Stage2Data Terms and Conditions
These Terms and Conditions (“Terms” and/or this “Agreement”) are the only terms which govern the provision of Products and Services (the “Services”) by Stage2Data Inc., an Ontario corporation having its principal place of business at 2305 Wyecroft Rd, Suite 200, Oakville, ON, L6L 6R2 (“Stage2Data”) to those Customers electing to receive the Services, and have indicated such intent by signing and remitting a Stage2Data signed Proposal (the “Proposal”). By signing and accepting the Proposal, the Customer agrees to be bound by the terms and conditions outlined in this Agreement. This Agreement, including all terms, conditions, and specifications set forth herein and in the Proposal, shall become a binding contract upon the Customer’s signature and acceptance of the Proposal. The terms are as follows:
1. AGREEMENT IN WRITING: Any amendments to this Agreement require a written amendment indicating the consent of both Parties to such Terms. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein. These Terms shall override and supersede any conflicting terms or agreements delivered by Stage2Data or the Customer.
2. TERM OF THIS AGREEMENT: The Term of this Agreement shall be as per the signed Proposal signed by the Customer.
3. SUSPENSION: Stage2Data may suspend Customer’s access to Customer Data or Support Services or terminate this Agreement and/or a Statement of Work, effective immediately, if Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from Stage2Data that payment is past due. Fees will continue to accrue during any such suspension.
4. IMMEDIATE TERMINATION: Either party may terminate this Agreement immediately upon written notice and all licenses and services if:
4.1. the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching party;
4.2. the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt;
4.3. a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date;
4.4. the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or
4.5. a receiver is appointed for the other party or its business.
5. OBLIGATIONS UPON TERMINATION Upon the termination or expiration of this Agreement:
5.1. Customer shall promptly pay in full all outstanding payments to Stage2Data (but in any event, no later than ten (10) days following the date on which termination or expiration is effective);
5.2. All licenses granted hereunder (if any) will immediately terminate and Customer shall immediately cease all use of the related Products (except Hardware, including Appliance Hardware, purchased and paid for by Customer);
5.3. Customer shall remove all copies (or permit Stage2Data to remove all copies, if applicable) of the Licensed Software (including Appliance Software except the operating system) from its computer systems and shall return or destroy, at Stage2Data’s option, all such copies; and
5.4. The receiving party shall promptly return all Confidential Information (except Customer Data) of the disclosing party in its possession or control.
With respect to 5.3 and 5.4 Customer shall certify to Stage2Data in writing within ten (10) days of the date on which termination or expiration is effective that it has made no other copies, or has completely destroyed all copies, including backup or archive copies, of the Licensed Software or any portion thereof, and that no copies of any portion of the Licensed Software are in existence on any network, system, or equipment ever owned or used by Customer. With respect to Customer Data maintained at a Stage2Data Data Center, on or before termination or expiration of the services, upon Customer’s request and payment of the applicable fees, Stage2Data will export the Customer Data to a mobile device and return such data to Customer. In the alternative, Customer may request, in writing, that Stage2Data delete all Customer Data maintained at a Stage2Data data center. Customer understands and agrees that following termination or expiration of the services, Stage2Data may delete all of the Customer Data from its Systems and will have no liability for such action. The expiration or termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration.
6. PRICING, INVOICING AND PAYMENT
6.1. Fees for Products: Customer shall purchase the Hardware, as set forth in the applicable signed Proposal, directly from Stage2Data. Any signed Proposal submitted to Stage2Data for the purchase of Hardware is irrevocable; the obligation to purchase the Hardware set forth on the signed Proposal cannot be canceled except by mutual agreement of the parties. Title to the Hardware and risk of loss and damage will pass to Customer when Stage2Data configures the Hardware for use by Customer. Except as included in the Stage2Data Onsite Managed Service, Customer acknowledges and agrees that Stage2Data shall have no maintenance, support, or warranty responsibility with respect to the third-party Hardware. Customer may separately purchase a maintenance package for the Hardware from the Hardware manufacturer as specified by Stage2Data.
6.2. Fees for Services: Service fees are based on a fixed monthly fee and a “per activity” basis for various services, in accordance with the applicable signed Proposal.
6.3. Additional Services: Fees for any additional services, including, without limitation, data seeding, data restoration or data deletion will apply if requested by the Customer. In addition, Customer shall reimburse Stage2Data for any expenses incurred in the performance of Professional Services on condition that any single expense or group of related expenses exceeding five-hundred US dollars (USD$500.00) will require Customer’s prior written approval. Except as specifically set forth in this Agreement, all Fees are non-refundable.
