Terms of Service
CLOUD IT CANADA INC. IaaS Terms of Service
1.1 These Terms describe the terms and conditions applicable to Cloud IT Canada Inc.’s (“CloudIT”) provision and Client’s use of the Services (as defined below).
2.1 Capitalized terms used in these Terms and not otherwise defined have the following meanings:
Agreement means the agreement between Client and CloudIT, comprising these Terms, all applicable Orders and Third Party Software Terms, the AUP, the Usage Pricing Terms, and the Public IaaS Service Description and Service Level Terms.
Administrator means a single employee, agent or independent contractor of Client, indicated on the applicable Order, who is authorized by CloudIT to provision, manage and administer certain aspects of the Services.
API means the application programming interface made available by CloudIT in connection with the Services, including the technical and administrative specifications, standards, requirements, procedures and communication protocols promulgated by CloudIT in connection with such application programming interface.
AUP means the CloudIT Acceptable Use Policy that describes certain requirements for use of the Services, located at www.clouditcanada.com/aup, as updated by CloudIT from time to time.
Authorized User means the Administrator or a Sub-Administrator, as applicable.
IaaS, or Infrastructure as a Service, means the cloud computing services (which may include access to and use of hosted Software and Documentation) provided by CloudIT to Client as set forth in an Order and more fully described in the Public IaaS Service Description.
Client means the entity ordering Services from CloudIT, as identified in the applicable Order(s).
Client Application means a software application that Client installs and hosts on the Services for use by Client’s Authorized Users and any third parties authorized by Client, including Client’s customers and other end-users.
Client Content means the Client Applications and any other content, materials or data that Client uses, installs, uploads or hosts on the Services.
Credentials mean a unique log in and password that enables Client to access and use the Services.
CloudIT means Cloud IT Canada Inc., and shall not be interpreted to include any other CloudIT entity unless specifically stated otherwise.
CloudIT New User Guide means the materials, including Administrator’s Credentials and access instructions, that CloudIT provides to Client to allow Client to access the Services.
Documentation means the developer guides, getting started guides, user guides, quick reference guides,and other documentation for the Services that CloudIT provides to Client in the CloudIT New User Guideor makes available via one or more web-based user interfaces, as updated by CloudIT from time to time.
Emergency Incident means an Incident that renders the Services inoperative or causes a complete failure of the Services and impacts a large number of users, for which an effective workaround is not available.
Excusing Event means:
(a) Client’s act or omission or an act or omission of a third party for which Client is responsible, including failure to supply accurate, complete, and timely information when requested;
(b) a Force Majeure Event (as defined in Section 16.10);
(c) routine or emergency maintenance of the Services (as described in Section 7.2), or any other scheduled downtime agreed to by the parties;
(d) defects in Third Party Software or CloudIT’s loss of license rights or restrictions imposed by third party licensors with respect to Third Party Software;
(e) unavailability of necessary technology or other resources on commercially reasonable terms;
(f) any operating system, database, application or other code or materials not provided by CloudIT, including configuration issues in connection with the foregoing;
(g) any act or omission of a third party or that is not caused by CloudIT (for example, hacking, denial of service attacks and the introduction of viruses), provided that CloudIT uses reasonable efforts to maintain current versions of Software patches;
(h) compliance with any applicable law or requests of governmental entities, in each case that adversely affects CloudIT’s ability to provide the Services.
Fees mean the fees payable by Client to CloudIT for the Services, as described in Section 12 and the applicable Order.
Geography means a geographic region in which CloudIT maintains one or more Locations. The Geographies applicable to IaaS are listed in the Public IaaS Service Description.
Incident means a failure of the Services to conform in a material respect with the applicable Service Description(s).
Incident Correction means a bug fix, patch, or other modification or addition that brings the Services into material conformity with the applicable Service Description.
Location means a physical location in which CloudIT maintains an MCP necessary to provide the Services locally. Through the Management Portal, Client may view the Locations available in each Geography that is accessible to Client.
Management Portal means a CloudIT portal accessible by Authorized Users that enables Client to manage and administer certain functions of the Services on its own, the URL for which is provided to Client in the CloudIT New User Guide.
