These terms (“Terms”) are incorporated by reference into the Agreement executed between TOPS Telecommunications Inc. (“TOPS”) and the customer identified therein (“Customer”) and form a valid and binding part thereof. These Terms govern the provision of the Hosted Services. Capitalized terms defined in the main body of the Agreement shall have corresponding meanings in these Terms.
Definitions. Capitalized terms used in these General Terms and not otherwise defined in the Agreement have the following meanings:
“Authorized User” means a Customer employee or individual contractor with a user account on the TOPS Application Server who is authorized by Customer to access and use the Hosted Services. The maximum number of Authorized Users is set out in the Agreement.
“Confidential Information” has the meaning ascribed to it in Section 13.1.
“Content” includes text, messages, files, photos, video, sounds, musical works, works of authorship, links, emails, postings, code, data, images, graphics, video, chat, designs, polygons, files or other materials.
“Customer Data” means any information (including Personal Information), data, communications or Content uploaded, generated, stored, or transmitted by Customer and/or Authorized Users as part of, or in conjunction with, the use of theHosted Services, but excludes any uniform resource locators or domain names that are used by Customer in connection with the Hosted Services or the TOPS Application Server.
“Customer Technology” means any information, materials, equipment, and technology owned by Customer, the use of which is required by TOPS in connection with the delivery of the Services.
“Documentation” means the documentation provided by TOPS to Customer under the Agreement in connection with the Services.
“Equipment” means equipment supplied by TOPS for use with the Hosted Services, as specified in the Agreement (as amended from time to time).
“Hosted Services” means the turnkey, TOPS-hosted, cloud-based data and voice solution described in the Agreement, and includes any updates made available by TOPS to Customer from time to time.
“Initial Term” means the initial contract period for the provision of the Hosted Services, as set out in the Agreement.
“IP Rights” means any right that is granted or recognized under any Canadian, United States, European or foreign legislation regarding patents, copyrights, neighbouring rights, moral rights, trademarks (including trade names and service marks), trade secrets, industrial designs, design rights, mask work, integrated circuit topography, privacy and publicity rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing.
“Installation Site” means the Customer location set out in the Agreement where any equipment required for the use of the Hosted Services, other than remote IP sets, are located.
“Personal Information” means information about an identifiable individual.
“Services” means the installation service, Hosted Services and Support Services provided by TOPS under the Agreement.
“Support Services” means the technical support services to be provided by TOPS to Customer in respect of the Hosted Services.
“Specifications” means the written specifications for the Hosted Services as agreed by TOPS and Customer, as set out in the Agreement.
“System” means the proprietary and third-party information technology systems used by TOPS to provide the Hosted Services.
“Term” means the Initial Term of the Agreement and any Renewal Term(s).
“TOPS Application Server” means the online environment hosted and maintained by TOPS, or on TOPS’ behalf by a third-party service provider, for the purpose of hosting the Hosted Services for access over the Internet.
“TOPS Property” has the meaning ascribed to it in Section 9.1.
“TOPS Trademarks” means the registered and unregistered trademarks, trade names, logos or service marks of TOPS as used by TOPS in connection with the Hosted Services and Services from time to time.
- 3.1 Commencement. The Initial Term will commence upon completion of installation, as notified by TOPS to Customer. Changes, amendments, and relocations are effective when all changes are complete. Unless earlier terminated in accordance with Section 17, the term will automatically renew for successive one-year terms (each, a “Renewal Term”) unless either party provides written notice of its intention not to renew, not less than sixty (60) days prior to the expiry of the then-current term.
- 3.2 Use of the Hosted Services. Customer’s access to and use of the Hosted Services is on a subscription basis during the Term. Subject to the terms and conditions of the Agreement, including without limitation the restrictions in Section 3.3, TOPS grants to Customer a non-exclusive, non-assignable, non-transferable (except as permitted by Section 18.4) and limited license to access and use the Hosted Services in the Authorized Area solely for Customer’s own internal day-to-day normal business purposes, and to grant each Authorized User the limited right to use the Hosted Services and the TOPS Application Serversolely as necessary for the exercise by Customer of its rights hereunder. Customer will ensure that the Hosted Services are used in accordance with TOPS Telecom Voice Acceptable Use Policyandwill be liable to TOPS and its third-party suppliers for any misuse of Customer’s account, whether or not authorized by Customer.
- 3.3 Restrictions on Use. Customer shall not, and shall not permit an Authorized User or any other person to, directly or indirectly do any of the following: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying algorithms of the Hosted Services (or any part thereof) and/or the System; (b) modify, translate, or create derivative works based on any portion of the Hosted Services, or Documentation; (c) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any portion of the Hosted Services and/or the System or make any portion of the Hosted Services available to any person other than Authorized Users; (d) use any part of the Hosted Services for timesharing or service bureau purposes, or otherwise make the Hosted Services available for use by or for the benefit of third parties, including Customer affiliates; (e) publish or disclose to any person evaluations of the Services; (f) tamper with the security of any portion of the Hosted Services and/or the System; (g) knowingly access data on or available through the Hosted Services and/or the System not intended for Customer or Authorized Users; (h) attempt to probe, scan or test the vulnerability of any portion of the System or to breach the security or authentication measures without TOPS’ prior written consent; (i) use the Hosted Services in any way or for any purpose that violates any applicable local, provincial, federal or foreign law, rule or regulation, including applicable laws governing the transmission or export of restricted information; (j) use the Hosted Services to transmit or store any material that is libelous, defamatory, discriminatory, malicious or harmful to any person; (k) to transmit or store any material that threatens, advocates, promotes or otherwise encourages violence, or which provides instruction, information or assistance in causing or carrying out such violence; or (l) create, solicit, transmit, upload or publish any comment, request, suggestion, proposal, image, data file or other communication through the Hosted Services which does or may: (i) violate the rights of others, including any privacy or intellectual property rights; (ii) contain or embody any computer virus, harmful component or corrupted data; (iii) adversely affect the performance or availability of any of the Hosted Services or the System; or (iv) be used to impersonate any person, including TOPS personnel.
