WEBSITE DEVELOPMENT SERVICES
GENERAL TERMS AND CONDITIONS
SECTION 1. SERVICES
1.1 Website Design. The Developer agrees to design and develop a Website for the Customer in accordance with the specific terms and conditions set out in the Term Sheet.
1.2 Installation.The Developer agrees to install the Customer's Website on a server operated by the Customer or a third party identified by the Customer, unless the Customer has entered into a Web Hosting Agreement with the Developer.
1.3 Changes to Services or Specifications. The Customer may, at any time, deliver to the Developer a written request for a change in the Services or request the Developer to perform additional Services. The Developer will respond to any such request within a reasonable period of time and will advise the Customer in writing of any change to the cost and schedule for the delivery of Services. Upon written confirmation from the Customer that it accepts the changes to the cost and delivery schedule, the Developer will proceed with the change, at the adjusted price and terms. The Developer will have no obligation to implement any change in the Services unless such change is first agreed upon in writing by the Customer and the Developer.
1.4 Delays. If the schedule for delivery of Services is delayed as a result of a delay by the Customer in the performance of its responsibilities as set out in this Agreement, or as the result of any change in the Services to be provided, or as the result of any other factor which is beyond the reasonable control of the Developer, then the schedule for the delivery of those Services shall be extended for the period of time that the Services have been delayed as a result of such factor or events.
SECTION 2. COMPLETION, INSTALLATION AND ACCEPTANCE
2.1 Completion Date. The Developer will use commercially reasonable efforts to perform the Services on or before the completion date specified in the Term Sheet, but is not responsible for any delay in the completion of Services unless specifically provided for in Term Sheet.
2.2 Customer Responsibilities. The Customer shall:
(a) respond to the Developer's requests for approvals and information, and generally co-operate with the Developer on a timely basis;
(b) provide the Developer with timely and accurate information and documentation, as reasonably required by the Developer to perform the Services;
(c) make available to the Developer personnel familiar with the Customer's requirements and with the expertise necessary to permit the Developer to deliver the Services;
(d) provide a safe area for the Developer to perform any Services required to be performed at the Customer's site.
2.3 Compliance with Laws. The Customer agrees to comply with all applicable laws and regulations in connection with the design and development of its Website including laws relating to:
(a) Court ordered publication bans;
(b) restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting or exposing, obscene or threatening material, child pornography, or hate propaganda;
(c) restrictions on the use of trademarks or trade names, or any work which is protected by copyright, patent or other intellectual property laws;
(d) restrictions on the distribution and dissemination of unsolicited commercial electronic messages;
(e) restrictions on defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy. confidentiality, unfair competition and other situations which could generate liability; and
(f) export and import restrictions.
2.4 Developer may Refuse to Perform Services. The Developer may, in its discretion, refuse to perform or continue to perform Services if the Developer is of the opinion, acting reasonably, that the Customer is in violation of any of its obligations set out in sections 2.2 or 2.3 of this Agreement.
2.5 Responsibility for Website Content. The Customer is solely responsible for all Customer Materials and Content.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Developer. The Developer represents and warrants to the Customer that to the best of its knowledge and belief, the use of the Design Intellectual Property by the Customer in the manner intended will not infringe the intellectual property rights of any third party.
3.2 Representations and Warranties of the Customer. The Customer represents and warrants to the Developer that it is either the owner of or has the legal rights to use the Customer Materials and Content, and that their use by the Developer in the manner contemplated by this Agreement does not and will not infringe the intellectual property rights of any third party.
SECTION 4. CHARGES AND PAYMENT
4.1 Payment.In consideration of the Developer's performance of the Services, the Customer will pay the Fees to the Developer in the manner and upon the timing described in the Term Sheet.
4.2 Interest. Any amounts not paid when due shall accrue interest at the rate of 18% per annum.
4.3 Taxes.All Fees are exclusive of any applicable goods and services taxes, sales taxes or other similar taxes, the payment of which is, by the legislation imposing such taxes, an obligation of the Customer, which agrees to pay such taxes to the Developer.
4.4 Consequences of Non-Payment. If the Customer fails to make any payment when due, the Developer may suspend performance of Services until the past due payment is made.
