1. FEES AND PAYMENT
1.1. NETDIGIX will provide the Client with an itemized invoice for each month or for such other shorter or longer period as NETDIGIX may require from time to time, by email, regular postal mail, or facsimile, and the Client will make payment in accordance with this section 1.
1.2. All invoices rendered by NETDIGIX are due upon receipt by the Client. The Client hereby authorizes NETDIGIX to charge the credit card provided by the Client upon entering into this Agreement or as advised by the Client from time to time, for all amounts payable to NETDIGIX under this Agreement upon transmission of invoice to the Client.
1.3. Invoices delivered by email or by facsimile will be deemed to be received by the Client upon transmission by NETDIGIX. Invoices delivered by regular postal mail will be deemed to be received by the Client on the second business day following the date of mailing by NETDIGIX.
1.4. Title to any hardware or software delivered or provided by NETDIGIX under this Agreement will remain with NETDIGIX until payment in full has been received by NETDIGIX for such hardware or software. Notwithstanding sections 1.1. and 1.2., all payments for hardware or software delivered or provided by NETDIGIX will become due and payable upon delivery to the Client.
1.5. If payment in full is not received by NETDIGIX within 30 calendar days of receipt by the Client of any invoice, interest of 19.50% per annum, calculated monthly not in advance, will accrue on the outstanding balance on the 31st calendar day from the date of receipt of the invoice, until full payment of all outstanding balance has been received. Partial payment of outstanding balance will first apply toward the interest owing thereunder.
1.6. Without limiting the generality of the foregoing, NETDIGIX may suspend or terminate any and all of the Services without notice to the Client, if the Client, on ONE or more occasions, fails to pay the invoice within 30 days of receipt.
2. NETDIGIX’S PERSONNEL
2.1. NETDIGIX may, in its sole discretion, employ the services of qualified sub-contractors and third-party service providers to provide or deliver any portion or component of the Services.
2.2. NETDIGIX may, in its sole discretion, add or remove any employee, sub-contractors, or third-party service providers assigned to the Services by NETDIGIX.
2.3. The Client will not contract with, attempt to contract with, or otherwise employ the services of any sub-contractors or employees of NETDIGIX, directly, without the express written consent of NETDIGIX while this Agreement is in force and for eighteen (18) months following termination of this Agreement.
3. PROJECT MANAGEMENT
If applicable, each party will appoint a Project Manager who will co-ordinate that party’s activities related to this contract.
4. ADDITIONS AND MODIFICATIONS
4.1. From time to time, the Client may order additional services not included in the existing Statement of Work (the “Additional Services”).
4.2 Upon acceptance by the Client of NETDIGIX’s estimates of the Additional Services, whether by web-based click-wrap acceptance, email acceptance or other modes of communication of such acceptance, NETDIGIX will issue an invoice for the Additional Services. The Client hereby authorizes NETDIGIX to process payment in accordance with “Part 1. Fees and Payment” for the amount invoiced for the Additional Services.
5. USER DAMAGES AND PROHIBITED USES
5.1. The Client acknowledges and agrees that:
(a) the Client will be liable for damages caused by the Client’s incorrect, negligent, or erroneous use of any software, hardware, data or other property of the Client (the “User Damage”);
(b) the Client will be liable for damages caused by any act of God or the public enemy, war, riot, embargo, fire, explosion, sabotage, flood, sewer/drain backup, or sprinkler leakage (“Extraordinary Damage”) to any software, hardware, data or other property of the Client;
(c) without limiting generality of the foregoing, the Client will be liable for any and all damages to any software, hardware, data or other property of the Client for which the Client has an existing insurance plan covering such damages (the “Insured Damage”);
(d) the correction or repair of the User Damage, the Extraordinary Damage, or the Insured Damage, will be excluded from, and will not form a part of, any existing Statement of Work; and
(e) if requested by the Client, NETDIGIX will correct or repair the User Damage, the Extraordinary Damage, or the Insured Damage and the Client will pay NETDIGIX for the time spent and costs incurred by NETDIGIX to correct or repair the User Damage at the rate of $125.00 per hour.
5.2. Notwithstanding section 5.1. above, NETDIGIX may choose, in its sole discretion, to correct or repair the User Damage as part of an existing Statement of Work.