- 3.4 Authorized Users and Accounts.
- 3.4.1 Customer’s access to and use of the Hosted Services is restricted to the specified number of Authorized Users set forth in the Agreement. Customer may add Authorized Users at any time, in accordance with the fee structure set out in the Agreement. Each Authorized User will be entitled to access the TOPS Application Server by means of a user account (“Account”) using a unique username and password. Customer may not grant access to the Hosted Services, or any part thereof, to any third party (except a third party acting on behalf of Customer, and for whom Customer is liable).
- 3.4.2 Customer must purchase at least one administrator Account for accessing the Hosted Services. Through the administrator Account, Customer will be able to establish additional Accounts for Authorized Users. Customer is responsible for authorizing and controlling access to the Hosted Services by Authorized Users and is responsible for ensuring the confidentiality of all usernames, passwords and other account identifiers. Customer agrees to notify TOPS immediately upon becoming aware of any breach of security or unauthorized use of any Accounts (including the administrator Account). Customer will be solely liable for all use and misuse of any Account, whether authorized by Customer.
- 3.4.3 User Accounts may only be assigned to and used by one named individual at a time and may not be shared with any other individual; provided that user Accounts may be reassigned by Customer to a new individual replacing one who no longer requires ongoing use of the Account. An Account may not be used concurrently by more than one Authorized User. Customer is responsible to TOPS for all use of the User Accounts and the Hosted Services by its Authorized Users.
- 3.4.4 Software. The use of the Hosted Services and Equipment may require certain third-party software (“Software”). Customer is granted a limited license to use the Software solely in connection with Customer’s use of the Hosted Services and Equipment as permitted under the Agreement. Customer’s use of the Software may be subject to the terms of third-party end user license agreements. Copies of third-party licenses for Software supplied by TOPS are available from TOPS or the third party licensors.
- 3.4.5 TOPS Changes to the Hosted Services. From time to time during the Term, TOPS may add, reduce or revise features and functionality of the Hosted Services (“Changes”), including systemic updates and upgrades, without prior notice to Customer; provided, however, that TOPS will endeavour to provide not less than thirty (30) days prior written notice of any Changes that may or will materially impact the Customer’s use of the Hosted Service as anticipated by the Agreement.
- 3.4.6 Changes to Off-Net Services. Some Off-Net Services provided by TOPS may have a third-party component which is subject to regulatory changes from time to time. TOPS reserves the right to make changes to the Agreement as a result of tariff or other regulatory changes to the third-party component of the Services as follows: (a) the monthly recurring charges; and/or (b) the method by which the Services are delivered. TOPS Telecom will make commercially reasonable efforts to minimize any rate increases as a result of the third-party changes. If a change is made to any third-party service component which affects the Services, TOPS will provide Customer with sixty (60) days’ written notice of the expected change and the impact it will have on the Services (“Change Notice”), including any change to the monthly recurring charges. Upon receipt of the Change Notice, Customer will have the option of either accepting the proposed changes or cancelling the affected Services without penalty. If Customer chooses to cancel the affected Services, Customer must provide TOPS with written notice of termination of the Services within thirty (30) days of receipt of the Change Notice. If notice of termination is not received by TOPS within thirty (30) days of the Change Notice, Customer will be deemed to have accepted the change to the Services.
- 3.4.7 Additional Services/Customer Change Requests. Customer may request additional services by submitting a written change request. Any additional services must be maintained for a minimum of three (3) months, after which time the additional services may be cancelled without penalty provided that the original Hosted Services remain in effect for the remainder of the Term. Additional monthly recurring charges will apply for additional packages and features, and one-time change request and porting fees may apply.
CUSTOMER NOTIFICATION: IMPORTANT INFORMATION REGARDING VoIP 9-1-1 EMERGENCY SERVICES
- 4.1 Differences and Limitations. Customer acknowledges that hosted Voice over IP (“VoIP”) services are not a replacement for fixed line or cellular telephones and have certain important limitations relative to traditional telephone services, particularly with respect to 9-1-1 and enhanced 9-1-1 emergency services. 9-1-1 services may not be available or may be delayed, VoIP 9-1-1 calls may be misdirected to incorrect emergency response sites, and responders and dispatchers may not be able to capture or retain automatic telephone number or location information. CUSTOMER MUST REVIEW THE DETAILED DESCRIPTION OF THE DIFFERENCES AND LIMITATIONS OF VOIP 9-1-1 SERVICES, AND ENSURE THAT ALL USERS HAVE BEEN ADVISED OF, UNDERSTAND, AND CONSENT TO THESE LIMITATIONS AND INHERENT RISKS PRIOR TO USE OF THE HOSTED SERVICES. CUSTOMER SHOULD CONTINUALLY REMIND ALL USERS OF THE RISKS AND LIMITATIONS OF VOIP SERVICES.
