2.3 Payment Terms. Customer shall pay all
applicable fees for the Services in accordance
with the terms and conditions set forth in
Schedule 1.
2.4 Term. This Agreement starts on the Effective
Date and continues for a period of 12 months
“The Term” described in the Schedule
1 herein. Unless otherwise terminated in accordance
with the terms of this Agreement, this Agreement
shall be automatically extended for periods
of 12 months each upon the anniversary of
the expiry of each preceding term.
3. INTELLECTUAL PROPERTY OWNERSHIP
This Agreement does not transfer to Customer
any ownership or proprietary rights in the
Technology, and all right, title and interest
in and to the Technology will remain solely
with CustomFAQs or its supplier.
4 LIMITED WARRANTY
4.1 Service Level. CustomFAQs will use commercially
reasonable efforts to cause the Services to
be performed in a manner consistent with applicable
industry standards including, but not limited
to:
1) Service availability 24 hours a day, 7
days a week,
2) Daily backups of all customer information,
and
3) Respond to customers' requests for support
during the hours of 9:00 AM to 5:00PM PST,
Monday through Friday, excluding federal holidays.
4.2 No Other Warranty. THE SERVICES ARE PROVIDED
ON AN "AS IS" BASIS, AND CUSTOMER'S
USE OF THE SERVICES IS AT ITS OWN RISK. CustomFAQs
DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND
ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES
AND MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGMENT AND TITLE, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE OR TRADE PRACTICE. CustomFAQs DOES NOT
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE OR COMPLETELY SECURE.
5. LIMITATIONS OF LIABILITY
5.1 Damage to Customer Equipment. CustomFAQs
ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR
LOSS OF, ANY CUSTOMER EQUIPMENT OR DATA RESULTING
FROM ANY CAUSE OTHER THAN THE WILLFUL OR RECKLESS
MISCONDUCT OF CustomFAQs.
5.2 Consequential Damage Waiver. IN NO EVENT
WILL EITHER PARTY BE LIABLE OR RESPONSIBLE
TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING
BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS
OR SERVICES, LOSS OF DATA, OR INTERRUPTION
OR LOSS OF SERVICE OR EQUIPMENT, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER
ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
5.3 Damages. EACH PARTY'S TOTAL LIABILITY
FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY
KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT
SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID
OR PAYABLE BY CUSTOMER TO CustomFAQs HEREUNDER
DURING THE TWELVE (12)) MONTHS PRIOR TO THE
EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM
OR DAMAGES. THIS LIMITATION ON LIABILITY WAS
AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN
CustomFAQs AND CUSTOMER AND WAS A CONTROLLING
FACTOR IN THE SETTING OF THE FEES PAYABLE
TO CustomFAQs HEREUNDER.
6. INDEMNIFICATION
Each Party agrees to fully indemnify and hold
harmless the other for any and all costs,
liabilities, losses, and expenses (including
attorney's fees) resulting from any claim,
suit, action, or proceeding brought by any
third party arising from a Party's (a) breach
of any of its obligations or warranties; or
(b) willful misconduct.
7. TERMINATION
7.1 Termination For Cause. Either party may
terminate this Agreement if the other party
breaches any material term or condition of
this Agreement and failed to cure such breach
within thirty (30) days after receipt of written
notice of the same. If CustomFAQs terminates
for cause, all payments due and owning for
the remainder of the Term will immediately
be due for work performed.
7.2 Termination Without Cause. Either party
may terminate this agreement without cause
providing that the terminating party gives
the other party thirty (30) day's written
notice prior to termination. Should Customer
terminate without cause after the Service
Start Date, Customer must pay the balance
of contracted term. Should CustomFAQs terminate
without cause, Customer has no obligation
for payment.
