Services Agreement

Version 1.2

The following standard terms and conditions apply to all Services (as herein defined) provided to you, the “Customer”, by Acro Media Inc., hereinafter referred to as (the “Provider”).

By activating and using the Services, Customer agrees that it has read, understood, and is bound by this services agreement (“Services Agreement”).  Provider may amend this Services Agreement from time to time and will update the revision date on this webpage to indicate when changes have been made.  

1. DEFINITIONS

For the purposes of this Service Agreement, the following capitalized words have the following meanings:

a)      “Change Request” means an executed request to change the Services as specified in a Schedule of Work;

b)      “Parties” means the Provider and the Customer and “Party” means either one of them;

c)      “Services” means any services provided by Provider to Customer pursuant to a Schedule of Work;

d)      “Services Agreement” means this Services Agreement and the related Schedule of Work and Change Requests;

e)      “Schedule of Work” means one or more executed schedules setting out the Services that Customer has requested Provider to provision (which may include any of the following schedules: Hosting, Service Level Agreement, Retained Services Agreement or Web Development) and as may be amended by Change Requests from time to time;

f)      “Taxes” means all taxes, levies, fees, charges or fees of any kind or nature levied or imposed upon Provider or arising from or relating to the provision by Provider of the Services or use thereof by Customer together with any penalties, fines or interest thereon by any provincial or local government, public authority, including its agencies, commissions and tribunals, having jurisdiction; and

g)      “Work Product” means the work produced in the provision of the Services.

2. SERVICES

a)      In consideration of the mutual covenants and agreements contained herein and in each Schedule of Work, Provider shall provide the Services to the Customer.

b)      Provider reserves the right to amend its Services offerings and to add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time and shall provide Customer with notification of such additions, deletions, suspensions or modifications to the extent they affect Customer.

c)      In the event that Customer should require any changes to the Services or Work Product after completion, Customer shall follow the guidelines set forth in the Change Request, which is available upon request from Provider.

3. DEPOSIT, FEES AND PAYMENT.

a)      Deposit: Provider may request a deposit from Customer, as set out in the applicable Schedule of Work, prior to commencing any work and such deposit shall be applied to payment of Customer’s Fees.

b)      Fees: The fees for the Services are as set out in the applicable Schedule of Work (the “Fees”).  Provider, in its sole discretion, shall determine the Fees that it charges for the Services and Provider may, upon providing thirty (30) days prior written notice to Customer amend such pricing. If Customer does not agree to such amendments, Customer may, within such thirty (30) day period, terminate this Services Agreement by providing written notice to Provider and such termination shall be effective on the earlier of (i) thirty (30) days from the notice of termination and (ii) the expiration of the current monthly billing cycle, if applicable.  Upon such termination, Customer shall remain responsible for payment of all Fees, Additional Fees (defined below) and other charges incurred prior to the date of termination.  Customer’s non-termination of this Services Agreement shall constitute acceptance of such amendments.

c)      Additional Fees: Customer may be charged additional fees (“Additional Fees”) and the circumstances in which such Additional Fees may be charged will be outlined in the applicable Schedule of Work.

d)      Taxes: Customer shall be responsible for all applicable Taxes which are related to the Services.

e)      Payments: Provider shall invoice Customer for the Services, as described in each Schedule of Work, and payments shall be due and payable to Provider within thirty (30) days after the date of Provider invoice to Customer.  Amounts owing after the due date are subject to a late payment interest charge calculated on the outstanding amount at 1.5% per month (19.6% per year) until paid in full. Customer shall have ninety (90) days following receipt of each invoice within which to dispute any sums appearing in that invoice; failure on the part of Customer to do so shall be deemed a waiver of Customer’s right to dispute such sums. Unless otherwise specified in a Schedule of Work, all amounts due for Services shall be billed in the currency of the country in which the customer is headquartered.

f)      Credit Card: Customer must provide Provider with a valid credit card that will be billed for invoiced Services that remain unpaid thirty (30) days after date of original invoice. Provider is authorized to so charge Customer’s credit card for any overdue Service-related fees.

g)      Costs of Compliance: Customer agrees to pay any and all costs incurred by Provider in enforcing customer’s compliance with this clause 3 , including but not limited to collection fees, arbitration and or legal costs and the Provider’s time.

