Académique Documents
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5255 Yonge Street, Suite 1205, Toronto, ON M2N 6P4 416.410.8444 416.410.8999 sales@atum.comhttp://www.atum.com
CONTRACT #
A. ORDER FORM
Atum agrees to provide Services, in accordance with the terms and conditions of this Agreement and as described in VIRTUAL P RIVATE SERVER HOSTING PLANS,hereto.
Ext.
ADMINISTRATIVE CONTACT
Same as "Account Information" above (if checked, skip this section) Full Name: Organization: Street Address: Suite/Unit Number: City: Postal/Zip Code: Phone:
Ext.
BILLING CONTACT *
Same as "Account Information" Above (if checked, skip this section) Same as "Administrative Contact" (if checked, skip this section) Full Name: Organization: Street Address: Suite/Unit Number: City: Postal/Zip Code: Phone:
Ext.
*Billing contact must exactly match the credit card holder name and billing address if a credit card is to be used for payment. The specified email address will receive invoices by the automated billing system. Service Plans may be modified, from time-to-time, upon written notice. If Customer requests modified or additional Services, Atum shall provide Customer with an updated Service Agreement. Atum shall proceed with such modified or additional Services only upon Customers acceptance of the replacement Service Agreement.
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# Servers(Unmanaged) # Servers (Managed) CPU RAM Hard Drive Capacity VPN Connection Fee/Month (Unmanaged) Fee/Month (Managed) Total Monthly Fee
0 0 1 @ 2.9GHz 512MB DDR3 25GB 10,000RPM 6GB SAS Included(1) $39.00 $89.00 $ 0.00
0 0 1 @ 2.9GHz 1024MB DDR3 50GB 10,000RPM 6GB SAS Included(1) $49.00 $99.00 $ 0.00
0 0 1 @ 2.9GHz 2048MB DDR3 50GB 10,000RPM 6GB SAS Included(2) $79.00 $129.00 $ 0.00
0 0 4 @ 2.9GHz 4096MB DDR3 200GB 10,000RPM 6GB SAS Included(3) $139.00 $189.00 $ 0.00
0 0 8 @ 2.9GHz 8192MB DDR3 200GB 10,000RPM 6GB SAS Included(5) $209.00 $259.00 $ 0.00
0 0
$ 0.00
IBM Server Equipment 100% Guaranteed Network Uptime with Service Level Agreement 100MB (shared) Internet Connection, 2TB Transfer Limit Firewall Services Level 5 RAID on all Storage Uninterruptable Power Supply on Host (UPS) Weekly Export Backup Service Server Monitoring Operating System Patching (during scheduled maintenance) 1 Hour of Technical Services (one time)
SOFTWARE LICENSING
Quantity Description Bit Level Monthly Fee Total
0 0
Windows Server 2008 Standard SPLA License Windows Server 2008 Standard SPLA License
32-Bit 64-Bit
$6.00 $6.00
$ 0.00 $ 0.00
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CONTRACT TERM
Start Date: (This is when Atum will start billing you and when Customers server will become available): st th **Atum bills on the 1 and 15 of every month. You initial billing will be prorated to the next billing date. ** 1/1/2011 Expiration Date: (1 year term) 1/01/2012
Operating System Bit: (Example 32 or 64 bit) 32-bit License Type: Example Open Source, Customer Supplied, SPLA (Purchased from Atum)
**If the license is customer supplied, please provide proof of purchase and any associated key(s) under separate cover. **
Open Source Panel Type: (Webmin is provided free of charge. All other panels must be supplied by customer.) Webmin Customer Alert Contacts:
** Provide up to 3 contacts that will receive important technical alerts such as maintenance notification. **
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PAYMENT SUMMARY *
Total VPS Fees Total Licensing Fees Total Monthly Charges Prorated VPS Fees Prorated Licensing Fees First Month of VPS Service First Month of Licensing Fees Total Payment Due on Signing $ 0.00 $ 0.00 $ 0.00 0 $0.00 $ 0.00 $ 0.00 $ 0.00 monthly monthly
* All prices are in CAD (Canadian Dollars) unless otherwise specified and are subject to applicable taxes.