SECTION 5. INTELLECTUAL PROPERTY RIGHTS
5.1 Customer Materials and Content. The Customer grants to the Developer, and the Developer accepts, a non-exclusive, royalty-free, world-wide licence to use the Customer Materials and Content as may be reasonably necessary or desirable in order for the Developer to provide the Services. The Developer acknowledges that itacquires no rights whatsoever to any Customer Materials and Content except as specifically granted in this Agreement.
5.2 Developer Intellectual Property. All title and beneficial ownership interests to all Developer Intellectual Property shall vest in and remain with the Developer, and the Customer shall not do any act which may compromise or diminish any such interest. The Developer grants to the Customer a non-exclusive, royalty-free license to use Developer Intellectual Property incorporated into the Services on the Customer's Website only. The Customer acknowledges that it acquires no rights whatsoever to Developer Intellectual Property except as specifically granted in this Agreement.
5.3 Limitations on Licences. For greater certainty, the licencees described in sections 5.1 and 5.2 acknowledge that they will not:
(a) provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use such licensed intellectual property for their own benefit or for the benefit of third parties;
(b) copy, reproduce or duplicate such licensed intellectual property, by any means or in any manner. except as specifically, provided in this Agreement or for reasonable backup purposes consistent with the grant of licence described above; or
(c) use such licensed intellectual property in any manner not contemplated by or consistent with the grant of licence described above.
SECTION 6. LIMITED WARRANTY
6.1 Limited Warranty. The Developer warrants to the Customer that for a period of ninety (90) days from the date on which the Developer notifies the Customer that the Customer's Website is operational, the Customer's Website will perform in substantial accordance with the description in the Term Sheet. If, within that time, the Customer notifies the Developer that its Website does not perform in substantial accordance with the description in the Term Sheet, the Developer shall, at its option, either correct any deficiency in the performance of the Services or the Website, or compensate the Customer by refunding any payment made by it for deficient Services, up to a maximum amount equal to the actual sum paid by the Customer to the Developer under this Agreement.
6.2 Disclaimer. Except as expressly set out in section 6.1, the Developer makes no representations, warranties or conditions, express, statutory or implied, with respect to the Customer's Website or the Services. The Developer expressly disclaims all other representations, warranties or conditions, including any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose. The Developer does not warrant that the Customer's Website will meet the Customer's requirements or that it will function uninterrupted, error free or that all defects in the code underlying the Customer's Website will be corrected. The Developer makes no representation or warranty regarding accessibility to, or the privacy or security of, any of the Customer's information, files or data, or any Customer Materials or Content. The Customer assumes the entire risk as to the results and performance of the Customer's Website. The Customer acknowledges that it has not relied on any representation by the Developer as to the suitability of any particular Services for any particular purpose. The Developer does not represent or warrant that the Customer's Website will be capable of achieving any particular result or results in the Customer's business or operations. Except as expressly stated otherwise in this Agreement, the Customer's Website and all Services will be provided and licensed on an "as is" basis without warranty or representation of any kind.
6.3 No Liability for Damages. In no event whatsoever will the Developer, its directors, officers, employees. agents, contractors or affiliates be liable for:
(a) punitive, exemplary or aggravated damages;
(b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of any files, data, information, Customer Materials or Content, computer resources or stored data;
(c) indirect, consequential or special damages of any kind;
(d) contribution, indemnity or set-off in respect of any claims against the Customer by any third party;
(e) any damages whatsoever related to any hardware, software, goods or services not developed or provided by the Developer; or
(f) any damages whatsoever relating to interruption, delays, errors or omissions.
6.4 Limitation of Liability. Notwithstanding any other provision of this Agreement, the maximum total liability of the Developer, and its suppliers, directors, officers, employees, agents, representatives, shareholders and employees, for any claim whatsoever, under any circumstances, regardless of the cause of action and including claims for breach of contract, tort, negligence or otherwise, and the Customer's sole remedy for all such claims, shall be strictly limited to an award for direct, provable damages not to exceed the amount actually paid by the Customer to the Developer under this Agreement.
SECTION 7. INDEMNIFICATION
7.1 Indemnity by the Customer. The Customer agrees to defend, indemnify and hold harmless the Developer, its directors, officers, employees, agents, contractors and affiliates from any loss, damage or liability, including reasonable legal costs, that the Developer may incur as a result of or in connection with:
(a) the Customer's use of the Customer's Website in any manner not contemplated by the Term Sheet;
(b) the Customer's engagement in any activity that is illegal, offensive or immoral or that infringes on the rights of privacy or publicity, or any intellectual or proprietary rights of any third party;
(c) any valid claim that the Customer's use of any Customer Materials or Content infringes the intellectual property rights of any third party;
(d) any claim or suit made by any client or customer of the Customer; or
(e) any breach by the Customer of the Customer's obligations under this Agreement.