4. USE OF SERVICES AND WORK PRODUCT

a)      Customer will not use the Services, nor permit them to be used, for any purpose contrary to law.

b)      Customer will be allowed to resell the Work Product under its own branding.

c)      Customer shall not have the right to use Providers’ trademarks or trade names in any manner unless Provider gives prior written consent and/or grants the appropriate license.  Customer shall not have the right to use Provider’s registered or pending patents unless Provider authorizes such use through license.

d)      Customer grants to the Provider: (i) a limited license to use Customer logos exclusively for the purposes of showcasing the Work Product in Provider’s marketing materials. Furthermore, Customer agrees that that Provider may put a byline and link on the bottom of Customer's completed website establishing authorship credit and, if necessary, copyright notice, which byline and link may be removed at Customer's request; (ii) a limited, non-exclusive, non-sublicenseable, royalty-free, worldwide license to use Customer's trademarks, service marks, trade names, logos or other commercial or product designations ("Marks") for the purposes of providing the Services in accordance with the Customer's standard user policies; and (iii) a limited license to cache the entirety of Customer's Content and Customer's website, including content supplied by third parties, hosted by Provider under this Services Agreement agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.

e)      Customer shall at all times ensure that the Work Product is used by it and its customers and end-users in the manner in which it was intended when developed and will not permit any Work Product to be recoded or otherwise altered, except with Provider’s prior approval.  If Customer chooses to utilize the Work Product other than as intended, alter or recode the Work Product, add third party services or software to the Work Product, or otherwise combine the Work Product with software not approved by Provider, Provider cannot guarantee the stability of the Work Product and Customer shall assume all liability for the altered, amended or combined Work Product and agrees to indemnify Provider for any costs, claims or damages associated with such altered, amended or combined Work Product. Provider expressly disclaims responsibility for such altered, amended or combined Work Product.

f)      Provider does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Customer via the Services (the "Content"). Customer's Content includes content of Customer's end users and/or users of Customer's website. Accordingly, Customer is responsible for Customer's end users' content and all activities on Customer's website.

g)     Unless otherwise specified in a Schedule of Work, Customer agrees that Provider shall not be liable to Customer or any third party for any claims arising from a failure to back up or adequately store any data related to Customer’s website. Customer agrees that Customer will regularly back up Customer's data whether or not Provider agrees to or actually perform backup of any data.

5. PCI COMPLIANCE & PROTECTION OF PERSONAL INFORMATION

a)      The Drupal Commerce software platform that Provider develops for its customers is not PCI compliant on its own.  However, if Customer requires PCI compliancy, Provider can adapt the platform and such PCI compliance will be a term of Customer’s Services as set out in the applicable Schedule of Work. Unless otherwise provided in a Schedule of Work, Customer assumes all liability for its actions and the inherent risk associated with viewing, processing, storing or transmitting credit card or other personal information (together, “Personal Information”) and agrees to indemnify Provider for any costs, claims or damages associated with such risk. Provider expressly disclaims responsibility for any such risk or liability.

b)      Customer further acknowledges and agrees that it is Customer’s sole responsibility to understand the regulatory and legal requirements applicable to Customer’s particular business and its use of data, including the use of Personal Information that may be received or transmitted by Customer or customer’s end users or through Customer‘s website. This responsibility includes, but is not limited to, ensuring that Customer has the appropriate technical and organisational security measures to protect against unauthorised or unlawful processing of Personal Information and accidental loss or destruction of, or damage to, Personal Information.  