- 4.2 Registration of Physical Location. It is Customer’s responsibility to ensure that its service location information on file with TOPS is kept current and up to date at all times. If Customer relocates any direct inward dial numbers (“DIDs”) to a location other than the Installation Site or is using the Hosted Voice over mobile device service, it is the Customer’s responsibility to promptly provide TOPS with the service address and the DID numbers associated with the service address. Once Customer advises TOPS of an address change associated with any DID numbers it may take up to three (3) business days for the 9-1-1 records with the local Public Safety Answering Points (PSAPs) to be updated.
- 4.3 Acceptance of Risk. By accepting these Terms and by using the VoIP services after having been made aware by TOPS of the limitations and associated risks inherent in the use of VoIP services, Customer is deemed to have accepted all risks and limitations. TOPS expressly disclaims any liability for any and all losses, costs, damages, including injury or death, resulting from Customer’s or its users’ use of the VoIP Services, and Customer agrees to defend, indemnify and hold harmless TOPS, its officers, directors, employees and affiliates from any claims, losses, damages, fines, penalties or costs in connection with any issues arising from Customer or its end users use of the VoIP services, and in particular any issues related to not being able to access 9-1-1 services or any delays with emergency services being able to identify locations associated with 9-1-1 calls.
- 5.1 Use of the Hosted Services. Customer is responsible for complying with, and causing Authorized Users to comply with, the terms of the Agreement governing use of the Hosted Services, including the TOPS Telecom Voice Acceptable Use Policy. Customer will notify TOPS immediately of any actual or suspected unauthorized use of Hosted Services or any Accounts, or other breach of security or the Acceptable Use Policy in relation to the Hosted Services, Customer Data or the System of which Customer becomes aware. Customer is responsible for all use of the Hosted Services procured by Customer, whether or not such use is authorized by Customer.
- 5.2 Customer Facilities. TOPS will deliver the Hosted Services to the Customer’s server room at the Installation Site. Customer shall provide access to all such Customer facilities, equipment and technology as TOPS may require. Customer will prepare and maintain the Installation Site, including ensuring that all necessary wiring, power outlets, and telephone jacks have been installed, tested and labelled as required by TOPS. Customer wiring will be used to extend the services to end users, and is the responsibility of Customer. If requested, TOPS will extend the wiring at an additional cost. Any services provided by TOPS in connection with relocating the Hosted Services, or adding or relocating Equipment, will be changeable at TOPS’ standard time and materials rates.
- 5.3 Internet Connectivity. Customer is responsible for arranging Internet connectivity that is adequate to support network user and data volumes. TOPS will not be liable for any delay or inability to connect to the Services, or low connectivity speed resulting from insufficient bandwidth.
- 5.4 Customer-Supplied Equipment. Customer is responsible for ensuring the compatibility of all Customer-supplied devices and other equipment used in conjunction with the Hosted Services. Customer acknowledges that some devices, including some video cameras and mobile devices, may not be compatible with the Hosted Services and/or any software applications provided in conjunction with the Hosted Services. TOPS cannot guarantee the compatibility of any equipment not provided by it, and expressly disclaims any responsibility for such equipment or its use by Customer.
- 5.5 Contact Information and Service Location. Customer is responsible for providing correct contact and service location information (including name, address and telephone number) for Customer’s account, and for ensuring that such information is up to date at all times. Failure to do so may result in 9-1-1 emergency calls being misdirected to an incorrect emergency response site. If Customer relocates any direct inward dial numbers (DIDs) to a location other than the Installation Site or is using the Hosted Voice over Mobile Device Service, Customer must promptly notify TOPS with the service address and DID numbers associated with the service address. Customer acknowledges that it may take up to three days for 9-1-1 records to be updated with local Public Safety Answering Points (PSAPs).
- 5.6 Forms. Customer agrees to promptly execute all third-party forms required for the provision of the Services including authorizations for the porting of existing telephone numbers, directory listing forms, and such other forms as may be required by TOPS depending upon Customer’s service requirements, e.g. toll-free numbers. Customer is solely responsible for ensuring the accuracy of all Customer information contained on the forms, including directory listing information.
- 5.7 Media File Management. If Customer chooses to use the “Music on Hold” feature available with the Services, Customer will be responsible for sourcing music from an authorized source and downloading it as a wave file (either .wav or .wma). Customer is solely responsible for obtaining all necessary permissions for the use of the music, and for the payment of all applicable fees for the use, reproduction, communication, and public performance of the music in connection with the Services. Customer will indemnify and hold TOPS harmless for losses, costs and damages arising from a breach of this provision.
