This MasterFile Hosting Services Agreement (“Agreement”) is made and entered into as of the day and date electronically signed by user (“Company”) and accepted by MasterFile Software North America Inc., a British Columbia, Canada, corporation (“MasterFile”), or, on first use of any hosted service by Company.
The parties hereby agree:
1.1 “Company’s Data” shall mean any data, information or material submitted by Company during its usage of the Service.
1.2 “Initial Term” shall mean the initial period of time in which Company pays to receive the Service.
1.3 “License Administrator” shall mean the person that Company designates to purchase usage of the Services and otherwise administer the Company’s use of the Service.
1.6 “Service(s)” shall mean the provision of access via the Internet to IBM Notes and MasterFile software and databases, applicable MasterFile proprietary technology (including, but not limited to, hardware, software, documents, processes, algorithms, user interfaces, and know how) and services made available by providing the Service to Company and other associated services which are developed, operated, and maintained by MasterFile and provided through one of MasterFile’s Hosting Providers, (“Provider”), which Company understands means a third party entity providing the Service(s).
1.7 “MasterFile Intellectual Property” shall mean any of MasterFile’s patents and applications therefore, copyrights, trademarks, service marks, trade names, domain name rights, and other trade secret rights, and all other intellectual property rights.
1.8 “Term” means the Initial Term and each renewal term, collectively.
1.9 “User(s)” shall mean Company’s employees, consultants, contractors or agents authorized by the License Administrator to use the Service.
2. License Grants:
Subject to the terms and conditions of this Agreement, MasterFile hereby grants Company and its Users a nonexclusive, revocable, non-transferable, non-sub-licensable right to use the Service for the Term of this Agreement, solely for Company’s own internal business purposes. All rights not expressly granted to Company are reserved by MasterFile and its licensors. Company shall upgrade to the current version of the Services within ten (10) days of MasterFile’s release of such new version. The Services will be deemed accepted by Company on the date MasterFile ships the license key, ID files, or password to use the Services and Company will be obligated to pay the fees as set forth in this Agreement even if Company does not use the Services. “Third-Party Software” means certain software MasterFile licenses from third parties and provides to Company with or within the Service. Certain Third-Party Software is subject to terms and conditions other than those in the Agreement. Company may view the relevant licenses and/or notices for such Third-Party Software as provided in the text files of the Service. Company agrees to comply with terms and conditions contained in such licenses for the relevant Third-Party Software.
Company shall not, directly or indirectly, (i) sublicense, resell, rent, lease, distribute, or otherwise transfer rights or usage to the Service for any purpose including timesharing or service bureau purposes; (ii) create Internet links to the Service, (iii) “frame”, “fork” or “mirror” any part of the Service on any other device; (iv) reverse engineer the Service, or any component thereof, or the Portal or access the Service or copy any ideas, features, functions or graphics of the Service for any purpose other than what is expressly authorized in this Agreement, (v) conduct automated functionality tests or load tests on the Services, (vi) attempt to gain access to data that is not Company’s Data, or use a disproportionate amount of the Services that interrupts or degrades the Services. If Company does any of the foregoing, MasterFile shall have the right to terminate or suspend Company’s account and access to the Services without any refund or credit until Company corrects such violation to MasterFile’s reasonable satisfaction. Company may not permit any of its affiliates or subsidiaries or any individual that is not a User to use the Service under Company’s subscription.
4. Company’s Responsibilities and Data:
4.1 User Accounts:
Company shall designate a License Administrator and notify MasterFile of the identity and contact information for said License Administrator. The License Administrator may add Users to Company’s subscription to the Service by placing an order with MasterFile. Company is responsible for all activity occurring under Company’s User’s accounts. Company shall notify MasterFile immediately of any unauthorized use of any password, account, copying or access to the Service.
4.2 Company’s Data:
MasterFile does not own any of the Company’s data. Company is solely responsible for the accuracy, integrity, and legality of Company’s Data.
COMPANY HEREBY RELEASES MASTERFILE FROM ANY LIABILITY FOR LOSS OF DATA TO THE EXTENT THAT THE DATA HAS CHANGED SINCE THE TIME THAT DATA WAS BACKED UP AS PART OF THE SERVICE. Notwithstanding anything to the contrary in this Agreement, MasterFile shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Company’s Data. It shall be a material breach of this Agreement and grounds for immediate termination of Company, without an opportunity for cure, to use or allow the use by any party of the goods or services provided under this Agreement for any tortuous or unlawful purposes, including without limitation the following: send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver’s license or personal identification numbers or account numbers on or to the Service. Company represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Company’s Data uploaded or submitted to the Service and its performance of its obligations under this Agreement. Company will indemnify, defend and hold MasterFile harmless from any claims, losses, including reasonable attorneys’ fees and court costs, causes of action, claims or judgments arising out of or related to Company’s breach of this Section 4.2.
4.3 Company’s MasterFile Data Storage:
The maximum disk storage space provided to Company at no additional charge is 1GB per User which is aggregated. If the amount of disk storage required exceeds these limits, Company will be charged MasterFile’s then-current storage fees for the next available storage level as posted on its website.