7.2 Indemnity by the Developer. The Developer agrees to defend, indemnify and hold the Customer, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including reasonable legal costs, that the Customer may incur as a result of or in connection with any valid claim that any Design Intellectual Property infringes the intellectual property rights of any third party (for which the Developer agrees it will use commercially reasonable efforts to replace any such Design Intellectual Property with other original intellectual property that has similar functionality).
SECTION 8. CONFIDENTIALITY AND PUBLICITY
8.1 Confidentiality.Except for the specific rights granted by this Agreement, neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other shall use the same degree of care to protect the confidentiality of such Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees and agents on a "need-to-know" basis and that all such employees and agents have agreed in writing not to disclose or use Confidential Information. Within fifteen (15) days of the request of the disclosing party, and in its sole discretion, the receiving party shall either return to the disclosing party or destroy originals and copies of any Confidential Information and all information, records and materials developed from them by the receiving party. The obligations contained in this section shall continue for a period of five (5) years after expiration or termination of this Agreement.
8.2 Publicity and Promotion. Each party shall be permitted to disclose that the other is a client of such party, but the specific terms of this Agreement shall remain confidential.
8.3 Use of Customer's Name and Logo. The Developer shall be entitled to use the Customer's business name and logo on the Developer's Website to identify the Customer as a customer of the Developer, and the Developer shall be permitted to hotlink from the Developer's Website to the Customer's website for the purposes of providing an example of the Developer's services.
SECTION 9. TERMINATION
9.2 Termination. Without limiting any other rights or remedies available to either party at law or in equity, either party has the right to terminate this Agreement immediately and without notice, if:
(a) the other party is in breach or default of any of its obligations under this Agreement and such breach or default continues without being rectified for five (5) Business Days following delivery of written notice specifying such breach or default with reasonable particularity;
(b) the other party enters into bankruptcy or insolvency proceedings, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, or a petition is filed against the other party under a bankruptcy law or any other law for the relief of debtors, or a receiver, trustee or similar person is appointed with respect to the other party's assets;
(c) the other party ceases to carry on its business; or
(d) any payment has not been made when due under this Agreement and such non-payment continues for five (5) Business Days.
SECTION 10. GENERAL PROVISIONS
10.1 Survival. The termination of expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration.
10.2 Assignment.This Agreement may not be assigned by either party without the prior written consent of the other party.
10.3 Notice. Any notice required or permitted to be given to either party under this Agreement shall be sufficiently given if by personal service or by sending it by prepaid registered mail, courier service, facsimile transmission or email to that party's address for service as set out in the Term Sheet. Any notice sent by registered mail according to the provisions of this section shall be deemed to have been received on the fifth Business Day following the date of mailing, but no day during which there shall be a strike or other occurrence which shall interfere with normal mail services shall be considered a Business Day. Any notice sent by courier service shall be deemed to be deliveredone day after deposit for delivery with a reliable independent overnight delivery service which shall retain a written record of such delivery. Any notice sent by facsimile transmission or email shall be deemed to have been received on the next day following the date of transmission. Either party may give written notice of change of address in the same manner, after which any further notices shall be given to that party at its changed address.
10.4 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Each party submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Agreement.
10.5 Binding Effect. This Agreement shall enure to the benefit of, and be binding upon, the parties and their respective successors, affiliates and permitted assigns.
SECTION 11. INTERPRETATION
11.1 Definitions. In this Agreement, unless the context otherwise requires, the following terms have the following meanings:
"Agreement" means the Term Sheet, these Terms and Conditions, and all written agreements signed by both Parties which amend, supplement or confirm this Agreement.
"Business Day" means any day, other than Saturday, Sunday or any statutory holiday in the Province of Ontario.
"Confidential Information" means any business, marketing, technical, scientific or other information disclosed by a party and relating to such party's operations, products, designs, plans, strategy, customers, business opportunities, finances research development, know-how, trade secrets or employees, and, at the time of disclosure, is designated as confidential is disclosed in circumstances of confidence or would be understood by the receiving party, exercising reasonable business judgment, to be confidential.