6.4. Shipping: Shipping and insurance costs are not included in the Customer’s cost for the Hardware, and Customer agrees to pay all applicable shipping and insurance fees for the delivery of the Customer Hardware, and all fees and any other charges required by the Product Manufacturer.
6.5. Taxes: All Fees are exclusive of any sales, GST/HST, foreign withholding or other government taxes, duties, fees, excises, or tariffs imposed on the production, storage, licensing, sale, transportation, import, export or use of the Products or performance of any services (collectively, “Taxes”). Customer is responsible for, and if applicable will reimburse Stage2Data within thirty (30) days of request for, all such Taxes and any related penalties, except for taxes imposed on Stage2Data’s net income.
6.6. Credit: Acceptance of any signed Proposal by Stage2Data and the applicability of Stage2Data’s standard payment terms are subject to Stage2Data’s review of Customer’s credit history and rating. Notwithstanding anything to the contrary in this Agreement, if a Customer’s credit history and/or ratings do not meet Stage2Data’s acceptance criteria as determined by Stage2 in Stage2’s sole discretion, Customer may be required to make deposits and/or up-front payments on orders until an acceptable credit history is established. Credit card payments will have an additional four (4%) fee.
6.7. Invoices: Invoices will be issued monthly and payment is due upon receipt of the invoice Date. The Customer is responsible for any communication costs associated with the connection and warehousing and or hosting of the Hardware between and or within the Customer’s sites. The Customer is responsible for all sales, retail, excise or value-added taxes on the fees payable to Stage2Data for services provided. Prices for a renewal term shall be at the most current price schedule provided by Stage2Data. Stage2Data reserves the right to modify pricing upon 45 days advance written notice to Customer.
6.8. Payment and Late Payments: Payments due under this Agreement shall be made in Canadian or United States currency based on the Customer’s country of origin in the amounts and at the times set forth in the applicable signed Proposal or Statement of Work or, if not indicated therein, upon receipt of invoice. If it is Customer’s standard business practice to issue purchase orders prior to payment of invoices, then Customer will ensure that a purchase order accompanies each signed Proposal submitted to Stage2Data. Customer shall reimburse Stage2Data for all reasonable costs incurred by Stage2Data in collecting any late payment of amounts due or related interest, including legal fees, court costs, and collection agency fees.
6.9. Interest: If Customer fails to pay any amount when due, Customer shall pay, in addition, interest at the rate of one and one half percent (1½%) per month (18% per annum) compounded monthly, but not to exceed the maximum allowed by law, on such delinquent amounts.
7. CUSTOMER RESPONSIBILITIES
7.1. CLOUD SERVICES: Prior to, or at, the installation of Software by Stage2Data, Customer shall have the sole responsibility to provide the following:
7.1.1. Space to rack the appropriate server with adequate power as per the applicable signed Proposal; Network connections as required per the signed Proposal;
7.1.2. Assign static IP addresses as per the signed Proposal;
7.1.3. Port forward necessary ports from the outside to assigned static IP address;
7.1.4. Open ports as stipulated in the signed Proposal for outbound traffic;
7.1.5. For any onsite hardware device replicating to the Stage2Data facilities, the Customer will ensure the communication services and network bandwidth is error free, reliable, and has the capacity to handle the requirements to process timely data transfers for the solution;
7.1.6. Provide viable storage platform (server, storage, and licenses) as required to accommodate private cloud solutions for either expected or unexpected data volume growth. It is understood by the Customer that the storage platform’s maximum capacity is not to exceed 80% of a vault’s best practice maximum capacity.
7.1.7. For monitoring service: the Customer shall provide external network access to the customers onsite environment as required by whatever monitoring solution is applicable.
7.1.8. For Support Services: provide external network access to the relevant systems which is a requirement to provide our service as part of this agreement;
7.1.9. Define the Client Data covered by Stage2Data Services through the file selection and validation processes.
7.1.10. Customer shall encrypt, using the encryption feature provided in the relevant Products, including, without limitation, data transferred over the Internet or via a Transfer Appliance or other media.