4.4 Company’s e-mail Data Storage:
The maximum disk storage space provided to Company at no additional charge is 2GB per User for e-mail. If the amount of disk storage required exceeds these limits, Company will be charged MasterFile’s then-current storage fees for the next available e-mail storage level as posted on its website.
4.5 Company’s Support Entitlement:
The maximum support hours provided to Company at no additional charge for hosting and/or Domino/Lotus Notes administration, excluding MasterFile technical support, is 1.5 hours per user, per month, which is aggregated, and will be provided by Provider. Support time does not roll over and expires at the end of each calendar month. Company may also purchase additionally support time blocks. If the amount of Support exceeds these limits, Company will be charged MasterFile’s then current hourly support rates. Support hours are limited to Company-initiated requests. No MasterFile-initiated administration is bundled with this contract whatsoever, and MasterFile hereby disclaims all responsibility for administration which is not explicitly requested by Company in writing to MasterFile via e-mail to firstname.lastname@example.org, with Company’s receipt of auto-response message and ticket number assignment being Company’s confirmation of MasterFile’s message receipt.
4.6 24×7 Support Billing:
Excluding HTTP/NotesRPC downtime repairs which are included free of charge, all other 24×7 support incidents shall be billed hourly, including but not limited to requests for database recovery.
5. Intellectual Property Ownership:
MasterFile and its licensors own all right, title and interest to the MasterFile Intellectual Property, the Service, the Portal and any modifications thereto, and any modifications, ideas, or recommendations provided by Company. This Agreement does not convey or transfer any ownership rights in the Service, or MasterFile Intellectual Property. The MasterFile name, logo, and trade names are trademarks of MasterFile and no right is granted to use them except as expressly granted herein.
6. Payment Terms:
Company shall pay all fees associated with providing the Service. The initial charges shall equal the total number of Users at the time of signing up multiplied by the per User fee in effect at the time of ordering the Service. Company shall pay for all User fees ordered for an entire Term, whether or not all Users use the Service. Company shall make future fee payments for renewal annually or quarterly, consistent with the Initial Term. Company must provide MasterFile with a valid credit card or alternative payment form prior to receiving the Service. Company shall make fee payments for added Users during any Term of this Agreement. All fees paid to MasterFile are non-refundable. Additional User fees shall be assessed at the then current rate and, if added in the middle of a billing cycle, charged for a full cycle. MasterFile reserves the right to modify its fees upon thirty (30) day prior written notice which may be provided by e-mail. MasterFile will automatically bill Company’s credit card or alternative payment form in the billing frequency established by the length of Company’s Initial Term. The renewal charge will be equal to the number of Users multiplied by the then current per User fee.
Company agrees to provide MasterFile with complete and accurate billing and contact information. If invoiced by MasterFile, payments for such invoices are due net 30 days. MasterFile may terminate the Service if the billing or contact information is false, fraudulent or invalid. Company will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon MasterFile’s net income.
MasterFile may terminate this Agreement and/or Company’s access to the Service and Company’s Data for Company’s non-payment of any fees that are delinquent by thirty (30) days or more (whether under this Agreement or a separate agreement). If MasterFile terminates this Agreement for such non-payment of fees, MasterFile has no obligation to retain any of Company’s Data which may be irretrievably deleted if Company has not requested such Company’s Data from MasterFile within thirty (30) days of the effective date of termination pursuant to Section 7.1 below.
Company agrees that MasterFile may charge unpaid fees to Company’s credit card or otherwise bill Company for unpaid fees. MasterFile shall be entitled to reimbursement of all reasonable collection costs incurred as a result of unpaid balances.
6.3 Records Retention:
Company shall maintain accurate records necessary to verify the number of Users. Upon MasterFile’s written request, Company shall provide MasterFile with such records within ten (10) days. If Company has more Users than Company has paid for, Company shall immediately pay MasterFile the applicable fees for such additional Users, in addition to any costs incurred by MasterFile associated with reviewing such records.
6.4 Backup of Data:
Company shall have the right to receive two (2) recoveries of Company’s Data from backup per calendar year free of charge. Additional recoveries are available for an additional charge at MasterFile’s then-current rate for such backup services, which rate can be ascertained by contacting a MasterFile sales representative.
7. Term and Termination:
This Agreement shall be effective as of the Effective Date. The Initial Term will be for one (1) year and shall commence on the Effective Date. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one (1) year, if the Initial Term is greater than one (1) year) at MasterFile’s then current fees. In case of Users who are authorized and added after the beginning of the Initial Term, the Term of their usage of the Service shall be coterminous with the preexisting Term. Upon termination or expiration of this Agreement MasterFile will make available to Company, upon Company’s request, Company’s Data only for the thirty (30) day period immediately following the effective date of termination or expiration, provided that Company has paid all fees owed to MasterFile (whether under this Agreement or a separate agreement).