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unavailable, that outage will be used to calculate the virtual private servers unavailability for the remedies provided below. Server Availability Objective Remedy: If Atum determines in its reasonable commercial judgment that subject to the exclusions above, Customer's virtual private server Services were unavailable for less than 100% in a week, Atum, upon Customer's request, will credit Customer's account the pro-rated charges for every hour of downtime, 1 days credit. For every single hour of downtime, the Customer will be credited 1 days fee, for only the effected virtual private server. For greater clarity, credits shall be capped to a maximum of the reported servers fee for one(1) month of service based on a 30 day period and can only be used as credit with Atum to obtain additional Services. SERVER INSTALLATION Server Install Objective Scope: Atums Server Install Objective is to have installation of Customer's virtual private server(s) completed within 24 hours of Customers billing cycle Start Date. If the Customer requests to have the server before the start of the billing cycle, the billing amount will be pro-rated and Atum will use commercially reasonable efforts to have 1-3 servers provisioned within 24 hours during the period of Monday to Friday, excluding weekends and statutory holidays. If there are to be 4-10 servers provisioned, Atum shall use commercially reasonable efforts to do so within 72 hours during the period of Monday to Friday, excluding weekends and statutory holidays. Atum shall promptly advise Customer if it does not have the required resources/hardware available and in such instance no billing will occur until such resources/hardware are in stock and in such instance, this objective will only apply once Atum has notified Customer that such resources/hardware is actually available for installation. Server Install Objective Process: Atums installation commitment shall commence on the day of the Bill on Date specified above in this Agreement. This server install objective shall not apply to trial servers nor shall it include any software configurations or application installations. Server Install Objective Remedy: Upon receiving the access code and instructions from Atum to access the virtual server, Customer shall have thirty (30) days within which to contact Atums billing support if Customer believes, acting reasonably, that Atum has failed to meet the Server Install Objective. If Customer contacts Atum within such thirty (30) day period, If Atum determines in its reasonable commercial judgment following its internal investigation that Atum has failed to meet this Server Install Objective, then the monthly fees for each server that was not installed in accordance with the Server Install Objective will be waived. For greater clarity, Atum must have received payment for all servers covered by the Server Install Objective in order to refund any first month charges with regard to this remedy. Customers rights to receive this Server Install Objective Remedy shall cease if Customer fails to contact Atum within the thirty (30) day period specified above. Exclusive Remedy. Customer acknowledges and agrees that the remedies set forth in this Service Level Objectives Section are Customers sole and exclusive remedies, and Atums entire liability, for any and all unavailability of the Services. C. ACCEPTABLE USAGE POLICY Customer acknowledges and agrees that use of any Services provided by Atum hereunder is subject to Atums Acceptable Usage Policy available at www.atum.com/aup which is hereby incorporated by reference into this Agreement. By signing this Agreement, Customer acknowledges and agrees that it has reviewed such Acceptable Usage Policy and agrees to abide by its terms, as the same may be reasonably amended from time to time, at all times during this Agreement. Atum reserves the right to modify the Acceptable Usage Policy at any time
and shall advise Customer of material changes to its Acceptable Usage Policy thirty (30) days prior to such changes taking effect. Customer acknowledges that it shall be responsible to review the most current version of the Acceptable Usage Policy available at www.atum.com/aup to ensure its compliance with such policy at all times during the term of this Agreement. D. GENERAL TERMS AND CONDITIONS 1. DEFINITIONS