7.2. DISASTER RECOVERY SERVICES (DRS):
7.2.1. On Boarding: Customer is required to fill out and electronically sign and / or agree to (via email) the Warm Site configuration. Stage2Data will compare the information in the Warm Site configuration to the signed Proposal and if there is a difference in resources required of more than 10%, then a new Order must be placed to make up the difference in resources or Customer must reduce the resources required in the Warm Site.
7.2.2. Level of Services and Software: The Customer acknowledges and agreed that the selected service level as specified in the applicable signed Proposal is sufficient to meet Customer’s requirements for continuing its information processing activities in the event a Disaster is declared. During the term of the Disaster Recovery Services, Customer shall maintain its Licensed Software, system software and operating systems at a release level for which Stage2Data or the manufacturer, as applicable, then currently provides support.
7.2.3. Disaster Recovery Testing: Customer shall conduct disaster recovery testing under the supervision of Stage2Data as soon as practicable following the effective date of the Disaster Recovery Services. Customer is responsible for scheduling this test and ensuring that this test occurs prior to a declaration of a Disaster. As a part of such testing, Customer shall identify its disaster recovery personnel. Testing should be completed using Customer’s actual servers and server application sets. The server listing is defined in the Warm Site configuration. Stage2Data shall provide Customer with access to a Warm Site in order to conduct testing, subject to the number of tests or hours of usage permitted under the level of Disaster Recovery Services purchased by Customer, as set forth in the applicable signed Proposal. If Customer requires additional testing, a Warm Site will be available to Customer, as set forth in Stage2Data’s signed Proposal. Customer must schedule tests at least thirty (30) days in advance. Priority use of the Warm Sites is given to customers that have a declared Disaster. Accordingly, all tests are subject to cancellation by Stage2Data and in the event of a cancellation, will be rescheduled as soon as possible. During each Test, Stage2Data support staff shall provide reasonable supplies and support to Customer, as needed. Following a joint review of the disaster recovery test, Stage2Data will assign a resource to coordinate test support activities.
7.2.4. Definition and Declaration of a Disaster: Customer shall designate one or more individuals who have the authority to declare a Disaster on behalf of Customer and provide to Stage2Data a list of such personnel. Customer understands and agrees that a Disaster may only be declared by one of these individuals, however the individuals with said authority have absolute and sole discretion in defining a Disaster and can do so as frequently as they wish within the terms as outlaid in the signed Proposal. Any additional testing over and above the Proposal will be at an additional fee as per the signed Proposal. In the event a Disaster occurs, Customer must notify Stage2Data that it is declaring a Disaster in accordance with that disaster recovery declaration process provided by Stage2Data.
7.2.5. During a Disaster: Customer shall provide any equipment, software, workspace, supplies, personnel and/or telecommunications services needed, that are not included in the Warm Site. For the avoidance of doubt, Customer must provide its own equipment, such as laptops, in order to access and use the Warm Site. Customer also must re-route all external IP addresses and aliases to the IP addresses provided by Stage2Data. Further, Customer must provide, during a Disaster or Test, the appropriate skills and knowledge required to recover, support and maintain the business applications being recovered on the Warm Site. Following a Disaster, Customer is responsible for installing its applications on its equipment.
7.2.6. Encryption Keys: If Customer declares a Disaster, Customer must provide to Stage2Data its encryption keys where applicable in order for Stage2Data to be able to restore the data to the Warm Site. Such encryption keys are deemed to be Confidential Information, and Stage2Data will hold such keys and all data protected by such keys in accordance with Stage2Data’s confidentiality obligations set forth in these Terms and Conditions.
7.2.7. Availability of Warm Site: Customer understands and agrees that when a declaration is made during a regional or national disaster, the availability of services and equipment will be on a first-come, first served basis. Accordingly, while Stage2Data will provide a Warm Site and restore Customer’s data within Services level purchased by Customer, delays may occur due to the high demand for resources during such events. Stage2Data will make commercially reasonable efforts to prioritize and restore services promptly but cannot guarantee immediate access to equipment or uninterrupted service during these extraordinary circumstances. Customer acknowledges these potential limitations and agrees to plan accordingly.
8. DELIVERY, INSTALLATION, SECURITY AND SUPPORT
8.1. DELIVERY
8.1.1. Licensed Software. Following the acceptance of this Agreement and the Customer specific signed Proposal, Stage2Data will provide Customer with the software key(s) necessary for Customer to use the Licensed Software. The Licensed Software is deemed to be delivered upon Stage2Data providing to the Customer the software key.
