certificate which registers, grants or acknowledges ownership or interests in any of the intellectual rights in question; and
c) any request for the registration, granting or acknowledgment of ownership or interests in any of the intellectual property rights in question.
Background Technology
Shall include, without limitation, all programming tools, development tools, migration tools, conversion tools, data retrieval tools, Internet tools, multimedia tools, network tools, databases, operating systems, patches, processes, programs, subprograms, software, software portions, compilers, report generators, executable libraries, data, codes, documentation, notes, expertise and technological know-how.
Respect of Third Party Intellectual Property by the Service Provider
The Content, including the software related to the Server operation, shall be entirely original and shall not infringe any third party Intellectual Property Right, Title or Interest. If all or part of the Content has been designed, in whole or in part, by a third party, or if a third party has an Intellectual Property Right, Title or Interest in and to such Content, the Service Provider shall obtain the appropriate rights allowing it, among others, to use the said Content (or part thereof).
Respect of Third Party Intellectual Property By the Client
The Content uploaded by the Client on the Server shall be entirely original and shall not infringe any third party Intellectual Property Right, Title or Interest. If the Content has been designed, in whole or in part, by a third party, or if a third party has an Intellectual Property Right, Title or Interest in and to such elements, the Client shall obtain the appropriate rights allowing it, among others, to use the said Content (or part thereof). If the Client fails to abide by all or part of any of the obligations set forth hereinabove, it shall do the following:
a) it shall indemnify the Service Provider from and against any damages suffered by the latter;
b) it shall take up the defence of the Service Provider if the latter is impleaded in, or made a party to, any legal proceedings instituted by a third party and alleging the actual or threatened infringement or unlawful use of any Intellectual Property Right, Title or Interest, and the Client shall indemnify the Service Provider and hold it harmless from and against the principal amount and interest of any monetary order which is issued, as well as from and against all judicial and extrajudicial costs incurred by the Service Provider as a result thereof; and
c) it shall remove the Content used unlawfully or replace it with completely original Content or with Content with respect whereto the Client has an Intellectual Property Right, Title or Interest, the whole forthwith and at the Client’s expense. If the Client fails to perform within the time limit set by formal notice, the Client irrevocably mandates the Service Provider to remove the elements illegally used, at the expense of the Client.
Domain Name
Every Intellectual Property Right, Title, and Interest in and to the domain name(s) shall belong to the Client, subject to any third party Intellectual Property Right, Title or Interest. The Service Provider’s use of the said domain name(s) shall be limited to the execution of its Services.
Content hosted on the Server
Every Intellectual Property Right, Title, and Interest in the Content hosted on the Server shall belong to the Client, subject to any third party Intellectual Property Right, Title or Interest. The Service Provider’s use of the said Content shall be limited to the execution of its Services.
Background Technology Developed by the Service Provider
All the Intellectual Property Rights, Titles and Interests in and to the Background Technology developed by the Service Provider before or during performance of this Agreement shall belong to, or become the exclusive property of, the Service Provider, as the case may be, subject to any third party Intellectual Property Right, Title or Interest.
Background Technology Developed by a Third party
If, within the scope of performance of this Agreement, the Service Provider uses Background Technology developed by a third party and resulting in the insertion of software components, the Service Provider shall obtain from such third party all Intellectual Property Rights, Titles and Interests allowing the Service Provider to insert such software components and to assign the right to use and modify same to the Client, whether by means of a licence or otherwise.
Confidentiality and Non-Disclosure Undertaking
The Client acknowledges and agrees that the Service Provider may offer Services to third parties who may compete with the Client. Consequently, the Client shall provide the Service Provider only with the Information Elements intended for the execution of its Services. Therefore, the Client shall not provide the Service Provider with Information Elements which the Client considers to be confidential, secret or private. Moreover, the Client hereby releases the Service Provider from any obligation to maintain the secrecy or confidentiality of any Information Element provided by the Client to the Service Provider.
Useful Information
The Client acknowledges that, before the signing of this Agreement, the Service Provider has provided it with all useful information regarding the Services the Service Provider has undertaken to provide.