- 5.8 Call Recording Service. If call recording has been activated, Customer will have the ability to record telephone calls and manage recorded content. Customer is solely responsible for the access to and use of the call recording services. Without limitation, and without limiting the generality of Section 3.4, Customer is responsible for: (a) ensuring the confidentiality of all passwords and Account identifiers; (b) unauthorized use or downloads of audio files; (c) establishing and enforcing policies around access permissions for Authorized Users, including who may retrieve, playback and delete recordings; and (d) ensuring that all use complies with applicable laws, including privacy laws and laws protecting IP Rights. Customer acknowledges and agrees that an audio file will be deleted fourteen (14) days after the recording is made. Customer will be responsible for archiving any Customer recordings.
- 5.9 Voice and Data Overages. Customer will be responsible for any long distance and toll-free charges that exceed the amounts specified in the Agreement. Further, Customer acknowledges that mobile devices that are not connected to Wi-Fi will default to the third-party cellular service provider, and Customer will be solely liable for any resulting voice or data plan overages.
- 6.1 Monitoring. TOPS has no obligation to monitor or pre-screen any Customer Data. Customer shall be solely responsible at all times for monitoring Customer Data and for ensuring that all Customer Data complies with the Agreement. Customer is solely responsible for the accuracy, quality, integrity and legality of Customer Data and the means by which Customer acquires Customer Data.
- 6.2 Rights to Customer Data. As between TOPS and Customer, Customer retains all rights, including IP Rights, in and to all Customer Data. Customer hereby grants to TOPS a limited license to access and use Customer Data solely: (a) as necessary for the purpose of providing the Hosted Services and other Services to Customer, which includes making Customer Data available to Authorized Users; and (b) where TOPS reasonably determines that such access and use is necessary, such as: (i) the protection of the System, a user or a third party; (ii) in the case of an emergency; (iii) to investigate illegal activity, or pursuant to the order of a court or other administrative body; or (iv) with Customer consent. TOPS will own and may use any non-identifying meta data created in connection with the provision of the Services. Customer agrees that, in connection with the provision of the Hosted Services, Customer Data may be transmitted, processed, and stored outside of Canada, including in the United States, where it may be accessed by law enforcement and other governmental authorities. All rights in Customer Data held by Customer and not granted to TOPS are reserved to Customer. Customer represents and warrants that Customer is the owner or authorized licensee of all rights in and to all Customer Data, or otherwise has the rights to grant the license set forth in this Section 6.2. The foregoing representation and warranty shall survive the expiration or termination of the Agreement.
- 6.3 Personal Information. If Customer discloses Personal Information to TOPS or transfers Personal Information to TOPS for processing, Customer is deemed to represent, warrant and covenant to TOPS that: (a) Customer is solely and exclusively responsible for the collection, accuracy or completeness of Personal Information provided to TOPS; and (b) all such Personal Information provided to TOPS has been or will be collected and disclosed in accordance with all applicable laws. Customer hereby grants to TOPS the limited right to collect, store, access and use the Personal Information solely for purposes of providing the Services to Customer. Customer represents and warrants that it has obtained and will continue to obtain all necessary consents from all individuals whose Personal Information is disclosed or transferred to TOPS pursuant to this Section 6.3.
- 6.4 Data Security. TOPS shall, in providing the Services, maintain appropriate safety and security procedures that meet or exceed prevailing industry standards. TOPS shall endeavour to promptly notify Customer of any material failure of any safety and security procedures, or any security breach related to the System or TOPS’ network. However, Customer acknowledges that no security technology can be guaranteed to be failsafe and agrees that TOPS is not responsible for any information, including personal information, that is lost, or that is altered, intercepted, viewed or stored by a third party without authorization.
- 7.1 Equipment Rental. All rental Equipment provided by TOPS will remain the property of TOPS and will be removed by TOPS upon the termination of the Services. Customer may not remove the Equipment (excluding remote IP sets) from the Installation Site. Unless otherwise specified in the Agreement, the rental of any Equipment will be subject to the TOPS Telecommunications Inc. Standard Equipment Rental Terms and Conditions.
- 7.2 Equipment Financing. Equipment leased through a financing arrangement may be subject to additional terms and conditions as agreed between Customer and the third-party financier. Customer agrees that Customer shall be solely liable, and TOPS shall have no liability, for Customer’s compliance with the terms governing any such third-party financing arrangement.
- 7.3 Limited Warranty. Where permitted, TOPS will pass through to Customer any warranties provided by the third-party Equipment manufacturer. TOPS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY RELATING TO THE EQUIPMENT AND THE CUSTOMER’S USE THEREOF.
- 8.1 Support. Subject to Section 8.2, TOPS agrees to provide support for the Hosted Services during the Term.
- 8.2 Exclusions. TOPS will respond to all Customer requests. However, the Contract Price does not include, and additional charges may apply with respect to any support necessitated by a failure of the Hosted Services or damage to the Equipment (reasonable wear and tear excepted) resulting from:
- misuse or negligent operation of the Equipment, including use for any purposes for which it was not designed;
- accident, theft or unexplained loss;
- failure or addition of any Customer- or third party-supplied wiring, equipment, hardware or software used to host, access or use the Equipment;
- failure of the Customer to perform any Customer obligations described in Section 5, including any failure to adequately prepare the Installation Site;
- power failures, power surges, electrical current fluctuations, and other problems with the electrical supply;
- repair or alteration of the Equipment by anyone other than TOPS or its designated agents;
- failure of Internet or other communications connections;
- failure of any third-party services;
- malicious attacks on the Customer’s systems, or on any third-party systems required to access or use the Equipment;
- “No trouble found” tickets;
- compliance with the requirements of any governmental authority, or service, communication, or utility provider; or
- other circumstances beyond TOPS’s reasonable control, including natural disasters such as lightening strikes, fire, flood, wind, and events of “Force Majeure” (as described in Section 18.6).