7.3 Termination for Bankruptcy. Either party
may terminate this Agreement immediately if
(a) the other party becomes the subject of
a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency,
receivership, liquidation, or composition
for the benefit of creditors; or (b) the other
party becomes the subject of an involuntary
petition in bankruptcy or any involuntary
proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit
of creditors, if such petition or proceeding
is not dismissed within thirty (30) days of
filing.
7.4 Effect of Termination. Upon the effective
date of expiration, cancellation or termination
of this Agreement (a) CustomFAQs will immediately
cease providing the Service(s); and (b) any
and all payment obligations of the Customer
through the termination, depending upon cause
or without cause, as defined above, will immediately
become due.
7.5 Survival. The following provisions will
survive any expiration or termination of the
Agreement: Sections 3 (Intellectual Property
Ownership), 5 (Limitation of Liability), 6
(Indemnification), 9 (Confidentiality) and
10 (Miscellaneous).
8. USE
8.1 Acceptable Use: Customer is prohibited
from storing, distributing or transmitting
any unlawful material through the hosting
services provided hereunder. Examples of unlawful
material include, but are not limited to,
threats of physical harm, child pornography,
and copyrighted, trademarked and other proprietary
material used without proper authorization.
Customer may not post, upload, or otherwise
distribute copyrighted material as a result
of the hosting services provided hereunder
without the consent of the copyright holder.
The storage, distribution, or transmission
of unlawful materials could subject Customer
to criminal as well as civil liability, in
addition to the actions further outlined in
this Agreement. Customer indemnifies CustomFAQs
Ltd. against any action resulting from unlawful
use.
8.2 Restrictions on Use. Customer represents
and warrants that Customer and its Authorized
Users will not (a) sell, lease, distribute,
license or sublicense the Technology or Services;
(b) modify, change, alter, translate, create
derivative works from, reverse engineer, disassemble
or decompile the Technology or Services in
any way for any reason; (c) provide, disclose,
divulge or make available to, or permit use
of the Technology or Services by, any third
party; (d) copy or reproduce all or any part
of the Technology or Services (except as expressly
provided for herein); (e) interfere, or attempt
to interfere, with the Technology or Services
in any way; (f) introduce into or transmit
through the Technology or Services any virus,
worm, trap door, back door, timer, clock,
counter or other limiting routine, instruction
or design; (g) remove, obscure or alter any
copyright notice, trademarks, logos or other
proprietary rights notices affixed to or contained
within the Technology or Services; or (h)
engage in or allow any action involving the
Technology or Services that is inconsistent
with the terms and conditions of this Agreement.
8.3 Withdrawal of Access. CustomFAQs may,
upon reasonable grounds, instruct Customer
to terminate access to any Authorized User
or individual and Customer agrees to promptly
comply with such instruction.
9. CONFIDENTIALITY.
9.1 CustomFAQs Information. Customer acknowledges
that the Technology and Services contain valuable
trade secrets, which are the sole property
of CustomFAQs or its suppliers, and Customer
agrees to use reasonable care to prevent other
parties from learning of these trade secrets.
Customer will take all reasonable steps to
prevent the unauthorized access to the Technology
and Services.
9.2 Customer Information. CustomFAQs acknowledges
that Customer's database may contain valuable
trade secrets, which are the sole property
of Customer. To the extent that CustomFAQs
becomes aware of the content of a Customer
database, CustomFAQs agrees to use reasonable
care to prevent other parties from learning
of these trade secrets; provided CustomFAQs
may disclose such trade secrets to affiliates,
agents and other third parties, including
counsel and regulators, on a need-to-know
basis, so long as such parties agree to maintain
the confidentiality of such information.
9.3 Exceptions. The obligations of this Section
9 shall not apply to any information that
(a) is now, or hereafter becomes, through
no act or failure to act on the part of receiving
party (the "Receiver"), generally
known or available; (b) is known by the Receiver
at the time of receiving such information,
as evidenced by the Receiver's records; (c)
is hereafter furnished to the Receiver by
a third party, as a matter of right and without
restriction on disclosure; (d) is independently
developed by the Receiver without reference
to or use of the disclosing party's information;
or (e) is required to be disclosed by law,
provided that the party to whom the information
belongs is given prior written notice of any
such proposed disclosure.