MCP means a managed cloud platform used by CloudIT to provide IaaS to Client, consisting of computing hardware and software resources and including CloudIT’s automation and orchestration tools necessary for the provision of the Services.
Minimum Commitment Plan means a Plan that includes a Minimum Commitment Term.
Minimum Commitment Term means a number of consecutive months for which Client commits to pay a set minimum Fee to access and use the Services, as indicated in the applicable Order.
Minimum Usage Commitment means the minimum amount of Usage for which Client commits to pay each month.
Order means each order for the Services submitted by Client and accepted by CloudIT.
Other Incident means any Incident other than an Emergency Incident.
Plan means a plan for CloudIT’s provision of, and Client’s payment for, Services, as described in the applicable Order.
Public IaaS Service Description means the description of the features, functions, limitations and restrictions with respect to the IaaS, located at www.clouditcanada.com as updated by CloudIT from time to time.
Public Software means software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative, or any software or similar subject matter that is distributed under similar licensing or distribution terms.
Services means IaaS provided by CloudIT to Client as set forth in an Order and more fully described in the applicable Service Description(s).
Service Description means, as applicable, the Public IaaS Service Description.
Service Level Credit means a credit that Client may receive if CloudIT fails to meet a Service Level, calculated as set forth in the Service Level Terms.
Service Level Failure means, for a particular Service Level during a particular calendar month, a failure by CloudIT to meet such Service Level during such calendar month (excluding any failure comprising or caused by an Excusing Event).
Service Levels mean the service levels applicable to the Services, located at the CLOUD SERVICE LEVEL AGREEMENT as updated by CloudIT from time to time (the “SLA”).
Service Request means a request by Client to CloudIT for Technical Support.
Software means the software (including the API) that CloudIT makes available for Client’s use as part of the Services, including both CloudIT’s software and Third Party Software.
Sub-Administrator means an employee, agent, independent contractor or automated application account of Client whom the Administrator authorizes to access and use the Services.
Support means Incident Correction and Technical Support.
Technical Support means answering questions and providing information regarding the Services or their functionality, and excludes Incident Correction.
Terms means the terms and conditions included in this document.
Usage means Client’s monthly usage of the Services, as measured in units of the currency set forth in the applicable Order.
3.1 Client may request Services by submitting an Order to CloudIT. Client must use CloudIT’s standard order form to place Orders and no Order will be effective until CloudIT accepts the Order by issuing to Client, via email, a CloudIT New User Guide. The CloudIT New User Guide will include Credentials to enable the designated Administrator to access the Services. Client will be deemed to have access to the Services on the date CloudIT issues the CloudIT New User Guide (the “Effective Date”). CloudIT will keep a record of the Effective Date for each Order. Each Order will set forth the particular Plan ordered and the applicable Fees. Each Order will incorporate these Terms and the parties will be bound by these Terms with respect to each Order.
Selecting Locations and Geographies
3.2 From the Effective Date of an Order, Client will access all Services through, and store all Client Content in, the Location and Geography indicated by Client in the Order. If Client wishes to access some or all Services or store some or all Client Content
(a) in a different Location that is available in Client’s default Geography as indicated in such Order, Client may request such change(s) via the Management Portal; or
(b) in one or more Locations in a different Geography than the one indicated by Client in such Order, Client must request access to such different Geography in writing to CloudIT, approval of which request will be in CloudIT’s sole discretion, and if CloudIT approves such request, CloudIT will notify Client, and the Location(s) available in such new Geography will thereafter be accessible to Client via the Management Portal.
Client acknowledges that the addition of any Locations may affect the calculation of Client’s Usage, Fees and Service Level Credits.
Grant of License
4.1 Subject to Client’s payment of all Fees, and in accordance with the terms and conditions of this Agreement, CloudIT hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable right and license during the term of each applicable Order to have Client’s Authorized Users access and use the Services as made available by CloudIT for the purposes described in the applicable Service Description(s). This license includes the right to use the Documentation andAPIsin connection with Client’s authorized use of the Services.