"Content" means Customer Materials that are used, displayed or otherwise made available to internet users on the Website.
"Customer" means the party entering into this Agreement with the Developer.
"Customer Intellectual Property" has the meaning attributed to such term in section 6.2.
"Customer Materials" means all information, production media, content, documentation, data, images, text. software, web pages. drawings, icons, photographs, pictures, charts, artwork, trademarks, trade names, logos, sound, graphics, video, files and other material, however stored and/or encoded, that is supplied by the Customer to the Developer or posted on, received by or created through the Customer's Website, even if transmitted, posted, received or created by someone other than the Customer.
"Developer" means Visual Odyssey Inc.
"Developer Intellectual Property" means all intellectual property, including copyright, of any form, including the source code, object code and documentation related to the Customer's Website, discoveries (patented or otherwise), software, data (hard copies and machine readable) or processes, conceived, designed, written, produced, developed or reduced to practice in the course of the performance of the Services.
"Fees" means all amounts payable by the Customer to the Developer for Services under this Agreement.
"Services" means the services to be provided to the Customer by the Developer as described in this Agreement.
"Website" means a series of interconnected web pages intended to be accessible by internet users with a web browser.
11.2 Headings and Table of Contents. The inclusion in this Agreement of headings, subheadings and table of contents is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
11.3 Extended Meanings In this Agreement, unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. The term "including" means "including without limitation" and the term "include" means "include without limitation".
11.4 Currency. In this Agreement all monetary amounts are stated and payable in Canadian currency.
11.5 Severability. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision.
11.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties and sets out all the covenants, promises, warranties, representations, conditions, understandings and agreements between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no covenants, promises, warranties, representations, conditions, understandings or other agreements, oral or written, express, implied or collateral between the parties in connection with the subject matter of this Agreement except as specifically set out in this Agreement.
11.7 Amendments and Waivers. No amendment to this Agreement shall be valid or binding unless set out in writing and duly executed by both parties. No waiver of any breach of any provision of this Agreement shall be effective or binding unless made in writing and signed by the party purporting to give such waiver and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived.
WEB HOSTING SERVICES
GENERAL TERMS AND CONDITIONS
SECTION 1. SERVICES
1.1 Web Hosting Services. The Provider agrees to host the Website on the Provider's server and to provide the web hosting Service, in accordance with the specific terms and conditions set out in the Term Sheet.
1.2 Domain Name. The Website will reside within its own domain and shall have a URL address based upon that domain. The domain and URL address shall be and remain the property of the domain name granting authority, and the Customer's only right shall be to use the name for the duration and upon the terms and conditions set out in these General Terms and Conditions.
1.3 Provider's Obligations. The Provider's responsibility with respect to hosting the Website is strictly limited to the provision of storage capacity for the Website on the Provider's server.
1.4 Access to Website. The Customer shall provide all telephone, computer, hardware, software and equipment necessary to access the Website.
1.5 Use of Services. The Customer will not, directly or indirectly, use the Website to send, submit, post, receive, store, link to, advertise or otherwise make available or facilitate the transmission of any materials that are abusive, obscene, profane, discriminatory, sexually explicit, threatening, or contain expressions of bigotry, racism or hate. The Customer will not use the Website to conduct any business or activity or solicit the performance of any activity that is libelous or prohibited by law. Any violation of this provision may result in termination of the Services with or without notice, at the sole discretion of the Provider based upon the severity of the violation.
1.6 Compliance with Laws. The Customer will comply with all applicable laws including export/import laws and laws relating to obscenity, copyright, trade mark, trade secret, libel, slander and defamation. IT IS THE CUSTOMER'S SOLE RESPONSIBILITY TO BECOME FAMILIAR WITH AND TO COMPLY WITH ALL LAWS THAT MIGHT RELATE TO THE WEBSITE.
SECTION 2. TERM AND TERMINATION
2.1 Term. This Agreement shall be in effect for an Initial Term as set out in the Term Sheet and, unless terminated as provided below, shall be automatically renewed for successive Renewal Periods of the same duration from the expiration of the Initial Term. During each Renewal Period the terms and conditions of this Agreement shall apply.
2.2 Termination by Either Party. Either party may terminate this Agreement on thirty (30) days prior written notice at the end of the Initial Term or any Renewal Period.