6. INDEMNIFICATION

a)      Customer is responsible for, and shall indemnify, defer and hold harmless Provider and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns against all losses, liability, claims, damages, judgments, expenses and costs, of any kind whatsoever, including reasonable legal fees and disbursements, suffered or incurred by Provider arising from claims of any third party (including Customer’s customers and end-users) on any basis whatsoever and arising from or in connection with any event, including but not limited to:

                           (i)            use of the Work Product by Customer or its customers or end-users or by any third party authorized by Customer;

                           (ii)            the Customer’s (or its customer’s or end-user’s) data, equipment, computer network and other facilities;

                           (iii)            breach of any term contained in this Services Agreement or a Schedule of Work by Customer or by any third party authorized by Customer;

                           (iv)            the negligence or willful misconduct of Customer, its customers, end-users or any third party authorized by Customer in connection with use of the Work Product

                           (v)            claims made by Customer against any third party who in turn claims contribution or indemnity from Provider;

                           (vi)            the unauthorised or unlawful processing of Personal Information and accidental loss or destruction of, or damage to, Personal Information; and

                           (vii)            libel, slander, passing off or infringement of copyright, trademark or patent, illegal, improper or unauthorized use of the Work Product arising from any content carried by Customer, or its customers or end-users.

b)      Customer furthermore indemnifies Provider and any of Provider's contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all losses, liability, claims, damages, expenses and costs, of any kind whatsoever, including reasonable legal fees and disbursements, suffered or incurred by Provider arising from or in connection with any claims relating to final Work Product which has been altered by Customer or which Customer has allowed to be altered.

c)      Provider may seek written assurances from Customer concerning Customer's promise to indemnify Provider and Customer’s failure to provide those assurances may be considered by Provider to be a material breach of this Services Agreement. Provider shall have the right to participate in any defense by Customer of a third-party claim related to Customer’s use of any of the Provider's Services, with counsel of Provider's choice at Provider's own expense. Provider shall reasonably cooperate in the defense at Customer's request and expense. Customer shall have sole responsibility to defend Provider against any claim, but Customer must receive Provider's prior written consent regarding any related settlement.

7. LIMITATION OF LIABILITY

a)      Except with respect to loss or damage caused as a direct result of Provider's negligence, Customer agrees that Provider will not be liable to Customer in relation to:  i) any act or omission of any person other than Provider; ii) any act or omission of the Customer or its customers or end-users;  iii) any claims related to defamation, copyright or trademark infringement or the violation of any third party rights arising from use of the Work Product;  iv) infringement of patents arising from combining or using Customer-provided software with the Work Product where the Work Product would pose no infringement in the absence of such combination or use; v) any use of the Work Product not authorized by Provider; or vi) any matters arising relating to final Work Product which has been altered by Customer or which Customer has allowed to be altered.

b)      Providers’ total cumulative liability, if any, to Customer for damages related to the provision of Services pursuant to any Schedule of Work (including fundamental breach or otherwise), negligence, any act or omission by Provider or its representatives, or under any other theory of law or equity will be limited to those damages actually proven as directly attributable to Provider and will in no event exceed the aggregated fees paid by Customer for such Services under such Schedule of Work.

c)      NOTWITHSTANDING ANYTHING IN THESE TERMS OF THIS SERVICES AGREEMENT OR ANY SCHEDULE OF WORK, IN NO EVENT WILL ANY PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA.

d)      EXCEPT AS EXPRESSLY STATED IN A SCHEDULE OF WORK, PROVIDER MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE SERVICES AND, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT ALL REQUIREMENTS OF CUSTOMER WILL BE MET WITH RESPECT TO ANY SERVICES PROVIDED BY PROVIDER HEREUNDER, ARE HEREBY DISCLAIMED BY PROVIDER AND EXCLUDED FROM THE AGREEMENT BETWEEN THE PARTIES.