4.2 Client will not (and will ensure that its Authorized Users do not):
(a) except to the extent expressly permitted under this Agreement, reproduce, download, frame, mirror, display, or create derivative works of or otherwise modify any Services;
(b) decompile, disassemble, or otherwise reverse engineer any Services;
(c) access or use any Services in order to build any competing product or service;
(d) except to the extent expressly permitted under this Agreement, license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make available any Services to any third party, or use any Services on a service bureau basis or otherwise to provide services to any third party;
(e) interfere with or impede the functionality or proper working of any Services or the servers or networks used to make the Services available, or violate any requirements, procedures, policies or regulations of such networks;
(f) access or use any Services in a manner that violates the AUP or any law or regulation, including anti-spam laws and regulations;
(g) remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within any Services;
(h) otherwise use or access any Services other than as expressly permitted by the Agreement (including the AUP).
4.3 Authorized Users may access the Services either through a web-based user interface or through Client’s own Client Application using the API. CloudIT may modify and republish the API from time to time and Client will need to ensure that its Client Applications and systems are compatible with the then-current API. Notwithstanding the foregoing, if CloudIT removes or changes a material feature or function of the API, CloudIT will use commercially reasonable efforts to maintain backwards compatibility with the previous version of the API for twelve (12) months from the date of the change.
No Other Rights
4.4 As between the parties, CloudIT is and will be the sole and exclusive owner of all right, title and interest in and to the Services, including all intellectual property rights related thereto. Subject only to the specific licenses granted herein, CloudIT expressly reserves all rights with respect to the Services. Client will not acquire or claim any right, title or interest in or to the Services or the methodologies used in performance of the Services, whether by implication, operation of law or otherwise, except the limited right to access and use the Services during the term as expressly set forth in the Agreement. CloudIT reserves all copyrights, industrial designs, trademarks, and patents that it may have in the API and any and all graphical user interfaces made available to Client.
5. Client Applications
5.1 Client may install and host Client Applications, such as Microsoft Exchange, on the Services so long as Client complies with the relevant requirements and restrictions set forth in the Agreement. Client is solely responsible for the operation, support and maintenance of Client Applications and for ensuring that Client has the necessary rights to install and host such Client Applications on the Services. Client is responsible for the acts and omissions of any users of its Client Applications and will ensure that such users comply with the Agreement, including the AUP. As between the parties, Client is and will be the sole and exclusive owner of all right, title and interest in and to the Client Applications and other Client Content, including all intellectual property rights related thereto, and CloudIT will have (and Client hereby grants to CloudIT) only the limited right to use and host the Client Applications and other Client Content in connection with providing the Services. Client must ensure that Third Party updates are reflected in the Master Image.
6. Authorized User Accounts
6.1 Client will designate one Administrator in the applicable Order who will be authorized by Client to access and use the Services and to request new Service offerings as they become available. Client may also use an automated process to access the Services and to order new Service offerings through the API. Any request for use of additional Service offerings, or for additional access to currently-used Service offerings (including in additional or different Locations), made using an Administrator’s Credentials or such automated process will be deemed to have been authorized by Client and Client will be responsible for the associated Fees.
6.2 The Administrator may designate one or more Sub-Administrators to perform any (or all) acts the Administrator is permitted to perform, and will provide Credentials to each Sub-Administrator it appoints. Appointment of Sub-Administrators may constitute additional Usage and be subject to additional Fees, as described in the Usage Pricing Terms. The Administrator’s and each Sub-Administrator’s Credentials may only be used by the Administrator or that Sub-Administrator, as applicable; multiple persons may not share a single set of Credentials. The Administrator and each Sub-Administrator must keep his or her Credentials secure.
6.3 Client is responsible for the acts and omissions of Authorized Users and will ensure that Authorized Users comply with the Agreement, including the AUP. Client will not permit persons other than Authorized Users to access the Services and will maintain the confidentiality of all Credentials. Client will notify CloudIT promptly in writing if Client becomes aware of:
(a) any loss, theft, or unauthorized use of any Credentials; or
(b) any breach of this Agreement by one or more Authorized Users.
Client will be responsible for the acts and omissions of any person using Credentials.
7. Service Levels; Maintenance
7.1 The Service Levels for IaaS are described in the Service Level Terms and any applicable Service Level Agreement. Client will be entitled to Service Level Credits solely as set forth in the Service Level Terms and in Section 12.4 below. Service Level Credits are Client’s sole and exclusive remedy and CloudIT’s sole and exclusive liability with respect to CloudIT’s failure to meet the Service Levels and such failure will not be deemed to be a breach of this Agreement by CloudIT.