2.3 Termination by Provider. The Provider may terminate this Agreement immediately upon giving notice to the Customer if the Customer (a) fails to pay fees under this Agreement when due; (b) becomes insolvent or bankrupt, or has a receiver of its assets or property appointed, or makes an assignment for the benefit of its creditors; or is in breach of any material provision of this Agreement. The Provider may also terminate this Agreement upon thirty (30) days' prior notice to the Customer if the Provider ceases to offer the Services generally.
2.4 Termination of Services by Provider. The Provider reserves the right to suspend, refuse or terminate any or all of the Services if the Provider, in its sole and absolute discretion, deems any of the content within, or any links from, the Website to be illegal, misleading, or obscene, or otherwise in breach of the Provider's then current Acceptable Use Policy. The Provider has no obligation to monitor, screen or edit content or links originating from the Website, but reserves the right to do so and to remove, without notice, any offensive or objectionable content or links, in the sole discretion of the Provider or upon being required to do so by any court or regulatory agency.
2.5 Effect of Termination. Any expiration or termination of this Agreement for whatever reason, provided that it is made in accordance with the terms of this Agreement, shall not (a) affect or be deemed to affect any right or obligation which by its terms is to survive such termination, including the obligation of the Customer to pay all unpaid fees for Services; (b) affect any right or obligation which was accrued prior to such termination; or (c) entitle the Customer to any compensation, indemnification or severance payment from the Provider. Upon expiration or termination of this Agreement, the Provider may delete any and all information relating to the Website from the server used by the Provider to host the Website including databases, mailing lists and any Web pages that were generated by the Services.
SECTION 3. CHARGES AND PAYMENT
3.1 Hosting Fees. The Customer will pay to the Provider the monthly hosting fees set out in the Term Sheet, together with all applicable taxes.
SECTION 4. WAIVERS AND INDEMNITIES
4.1 Disclaimer. The Provider makes no representations, warranties or conditions, express, statutory or implied, with respect to the Website or the Services. The Provider expressly disclaims all other representations, warranties or conditions, including any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose. The Provider does not warrant that the Website will meet the Customer's requirements or that it will function uninterrupted, error free or that all defects in the code underlying the Website will be corrected. The Provider makes no representation or warranty regarding accessibility to, or the privacy or security of, any of the Customer's information, files or data. The Customer assumes the entire risk as to the results and performance of the Website. The Customer acknowledges that it has not relied on any representation by the Provider as to the suitability of any particular Services for any particular purpose. The Provider does not represent or warrant that the Website will be capable of achieving any particular result or results in the Customer's business or operations. THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OR MERCHANTABILITY, FITNESS OF A PARTICULAR PURPOSE, NON-INFRINGEMENT OR AVAILABILITY OR RELIABILITY OF THE SERVICES.
4.2 Limitation of Liability. Notwithstanding any other provision of this Agreement, the Customer's sole and exclusive remedy in connection with any allegation of non-performance or defective performance of this Agreement by the Provider shall be the repair, adjustment or re-performance of the Services. If, in the sole opinion of the Provider, the Services are not reasonably capable of being repaired, adjusted or re-performed, the Provider's total liability to the Customer shall be limited to the actual direct damages suffered by the Customer exclusively attributable to the conduct of the Provider, but in no event shall the amount payable by the Provider exceed the total monthly charges paid by the Customer during the period the damages were incurred, up to a maximum of three (3) months.
4.3 Non-Liability of Provider. The Customer acknowledges and agrees that the Provider will incur no liability to the Customer or any person claiming through or on behalf of the Customer for any claim, whether in contract, tort, warranty, strict liability, product liability, negligence or any other theory of recovery relating in any manner to the Website. In no event whatsoever will the Developer, its directors, officers, employees. agents, contractors or affiliates be liable for any of the following, even if the Provider has been advised of the possibility of such loss or damage:
(a) punitive, exemplary or aggravated damages;
(b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of any files, data, information, computer resources or stored data;
(c) indirect, consequential or special damages of any kind;
(d) contribution, indemnity or set-off in respect of any claims against the Customer by any third party;
(e) any damages whatsoever related to any hardware, software, goods or services not developed or provided by the Developer; or
(f) any damages whatsoever relating to interruption, delays, errors or omissions.