Agreement means, collectively, this VPS Agreement including the Order Form above and these General Terms and Conditions, all Exhibits to this Agreement made pursuant to this Agreement (as may be amended from time to time). Authority means any government authority, agency, body or department, whether federal, provincial or municipal, having or claiming jurisdiction over the Agreement and Authorities means all such authorities, agencies, bodies and departments. Customer Content means any and all materials provided by (or on behalf of) Customer, including third party software, text, information, data, images (still and moving), trade-marks, and logos, and any portion thereof or as otherwise defined by the parties. Documentation means the technical publications relating to the Services made available by Atum to Customer hereunder, whether in electronic or paper form. Effective Date means the date this Agreement takes legal effect, being the date identified above as the Start Date. Intellectual Property Rights means (a) any and all Canadian proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing. Marks has the meaning set out in Section 3.4. Order Form means the order form signed by Customer and Atum that describes the Services (as they may be amended from time to time) above. Proceeding means any action, claim, demand, lawsuit or other proceeding. Requirements of Law mean all applicable Canadian requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, bylaws, rules, regulations, official plans, permits, licenses, authorizations, directions, and agreements with all Authorities that now or at any time hereafter may be applicable to either the Agreement, the Services and the Documentation or any part of them. Services means the services to be provided by Atum to Customer as set forth in the Order Form or otherwise under this Agreement. SLA means the service level agreement that describes the Service Level Objectives described in the Order Form above. Term has the meaning set out in Section 6.1. Terms not defined in this Section 1 will have the meaning given to them elsewhere in this Agreement.
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2.
SCOPE
Subject to the terms and conditions described herein, Atum will perform the Services set forth in this Agreement or any applicable Statement(s) of Work. To the extent Atums performance hereunder is dependent on Customer s actions, any dates or time periods relevant to Atums performance will be extended appropriately and equitably to reflect any delays due to Customer . 3. USE RIGHTS; RESTRICTIONS
order to provide the Services in accordance with this Agreement, the parties agree that Atum does not take legal title to any Customer Content supplied by Customer. 5. PAYMENT OF FEES
3.1 Access. Subject to Customer s compliance with the terms and conditions of this Agreement, Atum agrees that Customer has a limited, revocable, non-transferable, non-exclusive right to access and use the Services during the Term for the business purposes of Customer. All rights not expressly granted to Customer are reserved by Atum and its licensors. 3.2 Restrictions. Except as expressly permitted by Atum, Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) rent, lease, distribute, sublicense, resell, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, other than end users of the Services; or (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof. Customer will use the Services solely in compliance with all Requirements of Laws. 3.3 Ownership. Except for the rights and licenses expressly granted under this Section 3, Atum retains all right, title, and interest in and to all Services and other Intellectual Property Rights created, used, or provided by Atum to Customer pursuant to this Agreement. Atum will also own all right, title, and interest in and to all modifications or derivatives of, and improvements to, the Services, excluding any Customer Content. Customer a acknowledges that Atum Intellectual Property Rights includes data, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trade-marks, patents, industrial designs, know-how, show-how, software, and specifications owned or developed by Atum and that nothing contained herein will constitute an assignment or transfer of any such Atum Intellectual Property Rights to Customer ; 3.4 Marks. Atum grants to Customer , and Customer grants to Atum, a limited, revocable, non-transferable (except as otherwise set out in Section 13), non-exclusive, royalty-free, license to reproduce and display the others logos, trade-marks, trade names and other similar identifying material (the Marks). Any and all use of a partys Marks hereunder will inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest in or to the other partys Marks, but only a limited license that is revocable as set forth in this Agreement. Atum will only reproduce and display Customer s Marks that Customer uploads into the Services. Customer will only reproduce and display Atums Marks as such Marks are incorporated into and made available to Customer as part of the Services. 4. CLIENT CONTENT