7.2 CloudIT performs scheduled maintenance on the Services (including maintenance related to the Software and other equipment and materials used for providing the Services) from time to time. In addition, CloudIT may occasionally need to perform emergency or unscheduled maintenance. These maintenance activities may cause interruptions to the Services. CloudIT will use reasonable efforts to inform Client in advance of any such Service interruptions and their anticipated duration.
8.1 Cloud IT is only responsible for maintaining the Services it provides. The Client is responsible for the maintenance of its software and activities as they pertain to its usage of the Services. Client may request that CloudIT perform technical support services to Client’s own or third-party software. Such support will be billed to Client as an additional fee calculated at $150 per hour of support provided.
9. Client Content
9.1 CloudIT uses reasonable security standards to protect the physical security of its data centres used to maintain Client Content. The Services allow customization by Client, including options to install third-party software, implement security controls, establish and enforce user access controls, and select the Location(s) in which Client Content will be stored. Client acknowledges that it is responsible for using the Services properly and for taking its own steps to maintain appropriate security, protection, and backup of its Client Content, which may include the use of encryption technology to protect Client Content from unauthorized access, and routine archiving of Client Content. Client is responsible for selecting the Location(s) in which Client Content will be hosted. Client will comply with applicable laws with respect to its use of the Services. CloudIT is not responsible for and assumes no liability related to the foregoing Client obligations.
9.2 IaaS is designed to allow authorized access to Client Content only by Authorized Users granted access by Client. Client acknowledges that IaaS does not allow CloudIT to access Client Content. Without limiting the foregoing, Client understands and agrees that, if Client requests support from CloudIT that requires access to Client Content, Client may be required to issue temporary Credentials to CloudIT to permit such access to Client Content. To the extent Client grants CloudIT access to Client Content in connection with IaaS, CloudIT agrees to:
(a) access and use the Client Content solely for the purpose of providing Services to Client;
(b) maintain physical, technical, and administrative safeguards to protect the Client Content against unauthorized access, use, or disclosure while it is accessible by CloudIT; and
(c) not disclose the Client Content to any third party, except:
(i) to its employees, consultants or contractors for purposes of providing Services to Client, provided that such recipients are bound by confidentiality provisions (including provisions relating to non-use and non-disclosure) no less restrictive than those set forth in this Agreement; and
(ii) to the extent required by a judicial order or other legal obligation, provided that, to the fullest extent permitted by law, CloudIT will promptly notify the Client of such a required disclosure to allow intervention by the Client (and will cooperate with the Client) to contest or minimize the scope of the disclosure.
9.3 Client acknowledges and agrees that CloudIT will not be required to create, maintain or implement backups of any Client Content and that Client is solely responsible for such backup services.
10. Representations and Warranties
10.1 Each party represents and warrants to the other that:
(a) it has the full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized;
(b) it will comply with all applicable laws, rules, regulations and ordinances in the performance of this Agreement; and
(c) its performance hereunder does not breach any other agreement to which it is bound.
10.2 CloudIT represents and warrants to Client that it will perform the Services materially in accordance with the applicable Service Description(s).
10.3 EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH ABOVE, THE SERVICES AND ANY OTHER INFORMATION, TECHNOLOGY, CONTENT AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CLOUDIT DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANYWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. WITHOUT LIMITATION OF THE FOREGOING, CLOUDIT DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ADVICE, RESULTS OR INFORMATION OBTAINED BY CLIENT FROM CLOUDIT OR THROUGH ANY SERVICES, ANY DOCUMENTATION, OR THE COMMUNITY FORUM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
11.1 Client will defend CloudIT from any third party claim, suit, action or proceeding, and will pay all related damages, costs, expenses, judgments, settlement amounts, and other liabilities (including reasonable attorney’s fees and costs) finally awarded against CloudIT by a court or tribunal of competent jurisdiction, to the extent arising from:
(a) any violation (or alleged violation) of applicable law by Client or any Client Content or Client Community Content;
(b) any allegation that any Client Content infringes, misappropriates or violates any copyright, patent, trade secret, trademark or other intellectual property rights of a third party;
(c) any disputes with third party licensors or providers of any Client Content; or
(d) any acts or omissions of Authorized Users or of Client’s customers or their respective end-users, including any breach of the license restrictions set forth in Section 4.2.