4.4 Indemnity by the Customer. The Customer acknowledges that the content of the Website is the sole responsibility of the Customer. The Customer agrees to defend, indemnify and hold harmless the Provider, its directors, officers, employees, agents, contractors and affiliates from any loss, damage or liability, including reasonable legal costs, that the Provider may incur as a result of or in connection with:
(a) the Customer's use of the Website in any manner not contemplated by the Term Sheet;
(b) the Customer's engagement in any activity that is illegal, offensive or immoral or that infringes on the rights of privacy or publicity, or any intellectual or proprietary rights of any third party;
(c) any claim that any Website material or content infringes the intellectual property rights of any third party, or is defamatory, or violates the privacy or any other rights of any other party;
(d) any claim or suit made by any client or customer of the Customer; or
(e) any breach by the Customer of the Customer's obligations under this Agreement.
SECTION 5. GENERAL PROVISIONS
5.1 Survival. The termination of expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration. Without restricting the generality of the previous sentence, it is agreed and understood that the provisions of Section 4 shall survive the termination of expiration of this Agreement for any reason whatsoever.
5.2 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party.
5.3 Notice. Any notice required or permitted to be given to either party under this Agreement shall be sufficiently given if by personal service or by sending it by prepaid registered mail, courier service, facsimile transmission or email to that party's address for service as set out in the Term Sheet. Any notice sent by registered mail according to the provisions of this section shall be deemed to have been received on the fifth Business Day following the date of mailing, but no day during which there shall be a strike or other occurrence which shall interfere with normal mail services shall be considered a Business Day. Any notice sent by courier service shall be deemed to be delivered one day after deposit for delivery with a reliable independent overnight delivery service which shall retain a written record of such delivery. Any notice sent by facsimile transmission or email shall be deemed to have been received on the next day following the date of transmission. Either party may give written notice of change of address in the same manner, after which any further notices shall be given to that party at its changed address.
5.4 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Each party submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Agreement.
5.5 Binding Effect. This Agreement shall enure to the benefit of, and be binding upon, the parties and their respective successors, affiliates and permitted assigns.
5.6 Delays in Performance. In the event that the Provider should be delayed in the performance of any of its obligations under this Agreement because of fire, flood or other natural disaster, strike, delays caused by common carriers, lawful acts of public authorities, war (declared or undeclared), acts of terrorism, pandemic or other public health emergency, or any other circumstances beyond its control, then the date for completion of such obligation shall be extended accordingly, and the Provider shall not be responsible for any loss or damage caused by any such delay. The Provider shall be prompt in restoring normal Services as soon as the interruptions have ceased. Nothing in this section shall extend the time for payment by the Customer to the Provider for Services.
SECTION 6. INTERPRETATION
6.1 Definitions. In this Agreement, unless the context otherwise requires, the following terms have the following meanings:
"Acceptable Use Policy" means the policy in effect from time to time governing acceptable conduct for the use of the Services, as published by the Provider from time to time and as may be amended by the Provider at any time in its sole discretion.
"Agreement" means the Term Sheet, these Terms and Conditions, and all written agreements signed by both Parties which amend, supplement or confirm this Agreement.
"Business Day" means any day, other than Saturday, Sunday or any statutory holiday in the Province of Ontario;
"Customer" means the party entering into this Agreement with the Provider.
"Provider" means Visual Odyssey Inc.
"Renewal Period" has the meaning assigned in section 2.2.
"Services" means the services to be provided to the Customer by the Provider as described in this Agreement.
"Term" means the period of time this Agreement is in effect, including the Initial Term described in section 2.1 and any and all Renewal Periods.
"Website" means a series of interconnected web pages intended to be accessible by internet users with a web browser, as designed by the Provider and delivered to the Customer in accordance with the provisions of a separate Website Development Agreement.
6.2 Headings and Table of Contents. The inclusion in this Agreement of headings, subheadings and table of contents is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
6.3 Extended Meanings. In this Agreement, unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. The term "including" means "including without limitation" and the term "include" means "include without limitation".
6.4 Currency. In this Agreement all monetary amounts are stated and payable in Canadian currency.
6.5 Severability. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision.
6.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties and sets out all the covenants, promises, warranties, representations, conditions, understandings and agreements between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no covenants, promises, warranties, representations, conditions, understandings or other agreements, oral or written, express, implied or collateral between the parties in connection with the subject matter of this Agreement except as specifically set out in this Agreement.