8.1.2. Appliances and Hardware. Title to the Hardware and risk of loss and damage will transfer to the Customer when Stage2Data or its supplier delivers the Hardware to the carrier chosen by the Customer. Additionally, if Stage2Data configures the Hardware for the Customer’s use before delivery, the risk of loss or damage will pass to the Customer at the time of configuration.
8.1.3. Delivery of Hardware will be FCA (Free Carrier), from the premises of Stage2Data or its supplier, as such term is defined by Incoterms 2000, meaning that Stage2Data fulfills its delivery obligation once the goods are handed over to the carrier selected by the Customer at the specified location, with all costs and risks of transport transferring to the Customer at that point.
8.1.4. Stage2Data shall deliver the configured Appliance or Hardware to the Customer within ten (10) working days from the date it arrives from the Product Manufacturer, unless another delivery date is set forth in the signed Proposal or the parties agree otherwise in writing. Shipping fees are not included in the price of the Hardware or Appliance and are the responsibility of Customer. If Customer is renting or leasing the Appliance Hardware, title to the Appliance Hardware will remain with Stage2Data at all times.
8.1.5. Delivery of subscription services, Other Services, Hosting Services, Software Managed Services and Support Services will begin on the Service Effective Date as set out in the applicable signed Proposal. Professional Services are deemed to be delivered upon completion by Stage2Data of the services in accordance with the applicable signed Proposal.
8.1.6. All products and services are deemed to be accepted by the Customer upon delivery.
8.2. INSTALLATION OF SECURITY FEATURES
8.2.1. Stage2Data may arrange to attend at the Customer’s Premises to ensure all Hardware and Software are properly installed and functioning.
8.2.2. Stage2Data has adopted, and at all times, agrees to abide by its written security policy that includes administrative, technical and physical safeguards that are intended to protect Customer’s Confidential Information from unauthorized access and use.
8.2.3. Customer shall encrypt, using the encryption feature provided in relevant products, all Customer Data that it transmits to Stage2Data, including, without limitation, data transferred over the Internet or via a Transfer Appliance or other media.
8.2.4. Client’s authorized users (“Users”) will access the Subscription Services and Other Services via the Internet by means of a specific account and passwords provided by Stage2Data. Stage2Data will issue to Customer, or will authorize Customer to issue, a password (each, a “Password”) for each User authorized to use the Subscription Services or Other Services using Customer’s account. Stage2Data strongly encourages Customer to change the Passwords issued by Stage2Data for enhanced security. In addition, Customer will designate its own key for the encryption of Customer Data, and understands and accepts that if the Customer loses its encryption key, the Customer will not be able to access its data. Customer is solely responsible for the confidentiality, safekeeping and use of its Passwords, encryption key and the Customer account. For the avoidance of doubt, Stage2Data do not keep or have access to any customer encryption keys.
8.3. SUPPORT:
8.3.1. Software Support: Stage2Data offers 24/7 disaster support to its customers. Regular support for all products and services purchased from Stage2Data is available during standard business hours, from 9:00 AM to 5:00 PM EST. Customers are responsible for performing basic troubleshooting and must provide relevant logs when submitting a support ticket to the designated Stage2Data email address ([email protected]).
8.3.2. Hardware Support: Customer, at its option, may purchase a separate maintenance package for any Hardware, including Appliance Hardware, directly from the Hardware manufacturer. Customer understands and agrees that Stage2Data shall have no maintenance, support or warranty responsibilities with respect to Hardware, except for support with respect to an Appliance if specifically set forth in the signed Proposal.
9. OWNERSHIP AND USE RESTRICTIONS
9.1. CUSTOMER’S DATA: The Customer has sole ownership over the data and Stage2Data has no proprietary interest therein. Customer Data is defined solely by the Customer who has the initial and ongoing ability and responsibility to select the data and files covered by Stage2Data services. Customer agrees that the Customer is solely responsible for the content of all communications it makes while using Customer’s account and all Customer Data it processes using the Subscription Services or Other Services. Customer agrees that Users will not use the Subscription Services or Other Services to communicate any message or material that:
9.1.1. is known, or reasonably should be known, to be libelous, harmful to minors, obscene or constitutes pornography;
9.1.2. is known, or reasonably should be known, to infringe the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of a third party or is otherwise unlawful; or
9.1.3. would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Customer is solely responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is processed using the Products, stored on the System, or disclosed to or used by Customer or Users in connection with the Licensed Software.