5.3. The Client may not use the NETDIGIX network or services in any way that adversely affects other clients of NETDIGIX. This includes but is not limited to:
(a) gaining or attempting to gain unauthorized access to servers or services. Such attempts include: “Phishing” (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, probing, monitoring or testing for system or network vulnerabilities;
(b) introducing viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, packet bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(c) intentionally omitting, deleting, forging or misrepresenting transmission information, including headers, return addressing information and IP addresses;
(d) engaging in any of the foregoing activities using the service of another provider but channeling such activities through a NETDIGIX account or re-mailer or using a NETDIGIX account as a mail drop for responses to Unsolicited Commercial E mail (“UCE”) or hosting a website that is advertised via UCE or otherwise requiring return transit through NETDIGIX’s internet backbone;
(e) using IP addresses which were not assigned by NETDIGIX; or
(f) running Internet Relay Chat (“IRC”) servers, bots or clients (Please note that busy or poorly scripted online chat systems, bulletin boards and other resource intensive applications may not be suitable for shared hosting services and can adversely affect the service of other clients of NETDIGIX. To avoid problems please consult with a NETDIGIX sales representative before installing these kinds of applications.)
5.4. The Client acknowledges that to facilitate efficient server management, inventory and related activities NETDIGIX’s servers may include a NETDIGIX administrative account and password and/or services related to systems management, including but not limited to monitoring and backup agents. All reasonable precautions will be taken by NETDIGIX to maintain the security of these tools and the privacy of client data.
5.5. The Client will not tamper, hinder, delete or in any way change the functioning of these tools. If administrative access is not available, the Client has two (2) business days after receiving a demand from NETDIGIX via phone or email to supply or facilitate administrative access to the machine. If administrative access is not restored by the Client within two (2) business days of receipt of NETDIGIX’s demand, NETDIGIX may suspend the Services without further notice.
5.6. The Client will not upload, post or otherwise make available adult-related content including adult-oriented images, text and links to shared hosting plans.
5.7. In addition to the above regular restrictions on content, the Client may NOT host the following forms of content or functionality on the LVPS or WVPS plans:
(a) Adult pictures, video or other pornographic media
(b) Music, audio, or video files stored for the purpose of sale or commercial re-distribution
(c) Server backups in excess of 50 GB
(d) Running an ISO or software package mirror
5.8. NETDIGIX, in its sole discretion, reserves the right to monitor usage of Unlimited VPS plans, and restrict or prohibit any excessive usages not otherwise specified in this Agreement.
5.9. The Client will not host or otherwise link to content that they are not authorized to distribute under copyright law, including but not limited to any sort of pirated software, music, movies, or e-books. This includes hosting or linking to resources that facilitate such activity, including but not limited to, websites, FTP sites, IRC channels, BitTorrent trackers, BitTorrent files, or BitTorrent swarms. Please note that NETDIGIX is also obliged by law to respond to DMCA takedown notices, and in response to such notices will remove or suspend related content pending the result of a counter notification.
5.10. The Client will not include content or have links to content that:
(a) is unlawful or is reasonably considered offensive by the web community;
(b) promotes injury or physical harm against any group or individual;
(c) promotes or teaches illegal activities
(d) exploits or depicts children in a negative/sexual way;
(e) infringes on copyright, patents, trademarks, trade secrets, or other intellectual property including pirated computer programs, cracker utilities, “warez” and software serial numbers or registration codes;
(f) violates any law, statute, ordinance or regulation governing the Client’s business or activities, including without limitation the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, trade in firearms, privacy, data transfer and telecommunications.
6. PROPERTY RIGHTS
6.1. All work products, including without limitation reports, data, designs, summaries, background data, functional and technical specifications, code, and programming or instructional documentation, produced or authored by NETDIGIX, its employees or sub-contractors in the performance of or in connection with any Services (collectively, the “Works”), will be the property of NETDIGIX, save and except any information or data provided to NETDIGIX by the Client.
6.2. The Client will provide all assistance reasonably required to perfect the rights of NETDIGIX in the Works hereunder.
7. NETDIGIX COVENANTS
7.1. NETDIGIX will use commercially reasonable efforts to keep confidential all information concerning the Client and its businesses and affairs, and the Services, including without limitation the terms of this Agreement and every Statement of Work.