11.2 If the Services are the subject of an infringement claim (or CloudIT reasonably believes that such a claim is likely), then CloudIT may at its option and expense:
(a) procure for Client the right to continue to use the Services;
(b) modify the Services to be non-infringing or provide non-infringing substitutes with substantially similar functionality; or
(c) if CloudIT cannot accomplish (a) or (b) using commercially reasonable efforts, terminate the Services and refund to Client the unused portion of any Fees paid in advance for the affected Services.
12. Fees and Payments
12.1 Client will pay the Fees to CloudIT for the Services in accordance with this Section 12. For Usage-Based Plans, Fees are calculated based on the Usage Pricing Terms in effect on the date of each applicable invoice. For Minimum Commitment Plans, Fees during the Minimum Commitment Term are calculated as set forth in the applicable Order, and following expiration of the Minimum Commitment Term, Fees will be calculated based on the Usage Pricing Terms in effect on the date of each applicable invoice unless otherwise agreed by CloudIT and Client.
12.2 CloudIT will publish updated Usage Pricing Terms in advance of such updated Usage Pricing Terms going into effect, and such updated Usage Pricing Terms will become effective the last day of the calendar month immediately following the month in which they are published.
Types of Fees
12.3 The following types of Fees apply to the Services:
(a) Set-up Fee: A one-time Fee for the initial activation of the Services, as described in the applicable Order.
(b) Usage Fees: The Fees payable by Client each month based on Client’s Usage. Client will pay the Minimum Usage Commitment in advance (“Minimum Usage Fee”) and will pay Fees for any Usage over the Minimum Usage Commitment in arrears (the “Overage Fee”).
(c) Early Termination Fees: In a Minimum Commitment Plan, the Fees charged to Client for terminating prior to expiration of the Minimum Commitment Term, as described in the applicable Order.
Service Level Credits
12.4 Service Level Credits will be applied towards Fees as described in this Section.
12.5 Service Level Credits must be requested in writing by email to [email protected] within thirty (30) days of the first event giving rise to the applicable Service Level Failure. Following the timely receipt of such a request, CloudIT will review the request and determine whether Client is eligible for the applicable Service Level Credit. If CloudIT determines that Client is eligible for such Service Level Credit, then CloudIT will apply such Service Level Credit to Client’s invoice for the calendar month following the calendar month during which Client requested the Service Level Credit. If CloudIT determines that Client is not eligible for such Service Level Credit and Client disputes such determination, then if the dispute is resolved in Client’s favour, CloudIT will apply such Service Level Credit to Client’s invoice for the calendar month following the calendar month during which such dispute is resolved. The invoice to which the Service Level Credit is applied by CloudIT is deemed the “Service Level Credit Invoice.”
12.6 Service Level Credits may only be redeemed against the applicable Service Level Credit Invoice, and will not be redeemable against any other invoices unless otherwise agreed by CloudIT in its sole discretion. Following any expiration or termination of the applicable Order, each unused Service Level Credit (i.e., each Service Level Credit that has not been applied to a Client invoice) will be treated as follows:
(a) if the Order expired in accordance with its terms, then Client will be entitled to apply such unused Service Level Credit against purchases of Services by Client during the twelve (12) months following the month during which the Service Level Credit was incurred;
(b) if Client terminated the Order for CloudIT’s breach in accordance with the Terms, then CloudIT will pay the Service Level Credit to Client; and
(c) if CloudIT terminated the Order for Client’s breach, then upon such termination, the Service Level Credit will expire and will no longer be redeemable by Client.
12.7 Any Service Level Credits not requested or not redeemed by Client as set forth herein shall automatically expire.
12.8 Except as expressly stated herein, in no event will Service Level Credits be redeemable for cash.
12.9 In order to be eligible for Service Level Credits, Client must be current on all outstanding invoices both at the time such Service Level Credits would otherwise have accrued and at the time such Service Level Credits would otherwise be payable hereunder.