- 8.3 Additional Services. Unless otherwise set out in the Agreement, TOPS’s support obligations do not include consultancy, training, back-up processing, use of trial accounts, creation of customized software, corrections, or updates to Customer data, or any consumable or expendable parts such as paper, tapes, ribbons, diskettes and batteries. Additional Services may be provided by TOPS, at its discretion, at the sole expense of Customer.
INTELLECTUAL PROPERTY RIGHTS
- 9.1 Ownership. The Hosted Services and Documentation (including any Content therein that is not Customer Data), all copies and portions thereof, TOPS Trademarks and all improvements, enhancements, modifications and derivative works thereof (excluding all Customer Data and Customer Technology), and all IP Rights therein (collectively, “TOPS Property”), are and shall remain the sole and exclusive property of TOPS and its licensors and other third party suppliers, and are protected by domestic and international laws and treaties. Customer agrees not to, and not to cause or permit others to: (a) remove any proprietary notices, markings and legends appearing on or contained in or on any TOPS Property or the Hosted Services; or (b) change any security or rights management technology used in connection with any TOPS Property.
- 9.2 Rights Reserved By TOPS. Customer’s rights to use the Hosted Services and other TOPS Property shall be limited to those expressly granted in the Agreement. No other rights with respect to the Hosted Services or any other TOPS Property (including all related IP Rights) are implied. Customer agrees that Customer will use all commercially reasonable measures to protect TOPS’ proprietary interests and IP Rights in TOPS Property and will comply with the terms of the Agreement to protect TOPS’ proprietary and IP Rights in TOPS Property. Except as TOPS may otherwise expressly agree in writing, any discoveries, enhancements, improvements, customizations, translations, or other modifications made to, or derived from, TOPS Property, and all related IP Rights therein, shall be owned exclusively by TOPS.
- 9.3 Trademarks. Customer recognizes and acknowledges the great value of the goodwill associated with TOPS’ name and trademarks, and the identification of TOPS’ goods or services therewith. Customer agrees that it obtains no rights, title or interest of any kind in or to any trademarks, tradenames, logos, service marks or other markings belonging to TOPS.
- 9.4 Feedback. Any suggestions, enhancement requests, recommendations or other feedback provided by Customer to TOPS relating to the Services (collectively “Feedback”) shall become TOPS’ sole property. TOPS shall exclusively own all rights, including all IP Rights, in and to all Feedback. TOPS shall be entitled to the unrestricted use and dissemination of any Feedback for any purpose, commercial or otherwise, without acknowledgement, attribution or compensation to Customer.
FEES AND PAYMENT
- 10.1 Fees. The fees for the Hosted Services are as set out in the Agreement (“Contract Price”). Except as otherwise specified in the Agreement, all fees are non-refundable. The Contract Price does not include any fees related to the use of music for the “Music on Hold” feature, which shall be the sole responsibility of Customer as described in Section 5.7. All applicable sales taxes, duties and levies shall be the responsibility of Customer. If, at any time during the Term, the scope of the Hosted Services, including the number of Authorized Users, changes, the Contract Price will be adjusted accordingly.
- 10.2 Taxes. All fees are net of any sales, use, value added and similar taxes, as well as any duties and levies, imposed by any governmental authority (“Taxes”), all of which shall be the responsibility of Customer, but excluding taxes on TOPS’ income. Customer shall pay all such Taxes or provide TOPS with a tax or levy exemption certificate acceptable to the taxing authority. In the event that TOPS is required to pay any Taxes or other charges for which Customer is responsible, Customer shall promptly reimburse TOPS upon receipt of TOPS’ invoice therefor.
- 10.3 Payment Terms. The Contract Price is payable monthly in advance. Unless otherwise set out in the Agreement, the Contract Price includes any amounts payable by Customer pursuant to Equipment financing arrangements with third parties, which TOPS agrees to remit to the third-party financier. Payment is due net thirty (30) days from the date of invoice. Except as specifically provided herein, payment obligations are non-cancellable. If requested by TOPS for the purposes of credit review, the Customer will submit its most current financial information to TOPS. All amounts are payable in Canadian currency unless otherwise agreed. Interest may be charged on overdue amounts at the rate of 2% for each month that the payment is overdue (26.8% per annum, effective rate), or the highest rate permitted by applicable law, whichever is lower. All amounts payable to TOPS shall be paid in full without any deduction or withholding. If at any time the financial condition of the Customer so warrants, or if the Customer fails to make any payment(s) when due, or if the Customer defaults on any obligation to TOPS, TOPS may at its discretion alter the terms of payment, suspend or delay delivery of all or any Services, cancel the Agreement pending receipt of advance payment, and/or pursue any other remedies available under the Agreement, at law or in equity.
- 11.1 Warranty. TOPS represents and warrants to Customer that, during the Term, the Hosted Services will function substantially in accordance with the agreed Specifications.