8. NETDIGIX WARRANTIES
8.1. NETDIGIX will perform the Services in a competent, diligent, professional and careful manner, consistent with the industry standards for such services.
9. SOFTWARE LICENCE AGREEMENTS
9.1. The Client will abide by the “Terms and Conditions regarding use of Microsoft software” and any and all appropriate software license agreements for all other software that are obtained, used, or otherwise accessed, by NETDIGIX.
10.1. The Client will at its expense defend, indemnify and hold harmless NETDIGIX and its directors, officers, employees, agents, successors and assigns from and against any and all Losses (as hereinafter defined) arising from or in connection with:
(a) breach by the Client of any provision of this Agreement or any Statement of Work;
(b) damage or injury to persons or property caused in whole or in part by any act or omission of NETDIGIX or any of its employees, representatives or sub-contractors to the extent that such damage or injury was incurred in connection with the provision of services by NETDIGIX to the Client; or
(c) without limiting the generality of section 10.1.(b), any claim (an “Infringement Claim”) made against the Client alleging infringement of any patent, copyright, trademark, licences, service mark, trade name, trade secret or other proprietary right arising from any service, system, software, product or other item provided to the Client by NETDIGIX.
10.2. If any service or deliverable that is part of the Services cannot be used or is interrupted due to an Infringement Claim, the Client will at its option and expense:
(a) arrange to replace the affected service or deliverable with a compatible, functionally equivalent and non-infringing service or deliverable;
(b) modify the affected service or deliverable to avoid the claim; or
(c) obtain a license for NETDIGIX to use the affected service or deliverable.
10.3. In the event that NETDIGIX has actual knowledge of infringement by the Client of any patent, copyright, trademark, licences, service mark, trade name, trade secret or other proprietary right arising from any service, system, software, product or other item, and NETDIGIX is required to disclose such act of infringement pursuant to law or any contracts to which NETDIGIX is a party, NETDIGIX will provide the Client with prompt notice thereof. Upon provision of notice to the Client, NETDIGIX may disclose the act of infringement by the Client to the appropriate authority or party if NETDIGIX believes that NETDIGIX is legally required to do so.
10.4. For purposes of this section 10, the term “Losses” includes all claims, actions, causes of action, expenses of investigation, costs (including without limitation legal fees and disbursements), liabilities, losses, damages, settlement amounts, judgments, taxes, interest and penalties of any kind.
11. LIMITATION OF LIABILITY
11.1. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT NETDIGIX OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SUB-CONTRACTORS OR AGENTS, WILL IN NO EVENT BE LIABLE TO THE CLIENT FOR:
(a) ANY ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES (INCLUDING LOST PROFITS), REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT OF THE PERFORMANCE OF SERVICES CONTEMPLATED HEREIN OR IN ANY WAY ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, TORTIOUS BEHAVIOR (INCLUDING STRICT LIABILITY), PATENT OR INTELLECTUAL PROPERTY MATTERS OR ANY OTHER LEGAL OR EQUITABLE THEORY; or
(b) ANY LOSS OF PROFITS, REVENUES, CUSTOMERS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOSS OF DATA, INTERRUPTION OF THE SERVICES, INHERENT HARDWARE DEFECTS, BUSINESS INTERRUPTION, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCURRED BY THE CLIENT HOWEVER CAUSED OR ARISING, EVEN IF NETDIGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SAME OR IF SAME WERE REASONABLY FORESEEABLE.
11.3. UNLESS OTHERWISE STATED IN THIS AGREEMENT, NETDIGIX MAKES NO WARRANTIES IMPLIED, EXPRESS, STATUTORY OR OTHERWISE AT LAW, OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
11.4. While NETDIGIX makes a reasonable effort to provide the Client with technologies, developments, and innovations (collectively “Technologies”), part of which may be licensed, or co-branded, from or by, third-party entities, NETDIGIX MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE QUALITY, ACCURACY, RELIABILITY, VALIDITY, OR CONTINUED EXISTENCE OF ANY OR ALL ASPECTS OF SUCH TECHNOLOGIES. MOREOVER, NETDIGIX SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR SUCH TECHNOLOGIES. FURTHERMORE, THE CLIENT WILL NOT HOLD NETDIGIX LIABLE IN ANY WAY FOR THE REVOCATION OF ANY LICENSE, WHICH HAS BEEN LICENSED TO NETDIGIX. THE USE OF THE TECHNOLOGIES OBTAINED FROM OR THROUGH NETDIGIX, OR ANY OTHER REFERRED THIRD PARTY, WHETHER DIRECTLY OR INDIRECTLY, IS AT THE SOLE RISK OF THE CLIENT.