9.2. HOSTING SERVICES USE RESTRICTIONS: The Customer agrees that web pages and files uploaded to servers will not: violate any provincial, federal, or foreign laws or regulations; infringe on any intellectual property rights of Stage2Data or any third party; be defamatory, slanderous or trade libelous; be threatening or harassing; be discriminatory based on gender, race, age; promote hate; or contain viruses or computer programming defects which result in damage to Stage2Data or any third party.
9.2.1. Unlawful Use: Customers may not run IRC, bots, or send bulk unsolicited emails, newsgroup spamming, child pornography, hardcore pornography or links to such sites, copyrighted MP3, illegal content, copyright infringement, trademark infringement, warez, cracks, and software serial numbers. Stage2Data, in its sole discretion, will be the sole and final arbiter as to what constitutes a violation of this Section. Stage2Data does not normally monitor the contents of Customer’s servers; however, if suspicion arises, Stage2Data reserves the right to investigate and terminate the Customer’s subscription to the Services.
9.2.2. Bandwidth Usage: Stage2Data operates a fair usage policy on shared bandwidth and reserves the right to review and place limitations on those accounts that adversely affect other customer’s performance.
9.2.3. No “Spam”: UCE/UBE or “spam” originating from a server located on the Stage2Data’s network or associated with the Stage2Data’s servers will not be tolerated. This includes any email that promotes websites hosted on a server located on the Stage2Data’s network. The Customer shall not use Stage2Data’s Services for chain letters, junk mail, bulk-email, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Stage2Data reserves the right to deactivate or terminate any account(s) upon any indication of such activity without notice. There will be a $200.00 clean-up fee if an account was suspended for policy violation. In the event of a dispute Stage2Data reserves the right to determine, in its sole and absolute discretion, whether email recipients were from an opt-in email list.
9.2.4. False Information: The Customer agrees not to post false or inaccurate information to newsgroups in violation of the news group’s rules and regulations. If any newsgroups or service contacts Stage2Data concerning unethical, false, or unlawful activities by the Customer, Stage2Data reserves the right to terminate the Customer Services without notice.
9.2.5. Licensed Software Only: The Customer agrees to use only properly licensed third-party software in connection with the Customer’s use of the Services.
9.2.6. Backup Data: Stage2Data has backup services and it’s the responsibility of the Customer to subscribe to this service and ensure proper backup selection is maintained. Stage2Data is not responsible for any lost data which is not backed up or outside of configured/contracted backup retention periods.
9.2.7. Violations of Intellectual Property Rights: The Customer agrees that it shall not violate any intellectual property rights and that it shall not resell Services to any party which violates Stage2Data’s, or any third-party’s, intellectual property rights. Any violation of any individual or entity’s intellectual property rights including rights of privacy and rights of publicity is prohibited.Stage2Data is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement.
9.2.8. Viruses and Other Destructive Activities: Use of the Services for creating or sending malicious, destructive, or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks, is expressly prohibited and will stand as a breach of these Terms and Conditions. The Customer also agrees not to engage in any other activity with the intent to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (on any connected network, system, service or equipment).
9.2.9. Malicious or Unauthorized Hacking: The Customer agrees not to conduct or promote any ‘hacking’ activity and agrees that ‘hacking’ as herein defined includes but are not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking or cracking. Any such activity, on the part of the Customer, will be considered a material breach of these Terms and Conditions.
9.2.10. Child Pornography: The use of the Services to store, post, display, transmit, advertise, or otherwise make available child pornography is prohibited. Stage2Data will, as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
9.2.11. Other Illegal Activities: The use of the Services to engage in any activities that are determined by Stage2Data, in its sole and absolute discretion, to be illegal or which in Stage2Data’s opinion are likely to be found to be illegal, are prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, password and cracking information, fraudulently charging credit cards, displaying credit card information or other private information of third parties without their consent and failure to comply with applicable on-line privacy laws. Stage2Data will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
9.2.12. Obscene, Defamatory, Abusive or Threatening Language: Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive, or threatening language is prohibited.
9.2.13. Prohibited Activities: The Customer will not run services or software related to Internet Relay Chat (“IRC”), Peer To Peer File Sharing (“P2P”), bitorrent, game servers, proxy server network, or interactive chat applications. The Customer is strictly prohibited from running a P2P, membership or community site for file sharing, video sharing or photo sharing. The above activities consume a great deal of server resources and are strictly prohibited.