12.10 Usage-Based Plans. For Usage-Based Plans, on or after the Effective Date of an Order, CloudIT will deliver an invoice for the first calendar month’s Minimum Usage Fees (adjusted pro-rata for the remainder of the then-current calendar month) and, if applicable, the Set-Up Fee. Each subsequent month, CloudIT will deliver an invoice for the Minimum Usage Fees for such month and, if applicable, Overage Fees for the immediately preceding calendar month (and prior calendar months, if such Fees have accrued but have not yet been invoiced).
12.11 Minimum Commitment Plans. For Minimum Commitment Plans, on or after the Effective Date of an Order, CloudIT will deliver an invoice for the first calendar month’s Minimum Usage Fees and if applicable, Tech Ops Service Fees, both of which will be adjusted pro-rata for the remainder of the then-current calendar month, and if applicable, the Set-Up Fee. Each subsequent month, CloudIT will deliver an invoice for:
(a) the Minimum Usage Fees for such month;
(b) if applicable, Tech Ops Service Fees for such month; and
(c) if applicable, Overage Fees for the immediately preceding calendar month (and prior calendar months, if such Fees have accrued but have not yet been invoiced).
Payment and Taxes
12.12 Any Client-specific payment terms, including currency, dates and manner of payment, interest rates on late payment, and taxes, will be described in the applicable Order.
12.13 CloudIT may charge Client additional Fees on a time and materials basis at CloudIT’s then-current rates for any of the following:
(a) re-establishment or other assistance requested by Client outside the scope of the applicable Order;
(b) provision of Support to Client if CloudIT determines that Client’s request was not related to an Incident; and
(c) re-establishment of the Services following suspension pursuant to Section 14. These Fees will be invoiced to Client in the month following the month in which they accrue.
Additional Service Offerings
12.14 If CloudIT adds a new offering to the Services not available on the Effective Date of an Order (and not included in the Usage Pricing Terms in effect as of the Effective Date), Client may order such new Service offering on a Usage-Based Plan, via the Management Portal. In such case, Client will pay Fees for such Service offering each month based on the then-current Usage Pricing Terms, regardless of whether Client was on a Usage-Based Plan or Minimum Commitment Plan for previously-existing Services.
Unforseen Fee Increase
12.15 Notwithstanding anything to the contrary in this Agreement, CloudIT may increase the Fees in an Order (including for Minimum Commitment Plans) if the costs or charges incurred by CloudIT for bandwidth or electricity materially increase. CloudIT will promptly notify Client in the event of such an increase in the Fees in an Order, and such increased Fees will go into effect on the last day of the calendar month immediately following such notice. Notwithstanding anything to the contrary in this Agreement, if Client does not agree to such a price increase for a particular Order, Client may terminate such Order at any time prior to the effective date of such increase by providing CloudIT with written notice of such termination. Failure to terminate in accordance with the foregoing will constitute acceptance of such Fee increase.
Other Payment Terms
12.16 CloudIT may apply any payment received from Client under any Order towards any amounts that Client owes to CloudIT under this Agreement or under an agreement for private IaaS services. Client may not withhold payment of any amount due to CloudIT for any reason. Client gives CloudIT permission to provide any registered credit bureau with information about the payment of amounts Client makes under this Agreement.
13. Limitation of Liability
13.1 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR CLIENT’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION) OR CLIENT’S BREACH OF SECTION 4.2, TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, OR LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
(b) IN NO EVENT WILL EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. FOR AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO CLIENT’S OBLIGATION TO PAY THE FEES OWED UNDER THE AGREEMENT.
14.1 CloudIT reserves the right to suspend or restrict Client’s or any Authorized User’s access to the Services if:
(a) Client or any Authorized User breaches this Agreement, including by violating the AUP;
(b) Client or any Authorized User fails to cooperate with any reasonable investigation by CloudIT of a suspected breach of this Agreement;
(c) CloudIT reasonably determines that suspension is necessary to prevent or mitigate damage to CloudIT’s systems or networks caused by a denial of service attack or other event;
(d) Client fails to pay any Fees when due;
(e) there is an unusual spike or increase in Client’s use of the Services that impacts CloudIT’s ability to deliver the Services; or
(f) as the result of any Excusing Event (collectively, “Service Suspensions”).