11.5. EXCEPT WHERE NETDIGIX HAS EXPRESSLY AGREED IN WRITING TO THE CONTRARY, THE CLIENT IS SOLELY AND ENTIRELY RESPONSIBLE, AND NETDIGIX IS IN NO WAY RESPONSIBLE, FOR THE MANAGEMENT AND BACKUP OF ALL DATA OF THE CLIENT, AND ALL UPDATES, UPGRADES, AND PATCHES TO ANY SOFTWARE THAT THE CLIENT MAY USE IN CONNECTION WITH NETDIGIX SERVICES.
12.1. NETDIGIX may terminate this Agreement or any Statement of Work in whole or in part immediately upon providing notice in writing to the Client.
12.2. The Client may terminate this Agreement or any Statement of Work upon ONE month notice in writing or by email given by the Client to NETDIGIX, with the effective date of termination being the 31st day from the date NETDIGIX receives the notice of termination from the Client (the “Effective Date of Termination”), provided that the Client has paid to NETDIGIX all amount due and owing to the Effective Date of Termination.
12.3. NETDIGIX may, immediately upon written notice, terminate all or any part of this Agreement or any Statement of Work if:
(a) The Client materially or repeatedly breaches any provision of this Agreement or any Statement of Work;
(b) The work environment becomes unpleasant or unmanageable as declared by NETDIGIX in its sole discretion;
(c) a receiver is appointed to control the conduct of the business of the Client or the Client becomes bankrupt or insolvent or takes the benefit of any legislation in force for bankrupt or insolvent debtors; or
(d) proceedings are instituted for the winding-up or termination of the corporate existence of the Client;
(e) where you use or are reasonably suspected by NETDIGIX of using the services in a fraudulent or illegal manner;
12.4. Upon termination of this Agreement or Statement of Work:
(a) The Client will immediately pay NETDIGIX all outstanding amounts due to NETDIGIX under this Agreement.
(b) NETDIGIX will execute and deliver to the Client such assignments and transfers as the Client may direct, to transfer to the Client NETDIGIX’s interest in any product, license, or contractual right (including without limitation any item which is part of the Services) that NETDIGIX has acquired or created for purposes of meeting any of its obligations with respect to that Statement of Work.
(c) The Client will pay NETDIGIX for all work done by NETDIGIX at the request of the Client for assignments or transfers pursuant to this Section 12.4 at the prices specified in the Statement of Work, if any, and if there is no Statement of Work governing the fees for assets or transfers, otherwise at reasonable prices agreed by the parties.
(d) NETDIGIX will have no further liability to the Client with respect to that Statement of Work or Services or other matter thereunder (except to pay as set forth herein for any Services that are accepted and paid for by Client), except as expressly set forth herein.
(e) The Client will have no claim against NETDIGIX for damages arising from termination of this Agreement.
12.5. Termination of any particular Statement of Work will not of itself terminate this Agreement or any other Statement of Work.
12.6. NETDIGIX may exercise any one or more of its rights under this Section 12, which are not exclusive and are in addition to any other rights and remedies available to NETDIGIX at law or in equity.
13. PRIVACY AND PERSONAL INFORMATION
13.1. The parties acknowledge and agree that NETDIGIX and the Client are each responsible for complying with their respective obligations under applicable data and privacy protection laws and regulations (collectively “Privacy Laws”).
13.2. With respect to personal information about an identifiable individual that is transferred or otherwise made available to NETDIGIX by the Client or by any third party on behalf of the Client (“Personal Information”), the Client represents, warrants, and agrees that the Client has the authority and/or has obtained all necessary consents from the subject individuals as is required under applicable Privacy Laws to enable the Personal Information to be:
(a) transferred, disclosed, or otherwise made available to NETDIGIX, and
(b) processed, copied, altered, stored, deleted, transferred, or otherwise used by NETDIGIX for the purposes specified in this Agreement.