- 11.2 No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SYSTEM, THE HOSTED SERVICES AND ALL OTHER SERVICES (INCLUDING THE USE THEREOF) ARE PROVIDED “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TOPS DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OR TRADE, OR COURSE OF DEALING REGARDING OR RELATED TO THE AGREEMENT, THE HOSTED SERVICES, THE DOCUMENTATION, THE SERVICES, OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TOPS DOES NOT WARRANT THAT THE HOSTED SERVICES WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR THAT IT WILL SATISFY CUSTOMER’S REQUIREMENTS OR PRODUCE ANY SPECIFIC RESULTS. EXCEPT FOR TOPS’ OBLIGATIONS THAT ARE EXPRESSLY SET FORTH IN THE AGREEMENT, THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE HOSTED SERVICES REMAINS WITH CUSTOMER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, TOPS DOES NOT WARRANT THE ACCURACY OR SECURITY OF ANY CUSTOMER DATA, INCLUDING ANY DATA GENERATED THROUGH THE USE OF THE HOSTED SERVICES.
LIMITATION OF LIABILITY
- 12.1 IN NO EVENT WILL TOPS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR RELATED TO THE SERVICES OR THE AGREEMENT, HOWEVER CAUSED, INCLUDING UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE OR OTHERWISE, EVEN IF TOPS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOPS’, ITS DIRECTORS’, OFFICERS’ AND EMPLOYEES’ TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THE AGREEMENT SHALL NOT EXCEED THE LESSER OF: (A) THE AMOUNT ACTUALLY PAID TO TOPS BY CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIATION OF A CLAIM BY CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT; OR (B) TWENTY THOUSAND ($20,000) CANADIAN DOLLARS.
- 12.2 Time Limit. No claim or action arising under or in connection with the Agreement may be brought more than twelve (12) months following the occurrence of the action or event giving rise to the claim.
- 13.1 Definition. “Confidential Information” includes any information, technology, document, material, idea or data that is disclosed by one party to the other, whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information, technology, document, material, idea or data and the circumstances of the disclosure, including information regarding a party’s products and services, business information, customer lists, prices, financial information, intellectual property and other trade secrets or confidential information, and anything tangible from which such information may be obtained. Confidential Information includes the terms and conditions of the Agreement and any Personal Information disclosed or made available by one party to another. TOPS’ Confidential Information is expressly understood to include the Hosted Services, related software code and other intellectual property. Confidential Information, however, shall not include any document, material, idea, data or other information which: (a) is known to the receiving party under no obligation of confidence, at the time of disclosure by the other party; (b) is lawfully obtained by the receiving party from a third party who, in making such disclosure, breaches no obligation of confidence to the other party; (c) is or becomes publicly known through no wrongful act of the receiving party; or (d) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information. The onus of proving that any of the above-mentioned exceptions applies is on the receiving party.
- 13.2 Protection. Each party agrees to take all necessary precautions to maintain the confidentiality of the other party’s Confidential Information disclosed in connection with the Agreement by using at least the same degree of care as that party uses with respect to its own Confidential Information of a like kind or nature, but no less than a reasonable degree of care. Each party agrees not to use the other party’s Confidential Information for any purpose not expressly permitted by the Agreement and shall limit the disclosure of the other party’s Confidential Information to the receiving party’s employees and contractors having a need to know in connection with the provision by TOPS of the Services or Customer’s use of the Services.
- 13.3 Compelled Disclosure. The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to object to the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not objecting to the disclosure, the disclosing party will reimburse the receiving party for its reasonable costs of compiling and providing secure access to the Confidential Information.
- 14.1 Infringement Indemnity. Subject to Section 14.2, TOPS will defend, indemnify and hold harmless Customer from and against any claims, liability, and related costs, damages and other losses, resulting from a claim that Customer’s use of the Hosted Services in accordance with the Agreement infringes the Canadian IP Rights of any third party other than a patent reading on a standard (an “Infringement Claim”); provided that: (a) Customer promptly notifies TOPS in writing within a reasonable period of time after learning of the Infringement Claim; (b) Customer agrees to allow TOPS to control any litigation and settlement related to the Infringement Claim; and (c) Customer provides such reasonable assistance and cooperation as TOPS may require in connection with the defense or settlement of the Infringement Claim. TOPS may not settle or compromise any Infringement Claim without the prior written consent of Customer, if and to the extent such settlement or compromise would result in any admission of liability or payment by Customer for which Customer will not be indemnified by TOPS pursuant to this Section 14.1.
- 14.2 Exclusions. TOPS shall have no liability with respect to any Infringement Claim to the extent that such Infringement Claim: (a) results from a cause for which Customer is liable to indemnify TOPS pursuant to Section 15; (b) would have been avoided but for the combination, operation or use of the Hosted Services with any product, service, equipment or software not provided or approved by TOPS, and which is not required for the normal use of the Hosted Services; (c) is based on the operation or use of the Hosted Services in a manner not consistent with the Documentation or in violation of the Agreement or the Acceptable Use Policy; (d) would have been avoided but for the combination or incorporation of any Customer Data together with the Hosted Services; (e) is based on, or would have been avoided but for, any modifications to the Hosted Services made without TOPS’ express prior written approval; (f) is based on, or would have been avoided but for TOPS’ adherence to, Customer requirements or instructions; or (g) is based on, or would have been avoided but for, Customer’s failure to implement any corrections, modifications or updates offered by TOPS.