e)      Provider disclaims any and all loss or liability resulting from: (a) any corrective action taken against Customer or Customer’s customers relating to a breach of any term of this Services Agreement by such party; (b) the transfer of data either to or from Customer or stored by Customer or any of Customer’s customers via the Services; (c) Customer's inability to use Provider's products (including Provider’s client access program, AcroNet) or any component of the Services delivered; (d) the unauthorized use or misuse of Customer's passwords for AcroNet; (e) errors, omissions, or misstatements in any and all information or Services provided under this Services Agreement; (f) limitations, incompatibilities, defects, or other problems inherent in web related mediums not under Provider's sole control; (g) access delays or access interruptions; (h) data non-delivery or data mis-delivery; (i) the deletion of or failure to store email messages; (j) the development or interruption of Customer's website and/or; (k) processing of any authorized modification to Customer's domain name record.

8. TERMINATION

a)      Either Party may terminate this Services Agreement without penalty on written notice to the other Party if the other Party has filed a petition in or has been assigned into bankruptcy or insolvency legislation, or makes an assignment for the benefit of creditors or makes any arrangements or otherwise becomes subject to any proceedings under applicable bankruptcy laws with a trustee, or receiver appointed in respect of a substantial portion of the property of the other Party, or in the event the other Party liquidates or winds up its daily operations for any reason whatsoever.

b)      Customer may terminate the Services before delivery of the final Work Product, upon thirty (30) days written notice to the Provider and Provider shall deliver all Services that Provider has received payment for within (10) days of the termination date.

c)      Provider may suspend the Services, or terminate any or all Schedules of Work at its option and without penalty if:

                           (i)            Customer fails, within the time set forth in any written notification to Customer by Provider, to make full payment of any invoice that remains unpaid in accordance with the terms of payment set out in a Schedule of Work or this Services Agreement.

                           (ii)            Customer has failed within five (5) days following written notification to Customer by Provider to remedy any breach of a material term or condition of a Schedule of Work or this Services Agreement to be performed or fulfilled by Customer; or

                           (iii)            Customer has failed to act on or provide Customer feedback or materials required for the provision of the Services for a period of thirty (30) days.

d)      If Provider has terminated any or all Schedules of Work in accordance with section 7(c), then Provider shall cease providing the applicable Services and Customer shall pay to Provider forthwith upon demand, in one lump sum, all fees and charges incurred prior to such termination and all costs incurred by Provider in closing Customer’s account.

e)      Where Provider has suspended any or all Services in accordance with section 7(c), Fees for the suspended Services may continue and Customer shall remain responsible for the payment of all such Fees.

f)       Where Customer has terminated the Services, the Customer shall remain responsible for payment of all Service-related fees due up to the time of termination.

9. NON-SOLICITATION 

The Parties agree not to, without the prior written consent of the other Party, directly or indirectly solicit, hire or otherwise enter into any employment or partnership relationship with any of the personnel of the other Party (including employees and contractors) for a period of 2 years after the expiration or termination of all Services being provided by Provider.

10. OWNERSHIP

Other than Work Products which make use of third party products, upon full payment for engaged Services, Provider irrevocably and without limitation assigns, conveys and otherwise transfers to Customer all right, title and interest (including all copyrights, trademarks, patents, trade secrets and other intellectual property rights) for all Work Products prepared for Customer by Provider in accordance with the terms of this Services Agreement including, but not limited to, graphics files, creative, content, reports, non-source animation files, data files, non-source software product and programs, HTML files and documentation.

11. EXPORT COMPLIANCE

In connection with the Services, Customer acknowledges and agrees that it will comply with all applicable import, and export control laws and regulations applicable to it or to the jurisdictions in which Customer conducts on its business. For clarity, the Customer is solely responsible for such compliance related to the manner in which the Work Product is used.