9.2.14. Other Prohibited Activities: Engaging in any activity that, in Stage2Data’s sole discretion, disrupts, interferes with or is harmful to (or poses a threat to disrupt, interfere with, or harm) the Services, Stage2Data’s business, operations, reputation, goodwill, customers or customer relations, or the ability of other customers of Stage2Data to effectively use the Services, is strictly prohibited. This includes offering or distributing any program, product, or service intended to, or capable of, violating this agreement. Additionally, failure by the Customer to cooperate with Stage2Data in preventing or addressing violations of this agreement by the Customer, or by a customer of the Customer, will be considered a breach of this agreement.
9.2.15. Monitoring for Authorized Use: Stage2Data Services, including all related equipment, networks and network devices are provided only for authorized Customer use. Stage2Data systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. The Customer understands and accepts that the Customer’s use of the Stage2Data system(s) constitutes consent to monitoring for these purposes.
9.3. PROPRIETARY RIGHTS NOTICES: Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Stage2Data on or in the Products and shall ensure that all such notices are reproduced on all copies thereof.
9.4. COMMERCIAL USE OF SOFTWARE: Customer acknowledges that the Licensed Software and its structure, organization and Source Code constitute valuable trade secrets of Stage2Data or its suppliers. Accordingly, Customer will not, directly or indirectly, do any of the following:
9.4.1. modify, adapt, alter, translate, or create derivative works from the Licensed Software or use the Licensed Software for application development purposes;
9.4.2. merge the Licensed Software with other software;
9.4.3. sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Licensed Software or Products to any third party except as specifically permitted by this Agreement;
9.4.4. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Software or evaluate the Licensed Software in order to develop a competitive product;
9.4.5. use the Licensed Software or Products to process data or provide any service bureau activity for any third party;
9.4.6. otherwise use the Licensed Software except as expressly allowed under this Agreement;
9.4.7. violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with its Users’ use of the Licensed Software;
9.4.8. willfully tamper with the security of any of the Systems or tamper with other customer accounts of Stage2Data;
9.4.9. attempt to access data on the System not belonging to or intended for Customer;
9.4.10. attempt to probe, scan or test the System or to breach the security or authentication measures without proper authorization;
9.4.11. willfully render any part of the Systems unusable; or
9.4.12. publish or disclose to third parties any evaluation of the Licensed Software without Stage2Data’s prior written consent.
9.4.13. Customer acknowledges and agrees that as between Stage2Data and Customer title to and ownership of the Software, including all corrections, enhancements, or other modifications to the Licensed Software, whether made by Stage2Data or any third party, and all Intellectual Property Rights therein, are and will at all times be deemed the sole and exclusive property of Stage2Data or its suppliers, as applicable. All rights not expressly granted to Customer in this Agreement are reserved by Stage2Data.
9.5. THIRD PARTY SOFTWARE: Notwithstanding anything to the contrary contained in this Agreement, any Third-Party Software included in the Licensed Software, Appliance Software, or licensed as a standalone product is subject to the terms and conditions of any end user license agreement or additional terms accompanying such software. If the Licensed Software includes Microsoft Corporation’s WinPE software and related utility programs (“WinPE”), Customer may only use WinPE as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, and installation, test and/or configuration utilities program and not as a general-purpose operating system product. Customer understands that WINPE contains a security feature that will cause the computer system to reboot without prior notification to the end-user after twenty-four (24) hours of continuous use.
9.6. CONFIDENTAILITY OBLIGATIONS: Each party (each a “Recipient” in this case) acknowledges that, in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party (each a “Discloser”). Confidential Information disclosed pursuant to this Agreement will be subject to the terms of this Agreement during the Term and for two (2) years following termination or expiration of this Agreement, except for Customer Data, which will be subject to the terms of this Agreement indefinitely. Recipient shall take all reasonable steps to prevent the unauthorized disclosure of and maintain the confidentiality of the Confidential Information of Discloser. Recipient shall not disclose the Confidential Information of Discloser to any employees or third parties except to employees (including independent contractors), subsidiaries and consultants of Recipient who have at least an equivalent confidentiality obligation to Recipient and who have a need to know such Confidential Information on condition that Recipient shall be liable for any breach by such individual or entity. However, the parties acknowledge and agree that, notwithstanding such measures taken to prevent unauthorized disclosure, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Confidential Information. Accordingly, Recipient cannot and does not (and nothing in this Section or this Agreement is intended to) guarantee the privacy, security, or authenticity of any information so transmitted over or stored in any system connected to the Internet. The Confidential Information disclosed by Discloser may only be used by Recipient as necessary to perform its obligations or exercise its rights under this Agreement.