- 14.3 Remedy. Should the Hosted Services become, or if TOPS reasonably believes that the Hosted Services may likely become, subject to an Infringement Claim, then TOPS may, at its sole option and expense: (a) procure the right for Customer to continue using the affected portion of the Hosted Services; (b) replace the same with other software, services or other material having equivalent functionality that is not subject to an Infringement Claim; (c) modify the affected Hosted Services so that the same is no longer infringing; or (d) if TOPS determines that option (a), (b) or (c) cannot be achieved on a commercially reasonable basis, terminate the Agreement and refund to Customer the unused portion of any fees paid in advance by Customer for the affected Services, based on the number of full months, if any, remaining in the Term.
Customer shall indemnify, defend (at TOPS’ election) and hold TOPS, its affiliates, and their respective officers, directors, employees and agents harmless from and against any third party claims, losses, damages and expenses, including reasonable legal fees, arising from or relating to: (a) Customer Data (other than TOPS’ or its personnel’s unauthorized use or disclosure thereof); (b) any infringement, misappropriation or violation of any IP Rights or privacy rights by Customer or any Authorized User; (c) any violation of applicable law by Customer or an Authorized User; or (d) Customer’s or an Authorized User’s use or misuse of the Services in violation of the Agreement, including liability arising in connection with 9-1-1 emergency services or any of the circumstances listed in Section 14.2. TOPS will: (i) provide Customer with written notice of such claim within a reasonable period of time after learning of the claim; and (ii) provide reasonable cooperation in response to Customer’s request for assistance. Customer may not settle or compromise any indemnified claim without the prior written consent of TOPS, if and to the extent such settlement or compromise would result in any admission of liability, obligation, or payment by TOPS of any amounts for which it will not be indemnified by Customer pursuant to this Section 15.
HIGH RISK ACTIVITIES
HIGH RISK ACTIVITIES. If the Customer elects to use the Hosted Services for any activities or in connection with any business requiring fail-safe performance, in which the failure or malfunction of the Services could lead to death, personal injury, or severe physical or environmental damage, the Customer hereby acknowledges and agrees that: (a) the Customer shall assume all risk and liabilities associated with such uses; (b) the Customer shall indemnify, defend and hold TOPS and its suppliers harmless from and against any and all losses, claims, damages, actions, suits, proceedings, demands, assessments, adjustments, liabilities, costs and expenses (including attorneys’ fees) arising as a result of such uses; and (c) the Customer shall be solely responsible to ensure its compliance with any and all applicable federal, provincial, and local statutes, laws, regulations, and guidelines, including, without limitation, any CRTC restrictions or warnings, in connection with such uses.
- 17.1 Termination for Convenience. Customer may terminate the Hosted Services, or any part thereof, at any time for convenience prior to the expiry of the Term upon not less than thirty (30) days’ prior written notice to TOPS. The following early termination fees will apply: (a) Customer will pay an early termination fee equal to fifty percent (50%) of the monthly service charge for the terminated Service for the remainder of the Term; and (b) an amount equal to the greater of: (i) fifty percent (50%) of the monthly service charges for the terminated Services for the remainder of the Term; and (ii) the total amount of TOPS’ unrecovered costs for the provisioning of the Services. Termination fees will be payable in full within thirty days of the effective date of termination of the Services. Customer agrees that the termination fees are a genuine pre-estimate of the damages that will be incurred by TOPS as a result of the early termination payable as liquidated damages, and not as a penalty.
- 17.2 Termination for Breach. In the event that either party believes that the other has materially breached any obligations under the Agreement, such party shall notify the breaching party in writing. The breaching party shall have thirty (30) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that the breach has been cured. Except as provided in Section 17.3, if the breach is not cured by the breaching party or the notice of breach is not withdrawn by the non-breaching party within thirty (30) days, the non-breaching party shall have the right to terminate the Agreement without further notice and without the refund of any fees paid to TOPS; provided, however, that if TOPS is the breaching party, TOPS will refund any unrealized amounts prepaid for the Hosted Services on a prorated basis up to a maximum of six (6) months’ worth of monthly fees.
- 17.3 Immediate Termination. Either party (“Terminating Party”) may terminate the Agreement effective immediately (without providing a right to cure or refund of any portion of fees) if the other party institutes a proceeding, a proceeding is commenced against or affecting the other party, or the Terminating Party reasonably believes that a proceeding will be instituted: (a) seeking to adjudicate it as bankrupt or insolvent; (b) seeking liquidation, dissolution, winding up, arrangement, protection, relief or composition of it or any of its property, assets or debt; (c) making a proposal with respect to it under any law relating to bankruptcy, insolvency, reorganization or compromise of debts or other similar laws; or (d) seeking to appoint a receiver, trustee, agent, custodian or other similar official for it or for all or part of its assets or property.
