- This Master Services Contract for MyHosting.com Guru Services (this “Contract”) is between myhosting.com, a brand of SoftCom Inc. (“SoftCom”) and the Customer set forth hereunder (“Customer”) and entered into as of the date on which this Contract is signed by both parties (the “Effective Date”). SoftCom will provide to Customer the services specified in one or more myhosting.com Guru Services Statement(s) of Work (“SOW” or “SOW’s”, and the services contained within, the “Services”)) entered into between SoftCom and the Customer, from time to time, and available online at https://manage.myhosting.com after logging into Customer’s account for the Subscription ID (identified below). Services will be provisioned in accordance with the terms of the SOW’s (“Provisioning”), unless otherwise agreed to by the parties. SoftCom reserves the right to modify the Services, at no additional cost to Customer, with the objective of providing Customer with equal or enhanced Services. Any SOW’s, the Service Summary below, the Guru Service Level Agreement, and the Acceptable Use and Privacy Policies (as described in Section 5.2) are all incorporated into this contract by reference and contain terms essential to this Contract. SoftCom reserves the right to add applicable policies in connection with Contract and by using the Services, Customer agrees to such policies.
- Fees and Billing
- The “Billing Start Date” for this Contract is the Effective Date.
- Commencing upon the Billing Start Date, SoftCom shall invoice Customer as follows, for each Service: (a) Such one-time fees as are set forth hereunder; (b) In advance, a fee equal to the Monthly Minimum Charge, Quarterly Minimum Charge, or Annual Minimum Charge (as the case may be) set forth hereunder; and (c) Fees for additional services as provisioned by Customer throughout the Term, i.e. additional accounts, additional features, etc…
- Each invoice is due upon receipt. If SoftCom has not received payment within ten (10) days after the due date, interest may accrue on past due amounts at the rate of 1.0% per month (or 12 % per year), but in no event greater than the highest rate of interest allowed by law, calculated from the day such amount was due until the date that payment is received by SoftCom. SoftCom reserves the right to suspend the Services (of which it shall provide advance notice, which may be by email) until Customer pays all past due amounts. Customer shall reimburse SoftCom for all reasonable costs of collection. Customer will be responsible for any taxes, duties, fees or surcharges that are imposed or authorized by recognized regulatory and governmental entities, and shall pay to SoftCom or reimburse SoftCom for such amounts as are paid by SoftCom relating to the Services provided to Customer. All fees and remittances will be in U.S. Dollars (USD$).
The initial term (“Initial Term”) of this Contract shall commence on the Effective Date and shall continue for the “Contract Term” (set forth hereunder) from the Billing Start Date. At the end of the Initial Term, this Contract shall be renewed automatically for consecutive renewal terms of one (1) month (such renewal terms together with the Initial Term, the “Term”), unless terminated by either party (effective as of the end of the current term) by providing the other party written notice at least fifteen (15) days prior to the end of the applicable term delivered in accordance with Section 18, “Notices”. SoftCom may revise, at anytime with at least thirty (30) days prior written notice to the Customer, any or all rates, which will only become effective for the following Term.
Either party may terminate this Contract for cause upon written notice if the other party fails to cure any material breach of this Contract within thirty (30) days after receiving written notice of such breach; provided however that the period to cure a breach with respect to payment shall be ten (10) days. Further, in the case of a material breach that is incapable of being cured in SoftCom’s sole discretion, SoftCom may terminate this Contract immediately. Other than as may be provided elsewhere in this Contract, such termination shall be Customer’s sole and exclusive remedy in case of a material breach of this Contract by SoftCom. If Customer terminates this Contract without cause, or SoftCom terminates this Contract for cause in accordance with this Section, such termination will result in the Customer paying a liquidated damage fee, not a penalty fee, in the amount equal to the number of whole months and any partial months’ remaining in the current Term (those months remaining until the next anniversary date of the Contract) multiplied by the higher of either the Monthly Charge at the time of termination or the Minimum Monthly Charge set forth hereunder.
- Customer Obligations
During the term of this Contract, Customer shall have the following obligations, in addition to those set forth elsewhere in this Contract.
- Customer is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of all Services purchased from SoftCom, including but not limited to, obtaining any consent and/or acknowledgement from its employees and service providers (if applicable) in managing its Services. Customer acknowledges and agrees that SoftCom’s responsibilities and liability do not extend to the internal management of Customer’s Services and that SoftCom is merely a data-processor and does not control and is not responsible for the management or administration of Customer’s Services and/or its data.
- Customer acknowledges and agrees their continued use of the Services constitute their acceptance of the most current SoftCom Acceptable Use, Privacy Policies and Guru Services SLA located at www.myhosting.com/privacy-policy/aup.aspx, www.myhosting.com/privacy-policy/ and www.myhosting.com/privacy-policy/guru-service-sla.aspx respectively.
- Customer agrees that it shall not resell the Services or create or offer derivative versions of the Services either directly or through a third party, unless provided with explicit written consent by SoftCom.
- IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 5.1, 5.2 AND/OR SECTION 5.3, SOFTCOM SHALL INFORM CUSTOMER THEREOF AND RESERVES THE RIGHT TO IMMEDIATELY SUSPEND THE SERVICES UNTIL SUCH FAILURE IS REMEDIED. NOTWITHSTANDING THE FOREGOING, THE FAILURE OF CUSTOMER TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 5 MAY BE DEEMED A MATERIAL BREACH OF THIS CONTRACT.