10. MISCELLANEOUS PROVISIONS
10.1 FORCE MAJEURE. Except for the obligation
to make payments, either party, will not be
liable for any failure or delay in its performance
under this Agreement due to any cause beyond
its reasonable control, including acts of
war, acts of God, earthquake, flood, embargo,
riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet
(not resulting from the negligence or willful
misconduct of CustomFAQs), provided that the
delayed party: (a) gives the other party prompt
notice of such cause, and (b) uses its reasonable
commercial efforts to promptly correct such
failure or delay in performance. If CustomFAQs
is unable to provide Service(s) for a period
of thirty (30) consecutive days as a result
of a continuing force majeure event, Customer
may cancel the Service(s) without penalty.
10.2 GOVERNING LAW. This Agreement is made
under and will be governed by and construed
accordance with the laws of the State of British
Columbia.
10.3 Dispute Resolution. The parties acknowledge
that this Agreement evidences a transaction
involving inter-provincial and international
commerce. Any controversy or claim arising
out of or relating to this Agreement, or the
breach of the same, shall be settled through
consultation and negotiation in good faith
and a spirit of mutual cooperation for up
to fifteen (15) days commencing on the date
when one party gives written notice to the
other party of any controversy or claim. However,
if those attempts fail, the parties agree
that any misunderstandings or disputes arising
from this Agreement shall be decided by binding
arbitration which shall be conducted, upon
request by either party, in Chicago, Illinois,
before one (1) arbitrator designated by the
American Arbitration Association (the "AAA"),
in accordance with the terms of the Commercial
Arbitration Rules of the AAA, and, to the
maximum extent applicable, the United States
Arbitration Act (Title 9 of the United States
Code). Notwithstanding anything herein to
the contrary, either party may seek to obtain
equitable relief at any time in the courts
of the Province of British Columbia. Both
parties hereby irrevocably submit to the exclusive
jurisdiction of the court of the Province
of British Columbia.
10.4 SEVERABILITY; WAIVER. In the event any
provision of this Agreement is held to be
contrary to the law, the remaining provisions
of this Agreement will remain in full force
and effect.
10.5 ASSIGNMENT. CustomFAQs may assign its
rights and obligations under this Agreement,
in whole or in part, to any entity, including
its supplier. Customer may not assign this
Agreement, in whole or in part, without the
prior written consent of CustomFAQs, which
consent will not be unreasonably withheld.
10.6 NOTICE. Any notice or communication required
or permitted to be given hereunder may be
delivered by hand, deposited with an overnight
courier, sent by email, conformed facsimile,
or mailed by registered or certified mail,
receipt requested, postage prepaid, in each
case to the address of the receiving party
as listed herein.
10.7 RELATIONSHIP OF PARTIES. CustomFAQs
and Customer are independent contractors and
this Agreement will not establish any relationship
of partnership, joint venture, employment,
franchise or agency between CustomFAQs and
Customer. Neither CustomFAQs nor Customer
will have the power to bind the other or incur
obligations on the other's behalf without
the other's prior written consent, except
as otherwise expressly provided herein.
10.8 WAIVER. The waiver or failure of either
party to exercise in any respect any right
provided for in this Agreement shall not be
deemed a waiver of any further right under
this Agreement.
10.9 ENTIRE AGREEMENT; COUNTERPARTS; ORIGINALS.
This Agreement, including all documents incorporated
herein by reference, constitutes the complete
and exclusive agreement between the parties
with respect to the subject matter hereof.
11. ACCEPTANCE
Authorized representatives of Customer and
CustomFAQs have read the foregoing and all
documents incorporated therein and agree and
accept such terms effective as of the date
of purchase.