5.1 Fees. Customer will pay Atum fees for the Services as set forth in the Order Form (collectively, Fees) during the Term commencing the Effective Date. Customer will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Fees (except for taxes on Atums income). All payments will be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Customer fails to pay any Fees when due, then in addition to any other rights Atum may have, Atum will have the right to suspend delivery of all or a portion of the Services to Customer , provided that Atum has supplied Customer prior notice and thirty (30) days opportunity to cure such deficiency If Customer believes that Atum has billed Customer incorrectly, Customer must notify Atum thereof (in writing) no later than thirty (30) days after the date of the invoice. If Atum pursues collection efforts against Customer due to Customer s failure to pay Fees due under this Agreement, Customer will pay Atums reasonable costs of collection, including any legal fees related thereto. After the first year of this Agreement, Atum will be entitled to change any of the Fees on at least thirty (30) days prior notice to Customer , provided that Atum will not be able to change any of the Fees more than twice in any twelve (12) month period and, further provided that, upon receipt of such notice from Atum, Customer will be entitled to terminate this Agreement on at least twenty (20) days notice to Atum. If Atum revokes its notice of change within such twenty (20) day period, this Agreement will not be so terminated and the Fees will not so change. 6. TERM; TERMINATION
6.1 Term. Subject to earlier termination as provided below, this Agreement will: (i) commence on the Effective Date and continue until the expiration date set forth in the Order Form (the Initial Term) and (ii) be automatically renewed for additional one-year periods after the Initial Term (each, a Renewal Term and the Initial Term and each Renewal Term, collectively, the Term), unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current term. 6.2 Termination. Either party may terminate this Agreement upon thirty (30) days notice if the other party breaches any of the terms or conditions of this Agreement and does not cure such breach within that thirty (30) day notice period. Atum may also terminate this Agreement for its convenience at any time upon forty-five (45) days prior notice to Customer. A party may also terminate this Agreement (i) immediately, if the other party is declared insolvent or bankrupt; or (ii) if a petition is filed in any court to declare the other party bankrupt or for a reorganization under bankruptcy law or any similar statute and such petition is not dismissed in ninety (90) days or if a trustee in bankruptcy or a receiver or similar entity is appointed for the other party. This Agreement may also be terminated as provided for and in accordance with Section 5.1 (subject to the right of Atum to revoke the notice set forth therein). 6.3 Effect of Termination. Termination or expiration of this Agreement will automatically terminate all Statements of Work entered hereunder. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination or expiration of this Agreement, all rights granted herein will revert to the granting party and all licenses will terminate, and Customer will make no further use of the Services. All accrued rights to payment and Sections 1, 3.2, 3.3, 3.4, 6.3, 6.4, 7, 8.3, 9, 10, 11, 12 and 13 of this Agreement will survive termination of this Agreement. 6.4 Return/Destruction of Customer Content/ Confidential Information. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all
Customer grants to Atum, throughout the Term, a limited, revocable, non-transferable, non-exclusive, royalty-free, license to use, reproduce, promote, distribute, modify, publicly display and perform, cache, and transmit Customer Content via the Services solely for the purposes of this Agreement. Without limiting any of Customer s obligations under this Agreement, Customer will provide Atum, in the form and format and on the schedule specified by Atum, all Customer Content reasonably required for Atums performance hereunder. For avoidance of doubt, although Atum will have the right hereunder to host, store, encode and reproduce the Customer Content (among other things) in
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Confidential Information of the other party. Additionally, Atum will within thirty (30) days of any termination or expiration of this Agreement, return or destroy all Customer Content that it had used to perform the Services. 7. CONFIDENTIALITY
(d)
will use reasonable efforts to treat, and to cause all its representatives and those of its affiliates to treat, all Confidential Information of the Disclosing Party as strictly confidential, provided that in no event will such efforts be less than the degree of care that the Receiving Party exercises in protecting its own valuable confidential information.