Performance Methods
Except as regards compliance with the Specifications, the Service Provider shall be free to choose the means of performing this Agreement, and there shall be no relationship of subordination between the Service Provider and the Client in respect of such performance.
Relationship Between the Parties
Given that the Parties are independent entities, this Agreement shall be binding upon them only for the purposes set forth herein. Consequently, the provisions of this Agreement shall not, under any circumstances, be interpreted as creating any association or partnership between the Parties or as conferring any mandate from one Party to the other. Moreover, neither Party may bind the other in any manner whatsoever or in favor of anyone whomsoever, except in accordance with the provisions of this Agreement.
Subcontracting
Unless there is a provision to the contrary in this Agreement, the Service Provider may employ any third party in order to perform this Agreement. Nonetheless, its performance shall remain under the Service Provider’s supervision and responsibility.
Additional Services
If the Client requires additional Services and if the Service Provider agrees to provide such services, all additional Services shall be subject to the provisions of this Agreement, in particular those relating to intellectual property and confidentiality, with the appropriate modifications.
The nature and price of the additional Services which are currently available are set forth on the Website of the Service Provider.
Representations and Warranties of the Service Provider
The Service Provider represents and warrants as follows in favor of the Client:
a) it has the capacity to bind itself pursuant to this Agreement, which capacity is not limited in any manner whatsoever by any undertaking whatsoever in favor of a third party;
b) it has the expertise and experience required in order to perform and fulfill the obligations imposed upon it pursuant to this Agreement;
c) it shall provide the services in an efficient and professional manner, in accordance with generally accepted industry practices and use the most up to date Background Technology and development tools;
d) it shall comply with each and every one of the Specifications relating to the Services to be rendered by it;
e) it shall respect all Intellectual Property Rights, Titles, and Interests belonging to third parties in any development tool used by it and in any software component designed by it with the help of such tool;
f) it shall not use any third party confidential information or trade secret unless it has received the third party’s authorization; and
g) the Server shall operate properly and in accordance with the Specifications, subject to any minor corrections which may be required from time to time.
Technical Support Provided by the Service Provider
During the period set forth in the Specifications, the Service Provider shall provide technical support with respect to the Server, at no cost to the Client. In particular, but without limiting the generality of the foregoing, the Service Provider shall, within a reasonable deadline, correct any problem or defect affecting the following:
- the Server, or its proper operation;
- the proper operation of the operating system, other software, or hardware or software peripherals, when such problem or defect is due to the Server.
Limitation of Warranty
Unless otherwise provided for in this Agreement, the Service Provider shall not provide the Client with any express or implied warranty with respect to the following:
- the Server, its Content, its operation, its hardware and software components, and its access through the Internet;
- the consequences which result or may result from the use of the Server or the hosted Content, whether such consequences are actual or threatened, financial or not, or positive or not.
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED WITH RESPECT TO THE OBJECT Of THIS AGREEMENT, AND THEY CONSTITUTE A LIMITED WARRANTY. THE CLIENT EXPRESSLY WAIVES ALL OTHER EXPRESS OR LEGAL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL LEGAL WARRANTIES REGARDING LATENT DEFECTS, EVICTION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CERTAIN JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, AND IT IS POSSIBLE THAT ONE OR MORE OF THE AFOREMENTIONED EXCLUSIONS OR LIMITATIONS WILL NOT APPLY. IT IS ALSO POSSIBLE THAT THE CLIENT MAY HAVE OTHER WARRANTY RIGHTS, WHICH RIGHTS MAY VARY FROM ONE PLACE TO ANOTHER. UNDER NO CIRCUMSTANCES WILL THE VALUE OF THE WARRANTY EXCEED THE VALUE OF THE SERVICES RENDERED TO THE CLIENT AND PAID FOR BY IT IN THE IMMEDIATELY PRECEDING THREE (3) MONTHS FROM THE DATE THE CLAIM AROSE. THE CLIENT EXPRESSLY WAIVES THE RIGHT TO MAKE ANY WARRANTY CLAIM EXCEEDING THE SAID LIMIT.