- 17.4 Suspension or Termination of Accounts. TOPS reserves the right to suspend or terminate, upon not less than five days’ prior notice to Customer, the Account of any Authorized User that is, or TOPS reasonably believes is, in material violation of any terms of the Agreement applicable to Authorized User, if the violation is not rectified during the five-day notice period. Notwithstanding the foregoing, Customer agrees that TOPS shall not be required to provide prior notice of any suspension in cases where TOPS reasonably believes that such suspension is required to prevent, or to prevent the continuation of: (a) serious harm to any person; (b) criminal activity; or (c) imminent harm to the Hosted Services, the System, or any party’s use of any of the foregoing.
- 17.5 Effect of Termination. Upon the termination, expiration or non-renewal of the Agreement: (a) Customer shall pay all undisputed fees and other amounts owing to TOPS for the Services up to and including the effective date of termination or expiry; (b) Customer’s rights to use the Services, including its right to use the Hosted Services, shall terminate and Customer (including all Authorized Users) shall immediately cease use of the Hosted Services; (c) each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession or under its care or control; (d) if requested by Customer, TOPS shall provide, at Customer’s expense, a machine-readable copy of any Customer Data, and shall thereafter promptly (but in any event, within thirty (30) days of the termination or expiry of the Agreement) irretrievably delete all Customer Data from the Hosted Services and the System; and (e) any terms and conditions of the Agreement, which by their nature extend beyond the termination or expiry of the Agreement, shall survive the termination or expiry of the Agreement, including Sections 3.3, 4.3, 5.9, 6.3, 9, 10, 11, 12, 13, 14, 15, 16, 17.5, 18.1, 18.7, 18.9 and 18.10of these Terms.
- 18.1 Governing Law. The Agreement, including all documents incorporated by reference and any amendments, will be construed, interpreted, and governed by the laws of the Province of British Columbia, Canada, without regard to its conflicts of laws principles. The courts of the Province of British Columbia will have exclusive authority to resolve any dispute that arises out of or in connection with the Agreement that cannot be resolved amicably through discussions between the parties’ senior management.
- 18.2 Severability. In the event that any provision of the Agreement is determined to be unenforceable or invalid under any applicable law or by applicable court decision, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
- 18.3 Waiver. The waiver by either party of a breach of any provisions of the Agreement shall be in writing and shall in no way be construed as a waiver of any other breach or of any succeeding breach of the provision or the waiver of the provision itself.
- 18.4 Assignment. The Agreement, or any part thereof, may not be assigned by Customer without the prior written approval of TOPS, which will not be unreasonably withheld or delayed. The Agreement will be binding on and ensure to the benefit of the parties and their respective successors and permitted assigns.
- 18.5 Independent Contractors. TOPS and Customer are independent contractors and neither the Agreement, nor any party thereof, will be deemed to establish any partnership, joint venture, employment, franchise, or agency between them. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
- 18.6 Force Majeure. Except with respect to payment obligations, the time for performance of a party’s obligations shall automatically be extended by the period during which one party is prevented from performing its obligations due to any cause beyond its reasonable control (a “Force Majeure Event”). Each party will use commercially reasonable efforts to prevent or avoid any event, condition or circumstance that would result in such Force Majeure Event. Failing prevention of the occurrence of such Force Majeure Event, the party that is unable to perform as a result of the Force Majeure Event will: (a) notify the other party immediately; (b) use commercially reasonable efforts to mitigate the effects of the Force Majeure Event; and (c) effect performance of its affected obligations under the Agreement as soon as reasonably possible, including through the use of alternate resources or workarounds.
- 18.7 Injunctive Relief. Notwithstanding Section 18.1, nothing in the Agreement shall prevent either party from applying to a court of competent jurisdiction for injunctive or other equitable relief in the case of an infringement of IP Rights (including any breach of use or license rights), data breach, breach of obligations with respect to Personal Information, or the breach of an obligation of confidentiality, to preserve or protect real or tangible property from continuing damage or risk of same or to preserve a legal right for which the applicable limitation period is about to expire.
- 18.8 Authority. Each party represents and warrants that: (a) it is a corporation validly subsisting under the laws of the jurisdiction in which it is incorporated; (b) it possesses full power and authority to enter into the Agreement and to perform its obligations hereunder; (c) its performance of the terms of the Agreement will not breach any separate agreement by which such party is bound; and (d) it shall at all times comply with applicable laws.
- 18.9 Legal Compliance. The Hosted Services, rental Equipment, Documentation and other TOPS Property and materials are subject to the export control laws of various countries, including Canada. Customer agrees that it will not submit the Hosted Services, any Equipment, Documentation, or other TOPS Property to any government agency for licensing consideration or other regulatory approval without the prior written consent of an authorized representative of TOPS, and that it will not export or use the Hosted Services, Documentation or TOPS Property in or to countries or to persons prohibited by such laws. Customer shall also be responsible for complying with all applicable laws of any country where Customer carries on business, with respect to the use of the Hosted Services, Documentation, rented Equipment or other TOPS Property and materials.
- 18.10 Notices. Any notice or other significant communication given to either party pursuant to the Agreement shall be in writing sent by fax or email: (a) to Customer at the address set out in the Agreement; and (b) to TOPS at #5-1905 Evergreen Court, Kelowna BC V1Y 9L4, Attention: Brian Fair [email protected], with a copy by fax to Brian Fair at fax no. 250-762-0300.