9.7. AUTHORIZATION TO RELEASE DATA: Notwithstanding anything to the contrary contained in this Agreement, if Customer requests Stage2Data to provide assurances to any governmental agency, regulatory organization or similar institution, including without limitation, the U.S. Securities and Exchange Commission and the Financial Institution Regulatory Authority (collectively, “Regulatory Agencies”) regarding the services provided by Stage2Data, Customer authorizes Stage2Data to furnish to such Regulatory Agencies all data, e-mail and other records stored by Customer on Stage2Data servers or routed through Stage2Data exchange servers. Further, Customer authorizes Stage2Data to provide to the Regulatory Agencies assurances that Stage2Data will comply with any requests for data belonging to Customer received from a Regulatory Agency. Customer agrees to indemnify and hold harmless Stage2Data from and against any and all claims relating to or arising from Stage2Data’s compliance with this provision or release of such data.
9.8. EXCEPTIONS: The Confidentiality obligations set forth herein will not apply to any information that:
9.8.1. is or becomes generally available to the public or within the industry to which the information relates other than as a result of a breach of this Agreement;
9.8.2. was known to Recipient prior to receipt from Discloser, provided such prior knowledge can be substantiated by documentary evidence antedating the disclosure by Discloser;
9.8.3. is disclosed to Recipient by a third party (other than employees or agents of either party) which in making such information available to Recipient, is not in violation of any obligation of confidentiality to Discloser; or
9.8.4. is independently developed by Recipient, provided such independent development can be substantiated by documentary evidence.
9.8.5. A disclosure of Confidential Information in response to a valid order by a court or other governmental body, or otherwise required by law, will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Recipient will provide prompt written notice thereof to Discloser to enable Discloser to seek a protective order or otherwise prevent such disclosure.
10. WARRANTIES
10.1. APPLICATION OF WARRANTIES
The Customer has sole ownership over the data and Stage2Data has no proprietary interest therein. “Customer Data” is defined solely by the Customer who has the initial and ongoing ability and responsibility to select the data and files covered by Stage2Data services. Customer agrees that the Customer is solely responsible for the content of all communications it makes while using Customer’s account and all Customer Data it processes using the Subscription Services or Other Services. Customer agrees that Users will not use the Subscription Services or Other Services to communicate any message or material that:
10.2. DATA SECURITY Stage2Data warrants to Customer that:
10.2.1. Customer will be provided with a tested procedure that safely transmits the Customer’s data to Stage2Data servers via software that uses Advanced Encryption Standard where applicable.
10.2.2. Customer’s data will be stored at one, or two, depending on the Services purchased, of Stage2Data’s Tier 3 Data Centers.
10.2.3. All of Stage2Data’s Data Centres are located in Canada and the United States.
10.3. LICENSED SOFTWARE:
10.3.1. POST WARRANTY: Stage2Data provides all third-party software and Microsoft software “as is” without warranties of any kind, although the third-party suppliers of such software may provide their own warranties directly to cCustomer. Stage2Data makes no warranty that the licensed software will run properly on all hardware, that the licensed software, subscription services or other products will meet the needs or requirements of Customer or its users or will operate in the combinations that may be selected for use by Customer or its users, that the licensed software or subscription services will be uninterrupted or error free, or that all errors will be corrected.
10.3.2. MICROSOFT LIABILITY: To the maximum extent permitted by applicable law, neither Microsoft Corporation nor any of its affiliates shall be liable to Customer for any claims or amounts relating to WinPE or other Microsoft software licensed pursuant to this Agreement. Further, Microsoft Corporation and its affiliates will not provide Customer with any customer support for WinPE or other Microsoft software licensed pursuant to this Agreement.
10.4. HOSTING SERVICES WARRANTIES: Stage2Data warrants to Customer that it provides a 99.9% uptime guarantee on an annual basis for power, hardware, networking, storage and VMware hypervisor against unscheduled downtime. Stage2Data does not provide any guarantees above the hypervisor level including but not limited to Customer operating systems, software applications, etc. Stage2Data will endeavor to provide maximum uptime, but is not responsible for any downtime caused by the Customer. Within any annual service period for each cumulative hour of unscheduled downtime or fraction thereof in excess of 99.9 Uptime, at the Customer’s request Customer’s account shall be credited for the pro-rated charges for one day of the monthly fee for the hosting service.