6.7 Amendments and Waivers. No amendment to this Agreement shall be valid or binding unless set out in writing and duly executed by both parties. No waiver of any breach of any provision of this Agreement shall be effective or binding unless made in writing and signed by the party purporting to give such waiver and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived.
SECURITY STATEMENT
GreenSprocket values your right to security and we recognize the importance of securing online transactions. This site has security measures in place to protect the loss, misuse and alteration of the information under our control.
Transactions taking place between our server and PSiGate data centers are encrypted using SSL, a highly secure encryption technique.
When necessary, stored customer data is encrypted as a further measure of protection. We use a state-of-the-art facility and employ security technology to prevent our computers from being accessed by unauthorized persons.
PRIVACY POLICY
WEBSITE VISITORS
Like most website operators, GreenSprocket collects non-personally-identifying information of the sort that web browsers and servers typically make available, such as the browser type, language preference, referring site, and the date and time of each visitor request. GreenSprocket's purpose in collecting non-personally identifying information is to better understand how GreenSprocket's visitors use its website.GreenSprocket also collects potentially personally-identifying information like Internet Protocol (IP) addresses. GreenSprocket does not use such information to identify its visitors, and does not disclose such information, other than under the same circumstances that it uses and discloses personally-identifying information, as described below.
GATHERING OF PERSONALLY-IDENTIFYING INFORMATION
Certain visitors to GreenSprocket's websites choose to interact with GreenSprocket in ways that require GreenSprocket to gather personally-identifying information. The amount and type of information that GreenSprocket gathers depends on the nature of the interaction. Those who engage in transactions with GreenSprocket - by purchasing our products or services - are asked to provide additional information, including as necessary the personal and financial information required to process those transactions. In each case, GreenSprocket collects such information only insofar as is necessary or appropriate to fulfill the purpose of the visitor's interaction with GreenSprocket. GreenSprocket does not disclose personally-identifying information other than as described below. And visitors can always refuse to supply personally-identifying information, with the caveat that it may prevent them from engaging in certain website-related activities.PROTECTION OF CERTAIN PERSONALLY-IDENTIFYING INFORMATION
GreenSprocket discloses potentially personally-identifying and personally-identifying information only to those of its employees, contractors and affiliated organizations that (i) need to know that information in order to process it on GreenSprocket's behalf or to provide services available at GreenSprocket's websites, and (ii) that have agreed not to disclose it to others. Some of those employees, contractors and affiliated organizations may be located outside of your home country; by using GreenSprocket's websites, you consent to the transfer of such information to them. GreenSprocket will not rent or sell potentially personally-identifying and personally-identifying information to anyone. Other than to its employees, contractors and affiliated organizations, as described above, GreenSprocket discloses potentially personally-identifying and personally-identifying information only when required to do so by law, or when GreenSprocket believes in good faith that disclosure is reasonably necessary to protect the property or rights of GreenSprocket, third parties or the public at large. If you are a registered user of a GreenSprocket website and have supplied your email address, GreenSprocket may occasionally send you an email to tell you about new features, solicit your feedback, or just keep you up to date with what's going on with GreenSprocket and our products. We primarily use our various product blogs to communicate this type of information, so we expect to keep this type of email to a minimum. If you send us a request (for example via a support email or via one of our feedback mechanisms), we reserve the right to publish it in order to help us clarify or respond to your request or to help us support other users. GreenSprocket takes all measures reasonably necessary to protect against the unauthorized access, use, alteration or destruction of potentially personally-identifying and personally-identifying information.COOKIES
A cookie is a string of information that a website stores on a visitor's computer, and that the visitor's browser provides to the website each time the visitor returns. GreenSprocket uses cookies to help GreenSprocket identify and track visitors, their usage of GreenSprocket website, and their website access preferences. GreenSprocket visitors who do not wish to have cookies placed on their computers should set their browsers to refuse cookies before using GreenSprocket's websites, with the drawback that certain features of GreenSprocket's websites may not function properly without the aid of cookies.PRIVACY POLICY CHANGES
Although most changes are likely to be minor, GreenSprocket may change its Privacy Policy from time to time, and in GreenSprocket's sole discretion. GreenSprocket encourages visitors to frequently check this page for any changes to its Privacy Policy. Your continued use of this site after any change in this Privacy Policy will constitute your acceptance of such change.