Limitation of Liability
Except in the event of gross negligence on the part of the Service Provider, the Service Provider shall not be liable towards the Client for any fault or any direct or indirect damage resulting therefrom, and the Client shall indemnify the Service Provider and hold it harmless from and against all claims, including all claims under a warranty, in any of the following cases:
- appropriation, modification, loss or destruction, illegal or unauthorized, in whole or in part, of the Content hosted on the Server;
- loss or destruction of traffic statistics;
- the loss of business opportunities or income relating to the operation or failure to operate or to the use or failure to use the Server or to the information found or that could be found therein;
- unlawful or unauthorized third party hacking into the Server;
- the introduction of a computer virus into the Server;
- temporary bandwidth congestion; and
- interruption of Internet connection beyond the Service Provider’s control.
UNLESS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE SERVICE PROVIDER (INCLUDING, IF APPLICABLE, ITS SUBSIDIARIES AND PARENT COMPANY, AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EXECUTIVES, EMPLOYEES, ASSOCIATES AND PROGRAMMERS) BE HELD LIABLE TOWARDS THE CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS OR OTHER ECONOMIC LOSS (RESULTING FROM A CONTRACTUAL OR EXTRA-CONTRACTUAL FAULT OR FROM NEGLIGENCE), EVEN IF THE SERVICE PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, AND IT IS POSSIBLE THAT ONE OR MORE OF THE AFOREMENTIONED EXCLUSIONS OR LIMITATIONS WILL NOT APPLY. IT IS ALSO POSSIBLE THAT THE CLIENT MAY HAVE OTHER RIGHTS, WHICH RIGHTS MAY VARY FROM ONE PLACE TO ANOTHER. UNDER NO CIRCUMSTANCES WILL THE SERVICE PROVIDER’S TOTAL LIABILITY TOWARDS THE CLIENT EXCEED THE VALUE OF THE SERVICES RENDERED TO THE CLIENT AND PAID FOR BY IT. THE CLIENT EXPRESSLY RELEASES THE SERVICE PROVIDER FROM ANY LIABILITY EXCEEDING THE SAID LIMIT.
Termination of the Agreement by the Client
The Client may at any time cancel this Agreement upon notice being given to the Service Provider and received at least Twenty Eight (28) days prior to the effective cancellation date. Nevertheless, the Client shall remain liable for the payment of the Services and other Services provided by the Service Provider until the effective cancellation date, without any reduction or remittance.
Termination of the Agreement by the Service Provider
If, after the Service Provider has sent a demand to the Client, the Client does not abide by any one of its obligations pursuant to this Agreement, the Service Provider may terminate this Agreement, put the Server offline and remove the Content of the Client. In such a case, the Service Provider shall be required only to reimburse to the Client the amount of the advances (or any balance thereof) or excess amounts received, the whole without prejudice to any of the Service Provider’s rights and recourses against the Client.
No Intermediary
The Parties declare that they have not retained the Services of any intermediary (e.g., agent, broker or other) with respect to the negotiation, preparation or entering into of this Agreement.
General Provisions
Unless otherwise stated in this Agreement, the following provisions shall apply.
“Force Majeure”
Neither Party shall be considered to be in default pursuant to this Agreement if the fulfillment of all or part of its obligations is delayed or prevented due to “force majeure”. “Force majeure” is an external unforeseeable and irresistible event, making it absolutely impossible to fulfill an obligation.
Severability
If all or part of any section, paragraph or provision of this Agreement is held invalid or unenforceable, it shall not have any effect whatsoever on any other section, paragraph or provision of this Agreement, nor on the remainder of the said section, paragraph or provision, unless otherwise expressly provided for in this Agreement.
Notices
Any notice intended for either Party shall be deemed to be validly given if it is sent by email or via the contact form on the Website, to such Party’s address as set forth in this Agreement, or to any other address which the Party in question may have indicated to the other Party. The notice shall be deemed to be received on the same day of its sending, or if that day is a non-juridical day, the next juridical day following its sending.
Headings
The headings in this Agreement have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof.
Schedules
The Schedules to this Agreement, the Specifications and any Other Policies available on the Website shall be deemed to form an integral part hereof.
No Waiver
Under no circumstances shall the failure, negligence or tardiness of a Party as regards the exercise of a right or a recourse provided for in this Agreement be considered to be a waiver of such right or recourse.