7.1 Confidential Information. Confidential Information means any and all data or information including specifications, documents, correspondence, research, software, trade secrets, discoveries, ideas, know-how, designs, drawings, product information, Customer s Personal Information (as defined in s. 8.3), technical information and all information concerning the operations, affairs and businesses of a party, the financial affairs of a party and the relations of a party with its clients, employees and service providers, and any such information of employees, clients, affiliates or representatives of a party, which is disclosed by such party (the Disclosing Party), whether directly in oral or material form to the other party (the Receiving Party), or indirectly, by permitting the Receiving Party to observe the conduct of the Disclosing Partys various operations or processes or otherwise. Confidential Information also includes any data or information described above which the Disclosing Party has obtained from a third party and which the Disclosing Party treats as proprietary or designates as Confidential Information, whether or not owned or developed by the Disclosing Party. The existence and terms of this Agreement will also be considered Confidential Information. Confidential Information does not include data or information that: (a) is within the public domain at the date of disclosure by the Disclosing Party or which thereafter enters the public domain through no fault of the Receiving Party or its representatives or affiliates (but only after it becomes part of the public domain); is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, and is not subject to confidentiality restrictions; following its disclosure to the Receiving Party, is received by the Receiving Party without obligation of confidence from a third party who the Receiving Party had no reason to believe was not lawfully in possession of such information free of any obligation of confidence; or is independently developed by the Receiving Party without reference to or knowledge of the Disclosing Partys Confidential Information.
7.3 The Receiving Party will be entitled to disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body, or otherwise, provided that the Receiving Party will: (a) give prompt notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy; take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and in any event, make such disclosure only to the extent so legally required. REPRESENTATIONS AND WARRANTIES
(b)
(c) 8.
(b)
(c)
(d)
8.1 Customer Warranties. Customer represents, warrants and covenants to Atum as follows: (i) Customer exists under the laws of its own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement, granting the licenses granted hereunder or would interfere with the use of the Customer Content provided under this Agreement; (ii) Customer owns or has properly licensed all rights in the Customer Content at all times during the Term; (iii) the Customer Content is not, nor will be, in violation of any Canadian Requirements of Laws, Atums Acceptable Usage Policy or Canadian third party Intellectual Property Rights; (iv) all Customer Content and Customer s use of the Services does and will comply with all applicable Canadian Requirements of Law; (v) Customer will comply with all relevant Canadian export and encryption laws and regulations; and (vi) neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the Effective Date) to which Customer is a party or by which it may be bound, or constitute a default thereunder. 8.2 Atum Warranties. Atum represents, warrants and covenants as follows: (i) Atum exists under the laws of the Province of Ontario, Canada and is not under any contractual obligation that would preclude it from entering into this Agreement; (ii) it is not under any contractual or other obligation that would preclude it from providing the Services or granting the licenses granted hereunder; (iii) it is the owner or creator or licensee of the Services and has all rights necessary to perform its obligations hereunder; (iv) it will perform the Services in a good, workmanlike and professional manner; and (v) the Services will substantially conform to the SLA. 8.3 Data Protection and Privacy. In performing its obligations under this Agreement, Atum will use commercially reasonable efforts to comply with all Canadian data protection and privacy Requirements of Law (Applicable Privacy Laws). Atum will also use commercially reasonable efforts to safeguard and prevent the misuse of all Personal Information disclosed to it under this Agreement or in the course of providing the Services. As used hereunder, Personal Information is information that is capable of being associated with a particular individual, including social insurance or social security numbers, credit history and score, password and login information. 9. DISCLAIMER
7.2 The Receiving Party: (a) will not, directly or indirectly, deal with, use, exploit or disclose such Confidential Information or any part thereof to any person or entity or for any purpose whatsoever (including in any manner that would benefit any competitor of the Disclosing Party) except as expressly permitted hereunder or unless and until expressly authorized to do so by the Disclosing Party; will use and reproduce the Confidential Information of the Disclosing Party only to the extent necessary to fulfill the Receiving Partys obligations or exercise its rights under this Agreement; will disclose the Confidential Information of the Disclosing Party only to its representatives and professional advisors, and those of its affiliates, who have a need to know such Confidential Information for the purposes of fulfilling the Receiving Partys obligations or exercising its rights under this Agreement, and who have assumed obligations of confidentiality equal to or greater than the obligations of the Receiving Party under this Section with respect to the Confidential Information. In all cases, the Receiving Party will be responsible for any loss, theft, unauthorized access of Confidential Information or breach of law by its representatives, professional advisors, affiliates, employees and subcontractors; and