Any Client Content stored in the Services may be unavailable during a Service Suspension.
CloudIT will use commercially reasonable efforts to provide notice of any Service Suspension to Client and to provide updates regarding resumption of Services following any Service Suspension. Without limitation of Section 13, CloudIT will have no liability for any damages, liabilities, or losses resulting from any Service Suspension.
15. Term and Termination
15.1 For specific length of term, refer to schedule A of Client’s Service Level Agreement with CloudIT.
Termination for Convenience
15.2 Subject to any Minimum Commitment Term set forth in a particular Order, either party may terminate this Agreement or any or all Orders by notice to the other party, for any reason or no reason, with termination to be effective at the end of the last day of the calendar month immediately following such notice. For example, if one party provides the other with notice of termination of an Order on February 15, the Order will terminate at 11:59 PM on March 31. If Client terminates an Order with a Minimum Commitment Plan for convenience before the Minimum Commitment Term has expired, Client will pay to CloudIT the Early Termination Fee specified in the applicable Order(s).
Termination for Cause
15.3 Either party may terminate this Agreement or any or all Orders upon notice to the other party if the other party materially breaches any term or condition of this Agreement or any Order and fails to correct such breach within fifteen (15) days following notice specifying such breach. Without limitation, Client’s failure to timely pay Fees under an Order and Client’s (or any Authorized User’s) noncompliance with Section 4.b will constitute material breaches. In addition, CloudIT may immediately terminate any Order or particular Services under an Order by notice to Client if continuing to provide the applicable Services to Client becomes impractical or infeasible as the result of an Excusing Event.
Effect of Termination
15.4 Upon expiration or termination of this Agreement or any Order:
(a) CloudIT will cease providing the applicable Services and Client’s rights and licenses granted under this Agreement with respect to those Services will immediately terminate;
(b) all outstanding invoices as well as any Early Termination Fees (if applicable) will become immediately due and payable; and
(c) CloudIT will not be required to maintain or store, and may delete, Client content hosted or stored in connection with the terminated Services, unless otherwise agreed in the applicable Order.
15.5 Either party’s termination of this Agreement or any Order will be without prejudice to any other remedies that it may have at law or otherwise, and will not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement or any Order in accordance with its terms. The following Sections of these Terms will continue and survive after any expiration or termination: Sections 2, 4.2, 4.4, 4.5, 9, 10.4, 11, 12, 13, 15.4, 16, and 17.
16.1 If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by a court or tribunal of competent jurisdiction, then:
(a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and
(b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and be deemed to have been amended without further action by the parties to the extent necessary to make such provision valid and enforceable.
16.2 This Agreement shall be governed exclusively by the laws of the Province of Ontario and the laws of Canada applicable therein. Each party irrevocably submits to the exclusive jurisdiction of the courts of Ontario.
16.3 Any notice, request, demand or other communication required or permitted hereunder will:
(a) be in writing;
(b) reference this Agreement and the applicable Order; and
(c) be directed to the recipient’s address or email address (or facsimile number if applicable) specified in the applicable Order by prepaid registered post, hand delivery, or facsimile, and will be deemed to be properly given when received. In addition, CloudIT may provide general notices related to the Services (including updates to these Terms, the Service Descriptions and the Service Level Terms) via www.clouditcanada.com
16.4 Neither party may assign, delegate or otherwise transfer, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that:
(a) CloudIT may assign this Agreement without the prior written consent of Client to an affiliate or in connection with a merger, consolidation, or sale of all or a portion of CloudIT’s assets or business; and
(b) CloudIT may have any of the Services performed on its behalf by its affiliates or other third parties.
16.5 Subject to the foregoing, the rights and liabilities of the parties hereto are binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment, delegation or other transfer except in accordance with this Section will be null and void.