Cumulative Rights
All rights set forth in this Agreement shall be cumulative and not alternative. The waiver of a right shall not be interpreted as the waiver of any other right.
Entire Agreement
This Agreement constitutes the entire understanding between the Parties. Declarations, representations, promises or conditions other than those set forth in this Agreement shall not be construed in any way so as to contradict, modify or affect the provisions of this Agreement.
Amendments
This Agreement shall not be amended or modified except by another written document, rider or Agreement duly signed by all the Parties.
Number and Gender
Where appropriate, the singular number set forth in this Agreement shall be interpreted as the plural number, and the gender shall be interpreted as masculine, feminine or neuter, as the context dictates.
No Right to Transfer
Neither of the Parties may, in any manner whatsoever, assign, transfer or convey its rights in this Agreement to any third party, without the prior written consent of the other Party.
Calculating Time Periods
In calculating any time periods under this Agreement:
a) the first day of the period shall not be taken into account, but the last one shall;
b) the non-juridical days, i.e., Saturdays, Sundays and public holidays, shall be taken into account; and
c) whenever the last day is a non-juridical day, the period shall be extended to the next juridical day.
Governing Law
This Agreement shall be construed and enforced in accordance with the laws in force in Quebec, Canada.
Election of Domicile
The Parties agree to elect domicile in the judicial district of Québec, Quebec, Canada, for the hearing of any claim arising with respect to the interpretation, application, performance, term, validity or effects of this Agreement.
Counterparts
Each counterpart of this Agreement and any Other Policies shall be considered to be original, it being understood, however, that all of these counterparts shall constitute one and the same Agreement.
Successors
This Agreement shall bind the Parties hereto as well as their respective successors, heirs, and assigns.
Joint and Several Liability
Whenever one of the Parties is constituted of two or more persons, these persons shall be jointly and severally liable towards the other Party.
Elapsed Time
Whenever one of the Parties fails to fulfill an obligation under this Agreement within a stipulated deadline, the mere lapse of time shall constitute formal notice of default to the said Party.
Effective Date
This Agreement shall become effective at the moment the Service Provider sends an email to the Client confirming receipt of the first payment from the Client.
Term
The Duration of this Agreement is the one stated in the Specifications.
Renewal
At its expiry, this Agreement shall be automatically renewed for the same terms and conditions as indicated in the Specifications, except for the price which shall be established in accordance with the rates of the Service Provider at the time of any such renewal.
Termination
This Agreement shall terminate in any of the following circumstances:
a) upon expiry of the Duration indicated in the Specifications if this Agreement is not renewed, or upon expiry of any renewal period;
b) upon the written consent of the Parties;
c) in case of termination, as provided for in this Agreement;
d) if a Party fails to fulfill any of its obligations hereunder and does not remedy the default within a period of Seven (7) days following receipt by the said defaulting Party of a formal notice asking it to remedy the default or within such shorter delay as is provided for in this Agreement; or
e) if either Party becomes bankrupt or insolvent, or ceases to carry on business.
Nonetheless, termination of this Agreement shall not affect the rights or obligations of the Parties with respect to confidentiality, intellectual property, limitation of warranty or limitation of liability, which rights and obligations shall survive the termination of this Agreement.
Acknowledgment by the Parties
THE PARTIES HEREBY ACKNOWLEDGE AS FOLLOWS:
A) THIS AGREEMENT TRULY AND COMPLETELY DEFINES THE UNDERSTANDING REACHED BETWEEN THEM;
B) EACH AND EVERY ONE OF THE PROVISIONS OF THIS AGREEMENT IS LEGIBLE;
C) THEY DID NOT ENCOUNTER ANY DIFFICULTIES IN UNDERSTANDING THE PROVISIONS OF THIS AGREEMENT;
D) BEFORE CONCLUDING THIS AGREEMENT, EACH PARTY HAD THE OPPORTUNITY TO CONSULT A LEGAL ADVISER; AND
E) EACH PARTY REVIEWED THE CURRENT AGREEMENT BEFORE CONCLUDING IT WITH THE OTHER PARTY.