12. THIRD PARTY PRODUCTS & HOSTING

a)      Third Party Products: Customer expressly agrees that any third party products, services or offerings (“Third Party Products”) included as a part of any of the Services provided by Provider shall be used by Customer in accordance with the terms of any applicable third party licenses and usage policies. Customer's failure to abide by any Third Party license and usage policies may result in the immediate termination of Services by Provider. Customer acknowledges that Provider may, in its sole discretion, change any Third Party that provides Services under this Services Agreement. In the event that Provider changes a Third Party, Provider may provide Customer with notification of such change along with any accompanying required changes in terms and conditions which shall become additional terms and conditions of this Services Agreement. Customer understands that any license provided by Provider to Customer hereunder does not extend to such Third Party Products.

b)      Third Party Hosting: Provider has executed contracts with certain third party website hosting providers, including: Rackspace Managed Hosting (www.rackspace.com), Amazon Web Services (aws.amazon.com) and Cogeco Peer 1 (www.cogecopeer1.com) (together, the “Third Party Hosts”). Customer acknowledges and agrees that Provider shall provide hosting services to Customer through a Third Party Host and such Third Party Host shall be specified on the applicable Schedule of Work. Customer agrees to be subject to the terms of the acceptable use policy of the applicable Third Party Host (an “AUP”).  The AUPs can be found at:  www.rackspace.com/information/legal/aup.php (Rackspace), aws.amazon.com/aup (Amazon) and www.cogecopeer1.com/en/legal/acceptable-use-policy/ (Cogeco Peer 1).  Any violation of the applicable AUP may result in the suspension or termination of the Customer's account or such other action as Provider deems appropriate.

13. GENERAL

a)      Governing Law: Any dispute between Provider and Customer, with respect to a Schedule of Work, shall be governed by, and construed in accordance with, the laws in force in the Province of British Columbia, and the laws of Canada applicable therein. Customer agrees to attorn to exclusive jurisdiction of the Courts of British Columbia, and agree that any action or proceeding brought by either Provider or Customer to enforce any provision of a Schedule of Work shall be commenced in British Columbia.

b)      Successors and Assigns: A Schedule of Work may not be assigned by Customer without the prior written consent of Provider, such consent not to be unreasonably withheld. Provider may, without consent, assign any Schedule of Work in connection with a corporate reorganization or merger or to any entity that controls, is controlled by or is under common control with Provider or to a purchaser of all or substantially all of its assets or business, and in any such event, Provider shall be released from its obligations hereunder to the extent they are assumed by the assignee.

c)      Force Majeure: Any delay or failure of either Party to perform its obligations under a Schedule of Work or this Services Agreement shall be excused, to the extent that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party and without its fault or negligence, such as by way of example and not by way of limitation, acts of God, action by any governmental authority, fires, floods, war, acts of terrorism, insurrection, labour or transportation, or court injunction provided that, written notice of the delay shall be given by the affected Party to the other Party within ten (10) days.

d)      Purchase Orders: Notwithstanding any contrary language in any purchase order or similar document issued by the Customer to Provider with respect to the Services, any such purchase order or similar document shall be deemed for the Customer's internal use only and the provisions thereof shall have no effect whatsoever upon the provisions of the applicable Schedule of Work or this Services Agreement.

e)      Severability: Each provision of any applicable Schedule of Work or this Services Agreement shall be severable.  If any provision of a Schedule of Work or this Services Agreement is illegal or invalid, the illegality or invalidity shall not affect the validity of the remainder of such Schedule of Work or this Services Agreement. In the event that a Schedule of Work is a tripartite agreement, then such Schedule of Work shall be divisible in relation to the Parties insofar as the Schedule of Work can be performed without the collaboration of the excluded Party.

f)      Rights Arising from Schedules of Work: Nothing herein expressed or implied is intended nor shall be construed to confer on or to give any person, other than the Parties and their respective successors and permitted assigns, any rights or remedies under or by reason of any Schedules of Work or this Services Agreement.