Dispute Resolution; Venue
16.6 In the event of any dispute between the parties concerning interpretations or enforcement of this Agreement, except for requests for injunctive or other equitable relief, the parties agree to first attempt informal dispute resolution by selecting a joint resolution committee consisting of up to two (2) representatives from each party (the “Committee”) to meet and attempt to resolve the dispute within thirty (30) days from the date that notice of demand for such dispute resolution is made pursuant to part 6.3 above. The Committee will determine its own procedures for the resolution of the dispute, and any decision of the Committee will be binding on the parties. If the Committee process does not result in resolution of the dispute, each Party then such dispute shall be referred to arbitration pursuant to the provisions of the Arbitrations Act of Ontario, as amended. The arbitration shall be conducted by a single arbitrator. The arbitrator shall fix the time and place for the purpose of hearing such evidence and representations of the parties. The arbitrator shall, after hearing any evidence and representations that the parties may submit, make their decision and reduce the same to writing and deliver one copy to each of the parties. The decision of the arbitrator shall be the final determination of the issues and the decision shall be binding upon the parties in respect of procedure and the conduct of the parties during the proceedings. The costs of the arbitration shall be borne by the parties as may be specified in the final determination of the arbitrator.Neither party will commence legal proceedings unless the parties have undertaken the process set out in this Section, and those processes have failed to resolve the dispute.
Right to Reference
16.7 Unless Client advises CloudIT otherwise in writing, Client consents to CloudIT using its name in any of CloudIT’s marketing, sales materials, press releases, public announcements and case studies.
16.8 Any waiver by either party of a breach of or a default under any provision of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
16.9 If Client provides suggestions for changes or improvements or other feedback to CloudIT about the Services or any of CloudIT’s other products or services, CloudIT may use such suggestions and feedback for any purpose without obligation or payment of any consideration to Client.
16.10 Except for the payment of Fees, neither party will be liable to the other for failure or delay in performing its obligations under the Agreement if such failure or delay is due to circumstances beyond its reasonable control, including acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, interruption of or delay in telecommunications or third party services, unanticipated product development problems, or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services (each, a “Force Majeure Event”).
Relationship of the Parties
16.11 Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
No Third Party Beneficiaries
16.12 Nothing in this Agreement, express or implied, is intended to confer, nor will anything herein confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.
Changes to the Terms
16.13 CloudIT may update these Terms from time to time with notice to Client, which notice CloudIT may provide to Client by any reasonable means, including by posting the updated version of these Terms at https://www.clouditcanada.com. If Client is using Services under an Order with a Minimum Commitment Plan, then within ten (10) business days of the applicable update, Client may give CloudIT notice that it wishes to continue to use such Services for the remainder of its Minimum Commitment Term under the previously existing Terms. In such event, Client will be permitted to continue to use the applicable Services under the previously existing Terms for the remainder of the Minimum Commitment Term. If, at the time of the update to these Terms, Client is not using Services under an Order with a Minimum Commitment Plan and Client does not wish to accept the update, then Client’s only recourse will be to terminate the applicable Services in accordance with Section 15.2. Except as expressly set forth in this Section, if Client continues to use the Services following any update to these Terms, then Client will be deemed to have accepted (and will be bound by) the applicable update (provided that any material change to these Terms will not apply retroactively to any claim or dispute between Client and CloudIT in connection with these Terms that arose prior to the date of such material change).
16.14 This Agreement, including any applicable Orders and Third Party Software Terms, the AUP and any applicable Service Descriptions, Privacy Policies, and Service Level Terms, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement, and all past courses of dealing and industry custom. Except as otherwise provided herein with respect to updating of certain terms by CloudIT, no modifications, additions, or amendments to this Agreement will be effective unless set forth in a writing referencing this Agreement and signed by a duly authorized representative of each Party. If there is any conflict or inconsistency between these Terms and any Order, then:
(a) the Order will take precedence and will resolve such conflict or inconsistency solely with respect to the specific variable terms included in the Order concerning pricing, payment, term, termination, or specific Services ordered; and
(b) these Terms will take precedence with respect to all other matters.
16.15 For purposes of interpreting this Agreement:
(a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular;
(b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph;
(c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”;
(d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy;
(e) the references herein to the parties will refer to their permitted successors and assigns;
(f) all headings are inserted for reference purposes only and do not affect the interpretation of the Agreement; and
(g) unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as it may be from time-to-time amended.
16.16 In the event an ambiguity or question of intent or interpretation arises, these Terms will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of the authorship of any of the provisions of this Agreement. Client waives any claims or defences regarding the validity or enforceability of this Agreement arising from any electronic submission or presentation of the Agreement to Client.