13.3. In the event that any transfer to or use of Personal Information by NETDIGIX constitutes or, in the reasonable opinion of NETDIGIX, is likely to constitute an infringement of applicable Privacy Laws, both parties shall use commercially reasonable efforts to agree to a non-infringing method of performing such activities with respect to such Personal Information.
13.4. The Client acknowledges that some of the Services under this Agreement will be provided by NETDIGIX in conjunction with its partners, and that some partners of NETDIGIX may need to collect and maintain Personal Information for the purposes of providing those Services. In such cases, the Client authorizes NETDIGIX to collect or transfer to its partners Personal Information to the extent such information is necessary or required for the provision of the Services by NETDIGIX or by its partners.
14. FORCE MAJEURE
14.1. Neither party will be responsible for any failure or delay in performance due to any act of God or the public enemy, war, riot, embargo, fire, explosion, sabotage, flood; strike, lockout or other labour disturbance; governmental, regulatory or judicial action, enactment, regulation, order or decree; or other circumstance (other than lack of funds) beyond such party’s control, which could not have been prevented by reasonable precautions and cannot reasonably be circumvented by that party (“Force Majeure Event”).
14.2. A party whose performance is prevented or delayed by a Force Majeure Event will:
(a) immediately notify the other party by telephone, describing the Force Majeure Event and its estimated duration;
(b) be excused from performance of the affected provisions of any Statement of Work or this Agreement for so long as the circumstances of the Force Majeure Event prevail;
(c) use commercially reasonable efforts to re-commence performance as soon as possible; and the time for performance of the terms of this Agreement or the Statement of Work so affected will be extended by a period of time equal to the duration of the Force Majeure Event.
15.1. Neither party has authority to assume or to create any obligation or responsibility on behalf of the other party. Nothing herein will be construed as implying a joint venture, agency, partnership, employment or other relationship between the parties, other than independent contractors.
15.2. This Agreement and every Statement of Work will be governed by and construed in accordance with the laws of British Columbia and of Canada applicable therein without regard to its conflict of laws rules.
15.3. The parties agree, in respect of any claim or legal proceedings for any purpose whatsoever, in connection with this Agreement, to elect the judicial district of Vancouver, in the Province of British Columbia.
15.4. This Agreement will be binding on and enure to the benefit of the parties and their respective successors and permitted assigns.
15.5. No waiver of any provision hereof will constitute a waiver of any other provision (whether or not similar) nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
15.6. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, oral or written. There are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as set forth herein.
15.7. If any provision of this Agreement or the application to any person of any provision is held to be invalid or unenforceable, the remainder of this Agreement or its application will not be affected.
15.8. Each provision hereof that provides for a limitation of liability or remedies, disclaimer of warranties, indemnification of a party, or exclusion of damages or other remedies, is severable and independent of any other provision and is intended to be enforced as such.
15.9. The headings of sections, subsections and attachments herein are for convenient reference only and will not affect construction or interpretation hereof. Words importing the singular include the plural and vice versa, and words importing gender include all genders.
15.10. Any internal conflict or inconsistency between the provisions of any Statement of Work and the remaining provisions hereof, or any conflict or inconsistency between the provisions of this Agreement or any Statement of Work and any proposal, quotation or tender document that preceded a Statement or Work, or any delivery slip, order confirmation or other document issued by the Client, will be resolved by giving precedence first to this Agreement and second to the Statement of Work.
15.11. Except as otherwise specified herein, any notice or demand required or permitted to be given to a party will be in writing and will be:
(a) delivered by prepaid courier; or
(b) sent by facsimile transmission, email, or similar method of recorded communication, charges prepaid,
and, if to the Client, at the Client’s then-current address, fax number, or email in NETDIGIX’s file, and if to NETDIGIX, at its then-current address, fax number, or email as set out under the “CONTACT US” page (http://www.netdigix.com/contact.php).
Any notice or demand delivered in accordance with the foregoing will be deemed received on the day of delivery if delivered, or upon transmission if transmitted by facsimile, email, or similar method of recorded communication.
15.12. The parties will execute and deliver such further and other documents and instruments and will do such further and other acts and things as may be necessary to give effect to the provisions hereof.
15.13. The parties agree that sections 1, 2, 4, 5, 6, 10, and 11 of this Agreement will survive the termination of this Agreement.