g)      Agency Limitations: Any Schedule of Work does not constitute any Party a partner, employee, agent or legal representative or joint venturer with the other, and no Party may act on behalf of the other in any manner nor assume or create any obligation of any kind express or implied, on behalf of the other Party nor bind the other Party in any respect whatsoever, except in accordance with such Schedule of Work.

h)      Waiver and Indulgence: Waiver by any Party of any violation or breach of a Schedule of Work or this Services Agreement in any instance shall not be taken or held to be a waiver of any subsequent violation or breach or as a waiver of the provision itself that is breached, nor shall any delay or omission on the part of any Party to exercise any right arising from such violation or breach alter or impair that Party’s right as to the same or any future violation or breach. Similarly, no indulgence or goodwill of any kind by a Party not contemplated by a Schedule of Work or this Services Agreement shall be taken or construed as a right that can be enforced against such Party by the other.

i)      Notices: Any notice or other written communication provided or permitted hereunder shall be in writing and given by personal delivery (against receipt), or sent by registered mail (against receipt) postage prepaid or email, or transmitted by facsimile, addressed to the other Party as set out on the applicable Schedule of Work. Any notice so given shall be deemed to have been received on the date on which it was delivered in person, or, if transmitted by facsimile during the regular business hours of the party receiving the notice, on the date it was transmitted, or if transmitted after business hours, on the next business day, or if sent by registered mail on the fifth business day thereafter.

j)      Confidentiality: Each Party (the "Receiving Party") agrees to protect the confidentiality of any information disclosed by the other Party (including the existence and terms of this Services Agreement) and shall not disclose, copy or use any such confidential information except as contemplated by this Services Agreement. Without limiting the generality of the foregoing, no public announcement, advertising or any other form of public release (including any disclosure to obtain financing) regarding the existence or the contents of this Services Agreement shall be made by any Party without the prior written consent of the other Party. The foregoing shall not apply to information which is or becomes publicly known otherwise than by reason of a breach of this Services Agreement by the Receiving Party or has been independently developed outside the scope of this Agreement. Notwithstanding the above, the Parties acknowledge that disclosure of this Services Agreement will be required to certain of their respective employees, agents or representatives to effectuate the purposes hereof, or as is necessary to comply with federal, provincial or local regulatory requirements, and any such disclosure shall not require the prior written consent of the other Party. In enforcing this provision, each Party shall be entitled to all remedies available at law, including the right to injunctive relief and specific performance.

k)      Legality: Nothing contained in any Schedule of Work or this Services Agreement shall be construed so as to require the commission of any act or the payment of any compensation which is contrary to law, which may, from time to time, be in effect and by its terms controlling of the applicable Schedule of Work. If there is any conflict between any provision of Schedule of Work and any such applicable law the latter shall prevail and the provisions of such Schedule of Work affected shall be modified to the extent (but only to the extent) necessary to remove such conflict and permit such compliance with the law.

l)      Cumulative Remedies: No remedy conferred upon or reserved in favour of a Party shall exclude any other remedy herein or existing in law or in equity or by statute, but each shall be cumulative and in addition to every other remedy given hereunder or now hereafter existing.

m)    Non-Variation: No amendment or consensual cancellation of a Schedule of Work or any provision or term thereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in connection with a Schedule of Work shall be binding unless recorded in a written document signed by a duly authorized representative from all Parties. The Parties acknowledge having read and understood each Schedule of Work and are not entering into such Schedule of Work on the basis of any representations not expressly set forth in it. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in a Schedule of Work or this Services Agreement whether it induced the contract between the Parties or not.

n)     Headings: The section headings appearing in this Services Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

o)     Arbitration:  Any disputes arising out of this Services Agreement shall be submitted to binding arbitration pursuant to the rules of the British Columbia Arbitration and Mediation Institute, 366-1275 West 6th Avenue, Vancouver, British Columbia (www.bcami.org). The Arbitrator's award shall be final and judgment may be entered in any court having jurisdiction over this Services Agreement.

p)     Survival: Sections 3 through 13 survive the termination of this agreement.