- SoftCom warrants that the Services will conform to the description of the Services set forth in the SOW’s. In the event of a breach of the foregoing, as Customer’s sole and exclusive remedy, SoftCom will, at its expense, use best commercially reasonable efforts to ensure the Services conform to such description(s).
- SoftCom warrants that the Services will meet the requirements set forth in the Service Level Agreements (the “SLAs”), and as set forth on the myhosting.com website which SoftCom reserves the right to change in its sole discretion. The SLA will solely and exclusively govern the Customer’s remedy as it pertains to Service Levels.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, SOFTCOM MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OR NON-INFRINGEMENT.
The Services and all intellectual property rights relating to the Services are and shall remain the exclusive property of SoftCom and/or SoftCom’s subsidiaries, affiliates, partners and/or vendors, whichever is applicable.
- SoftCom and Customer both acknowledge that in the course of this Contract, each party may have access to the other’s Confidential Information. “Confidential Information,” as used in this Contract, means information not generally known to the public, in written, oral or any other form, which a party designates as being confidential or that, under the circumstances surrounding disclosure, should be clear that it is confidential.
- The obligations of this Section 8 shall not apply to Confidential Information that (i) was in the possession of, or was rightfully known by a receiving party, without an obligation to maintain its confidentiality, prior to the time of disclosure; (ii) is or becomes generally known to the public without violation of this Contract; or (iii) is obtained by a receiving party in good faith from a third party having the right to disclose it without an obligation of confidentiality.
- Each party agrees that during the Term of this Contract and for a period of two (2) years after the expiration of this Contract, it will not make any such Confidential Information available to any third party (other than its suppliers, partners and affiliates, who are bound by confidentiality obligations to such party at least as stringent as those provided herein, solely to provide the Services) and will not use the other’s Confidential Information for any purposes other than to exercise its rights and perform its obligations under this Contract. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Contract, and in any event each party shall exercise the same prudent practice in preserving this information as it does to preserve its own Confidential Information. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Contract pursuant to the order or requirement of a court or other governmental body, provided that the party required to make such disclosure gives prompt notice to the other party (where legally permissible) to enable it to contest such order or requirement.
- SoftCom hereby agrees that it has implemented commercially reasonable and industry standard procedures to: (1) ensure the security and confidentiality of Customer’s Confidential Information; (2) protect against any anticipated threats or hazards to the security or integrity of such information; and (3) protect against unauthorized access to or use of such information.
Customer agrees to defend, indemnify and hold harmless SoftCom, its officers, directors, employees, agents, contractors, or affiliates, from any claim, demands, liabilities, losses, costs (including reasonable attorney fees) due to Customer’s breach of this Contract and/or of any license related to the Services and of any punitive, exemplary or aggravated damages, damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Customers’ materials or facilities, including computer resources, web sites and any stored data, indirect consequential or special damages, contribution, indemnity or set off in respect of any claims against SoftCom or any goods or services not developed or provided by SoftCom, or any damages whatsoever relating to interruption, delays, errors or omissions.
- Limitation of Liability
EXCEPT REGARDING THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, IN NO EVENT WILL SOFTCOM BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT OR THE PERFORMANCE OR OPERATION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall SoftCom’s liability for any damages hereunder exceed the amounts paid by Customer to SoftCom during the twelve (12) month period preceding the causation of the damages.
You may assign this Contract in its entirety, but not in part, to your parent company, affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of your assets. Any other assignment shall be null and void, except with SoftCom’s prior written consent. SoftCom can assign this Contract or any part thereof without Customer’s consent. This Contract and all obligations shall be binding upon and inure to the benefit of the parties’ successors and lawful assignees.
- Governing Law
This Contract and any controversies arising out of or in relation with this Contract shall be governed by Ontario law, without giving effect to its principles of conflicts of law.
If for any reason a court of competent jurisdiction finds any provision of this Contract invalid or unenforceable, that provision of the Contract will be enforced to the maximum extent permissible and the other provisions of this Contract will remain in full force and effect.
The rights and obligations of SoftCom and Customer contained in this Section and in Section 8, “Confidentiality,” Section 9, “Indemnity,” and Section 10, “Limitation of Liability,” shall survive any expiration or termination of this Contract.
The waiver by either party of any default or breach of this Contract shall not constitute a waiver of any other or subsequent default or breach.
Modifications and amendments to this Contract shall be invalid, unless made in writing that is signed by duly authorized officers of each party hereto.
- Force Majeure
SoftCom shall not be liable for any failure or delay in its performance under this Contract due to causes beyond its reasonable control including, without limitation, Domain Name Server issues outside the direct control of SoftCom, instant messaging issues outside of the direct control of SoftCom, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages.
All notices required to be sent under this Contract must be in writing and shall be delivered in person or shall be sent to Customer at the address specified in the Coverage Selection Sheet and to SoftCom at the address below (or such other address as may be specified by either party to the other in accordance with this Section 18):
10 Bay Street, Suite 1610
Toronto, ON M5J 2R8 Canada
Attention: Legal Department
Notices shall be deemed to have been given upon (i) the date actually delivered in person, (ii) the date transmitted via fax with confirmation of receipt thereof (iii) the business day after the date sent by overnight courier or (iv) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
This Contract may be executed in one or more counterparts including scanned electronic copies and e-signature, which when taken together upon proper delivery shall constitute a single instrument.
- Press Release
Both Customer and SoftCom agree not to publicize the existence of this Agreement unless both parties provide written consent. If consent is provided, any public release of any information will not include any mention of financial terms.