(b)
(c)
9.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 AND THIS SECTION 9, THE SERVICES, DOCUMENTATION AND ALL OTHER
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TECHNOLOGIES, INFORMATION AND MATERIALS PROVIDED BY ATUM HEREUNDER ARE PROVIDED AS IS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND AND ATUM HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ATUM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM CUSTOMERS USE OF THE SERVICES. 9.2 LIMITATION OF LIABILITY. EXCEPT IN RESPECT OF A BREACH OF SECTIONS 8.1 (CUSTOMER WARRANTIES) OR 11 (NON-SOLICITATION) OR ANY OF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID (OR, IN CUSTOMERS CASE, PAYABLE) BY CUSTOMER TO ATUM UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. 10. INDEMNIFICATION 10.1 Customer Obligations. Customer will defend, indemnify and hold Atum harmless from and against all third party claims (and all resulting damages awarded, settlements and costs and expenses) arising from Customer s breach of Sections 8.1 or 11. 10.2 Requirements. Atum may, in its sole discretion, give Customer sole control of the defense and any settlement of such claim arising under Section 10.1, and shall provide to Customer, at Customers cost, any assistance necessary to such defense or settlement. 11. NON-SOLICITATION Neither party will encourage or solicit any employee or consultant of the other party to leave such other party for any reason for a period of one (1) year following any termination or expiration of this Agreement. 12. FORCE MAJEURE Except for Customers payment obligations, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters. Notwithstanding the foregoing, If a party seeks to excuse itself from its obligations under this Agreement due to a force majeure event, that party will promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance. If the anticipated or actual delay or nonperformance exceeds thirty (30) calendar days, the other party may
immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating party under the Agreement, at law or in equity. 13. MISCELLANEOUS Every use of the words including or includes in this Agreement is to be construed as meaning including without limitation or includes without limitation, respectively. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other partys prior written consent, provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement (including the Order Form, all Exhibits and Statements of Work (which are incorporated herein by this reference)) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement and all waivers and modifications thereof must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and each party does not have any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other partys name or on its behalf. All notices, demands, consents, authorizations, approvals and other communications under this Agreement will be in writing and will be deemed to have been duly given when received, in respect of Customer, at the applicable Customer address set forth in the first page of the Order Form or, in respect of Atum, at Atums address on the first page of the Order Form, Attention: Billing Department or as a party may otherwise direct, as follows: if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement will be governed by the laws applicable in the Province of Ontario without regard to the conflict of law provisions thereof. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the courts located in the City of Toronto. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement may be executed by the parties in one or more counterparts, each of which will be considered one and the same agreement, and will become effective when one or more counterparts have been signed by each party and delivered to the other party. This Agreement may be delivered by facsimile, email or other functionally equivalent electronic means of transmission.
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E. AUTHORIZATION
I certify that the above Order Form information is true and correct and that I have the legal authority to bind the corporate Customer described below. Additionally, I agree on behalf of the Customer to abide by Atums Acceptable Usage Policy as well as the General Terms and Conditions above. I understand that any cancellation of Services must be done in writing to the Billing Department via postal mail at the address listed above or via e-mail to sales@atum.com not less than one month prior to the proposed termination date. I hereby authorize Atum Corporation to bill the Customers Service fees to the charge account listed below: Credit Card Type: Credit Card Number: Expiry Date: Name on Credit Card:
VISA
PAD Customers must complete and sign the PAD Authorization Form. Please allow 48 hours for processing of PAD accounts.
TOR_LAW\ 7660515\1
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