Company may terminate this Agreement or reduce its number of Users at the end of each Term by notifying MasterFile in writing at least ten (10) business days prior to the end of the then-current Term. MasterFile may terminate this Agreement without cause or reduce the number of Users at any time by notifying Company in writing at least thirty (30) days prior to such termination. MasterFile may terminate Company’s use of the Service if, in MasterFile’s sole discretion, Company breaches or otherwise fails to comply with this Agreement and Company has not cured such breach within thirty (30) days of MasterFile’s notice specifying the alleged breach. MasterFile may terminate this Agreement and/or Company’s access to the Service and/or Company’s Data if Company’s non-payment of any fees owed to MasterFile that are delinquent by thirty (30) days or more. Company’s obligation to make a payment of any outstanding, unpaid fees and the terms of Sections 1, 3, 5, 7, 8 and 10-12 shall survive termination or expiration of this Agreement.
Company and MasterFile agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, non-public technical and business information (“Confidential Information”) for a period of five (5) years after the termination of this Agreement. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.
9. Representations & Warranties:
MasterFile represents and warrants that it will provide the Service in a manner consistent with general industry standards, and that the Service will perform substantially in accordance with any documentation provided by MasterFile. If any portion of the Service (except for third party software) is held to infringe any third party intellectual property rights, then MasterFile will, at its expense and option: (i) obtain the right for Company to continue to use the Service; (ii) modify the software so that it is noninfringing; or (iii) replace the infringing component with a noninfringing component.
10. Disclaimer of Warranties:
10.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE ARE PROVIDED TO COMPANY STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MASTERFILE AND ITS HOSTING PARTNERS OR LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) THE SERVICE WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MASTERFILE’S SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND MASTERFILE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
10.2 Company further understands and agrees that the use of, or connection to, the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to Customer’s computer systems, networks and any and all information stored therein. Any information transmitted and received through the Internet cannot be expected to remain confidential and Provider cannot and will not guarantee the privacy, security, authenticity, and non-corruption of any information so transmitted, or stored in any system connected to the Internet. Provider shall not be responsible for any adverse consequences whatsoever of Customer’s connection to or use of the Internet, and Provider shall not be responsible for any use of Customer’s Internet connection for violation of any law, rule or regulation or any violation of the intellectual property rights of another. MASTERFILE EXERCISES NO CONTROL WHATSOEVER OVER THE CONTENTS OF ANY INFORMATION PASSING THROUGH THE INTERNET AND CUSTOMER AGREES AND FULLY UNDERSTANDS THERE IS NO GUARANTEE OF END-TO-END BANDWIDTH ON THE INTERNET.
11. Force Majeure, Limitation of Liability:
11.1 Force Majeure:
Except for the payment of fees, neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control.
11.2 Disclaimer of Consequential Damages:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MASTERFILE BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR MASTERFILE’S PERFORMANCE INCLUDING WITHOUT LIMITATION (A) THE SERVICES, (B) ANY INTERRUPTION OF USE OF THE SERVICE OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF COMPANY DATA, EVEN IF MASTERFILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Limitation on All Damages:
IN NO EVENT SHALL MASTERFILE’S LIABILITY HEREUNDER FOR CLAIMS IN THE AGGREGATE, EXCEED TERMINATION OF THE AGREEMENT BY COMPANY WHICH COMPANY UNDESTANDS AND AGREES SHALL BE ITS SOLE, ONLY AND EXCLUSIVE REMEDY FOR ANY AND ALL DAMAGES OR INJURY.
Company agrees and certifies that neither the Service nor any other technical data received from MasterFile, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which Company rightfully obtained access to the Service. Except as expressly provided herein, Company may not assign its rights or delegate its obligations under this Agreement, without the prior written consent of MasterFile. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal Canadian laws applicable therein, excluding its conflicts of law provisions, and Company and MasterFile agree to submit to the personal and exclusive jurisdiction of the courts located in Vancouver, British Columbia, Canada. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. This Agreement and the documents referenced in this Agreement constitute the entire agreement between Company and MasterFile relating to its subject matter and all terms herein and supercedes all prior or contemporaneous agreements or understandings. Notices regarding this Agreement shall be in writing and addressed to Company at the address Company provides, or, in the case of MasterFile, when addressed to MasterFile Software North America Inc., 152 -11782 River Road, Richmond, BC, Canada V6X 1Z7. Notices regarding the Service in general may be given by electronic mail to Company’s e-mail address on record with MasterFile and such notice shall be deemed to have been delivered twelve (12) hours after sending. No other terms and conditions shall apply, including any terms or conditions contained in any purchase order, request for quote (RFQ), bid proposal, response hereto, or other operational form of Company or Company’s agent which are in addition to or different than the terms and conditions of this Agreement contained herein. Any of Company’s terms and conditions which are different from or in addition to those contained herein are hereby objected to and shall be of no effect unless specifically agreed to in writing by an authorized representative of MasterFile. Delivery of the Services or other performance by MasterFile with respect to the Services shall not constitute MasterFile’s acceptance of any additional or different terms and conditions.