10.5. HARDWARE WARRANTIES: Stage2Data will transfer, pass along and upon the request of Customer assert for the benefit of Customer, at Customer’s cost and expense, any warranties of the manufacturer or other commitments or obligations of the manufacturer.
11. LIABILITY:
11.1. LIABILITY:
For any breach of the Service Warranties contained in Section 10, the Customer’s sole and exclusive remedy and Stage2Data’s sole and exclusive liability, will be for Stage2Data to re-perform the Services and if after a reasonable number of attempts, Stage2Data is unable to provide the Services in compliance with the warranty, Customer may terminate the affected services and if applicable, the Subscription Services or Other Services to which the affected Support Services apply. Any claim under this warranty must be made within thirty (30) days after delivery of the non-compliant services.
11.2. LIMITATIONS ON LIABILITY:
11.2.1. EVENTS BEYOND CONTROL OF STAGE2DATA: Stage2Data will not be responsible for any natural disaster, acts of God or other events that are beyond the control of Stage2Data which result in impaired functionality of any Server Systems.
11.2.2. CUSTOMER BREACH OF SECURITY: In no event will Stage2Data be liable for any loss of Customer Data or other claims to the extent the same arose from unauthorized access to the Customer’s account by obtaining a Password or encryption key caused by a negligent or an intentional act or omission of Customer.
11.2.3. LOSS OF PROGRAMS OR DATA: With the exception of gross negligence, neither Stage2Data, nor its authorized agents or representatives shall have any liability for any programs or data used with the Software, including with limitation any loss of programs or data of any kind or the costs of recovering such programs or data. The Customer further agrees that, in no event, shall any liability on the part of Stage2Data or its authorized agents or representatives exceed, in the aggregate, the total amount of one (1) month of managed service fees actually paid by the Customer to Stage2Data under this Agreement.
11.3. CAUSES OF ACTION: The foregoing limitations apply to all causes of action in the aggregate, including without limitation, breach of contract, breach of warranty, indemnification, negligence, strict liability, misrepresentation and other torts, and statutory claims. Each of the parties acknowledges that it understands the legal and economic ramifications of the foregoing limitations, and that the foregoing limitations allocate the various risks between the parties and form an essential part of the agreement of the parties.
11.4. NO INDIRECT OR CONSEQUENTIAL DAMAGES: Except for breaches of Confidentiality as defined in this Agreement , in no event, shall Stage2Data or its authorized agents or representatives, be liable to the Customer, or the Customer’s customers, or any other party for any direct, indirect, special, economic, consequential (including without limitation, lost profits), or incidental damages arising out of the use, the results of the use, or inability to use the software and services, even if Stage2Data has been advised of the possibility of such damages or claims.
12. INDEMNIFICATION
12.1. BY STAGE2DATA: Subject to Sections 12.3 and 12.4 below, Stage2Data shall defend any Claim brought against Customer or its Indemnified Parties by any third party alleging that the Products (excluding Third Party Software and Hardware) infringe, misappropriate or violate that party’s patent rights, trademark rights, copyright rights or rights under trade secret laws, each as recognized in the United States or Canada. Stage2Data shall pay all damages and costs awarded against Customer and its Indemnified Parties, by judgment or in settlement, in connection with such a Claim as well as any costs incurred by Customer in response to a request by Stage2Data to assist with the defense of the Claim. Stage2Data will have no responsibility or liability for such Claims to the extent such Claim is based upon:
(a) any use of any part of the Products after notification to discontinue use; (b) modifications of the Products not made or authorized by Stage2Data; (c) use of the Products in combination with any products or services not supplied by Stage2Data; (d) Third Party Software; (e) Hardware; or (f) any use in violation of this Agreement or misuse or unauthorized use of the Products. Customer understands and agrees that Stage2Data has no control over the particular conditions or circumstances under which Customer uses the Products and that Stage2Data shall not incur any liability as a result thereof.
12.2. BY CUSTOMER: Subject to Section 12.3 below, Customer shall defend and indemnify against any Claim brought against Stage2Data or its Indemnified Parties by any third party arising from or related to Customer’s: (a) violations of law or regulations in connection with the use of the Products; (b) actual or alleged infringement of a third party’s Intellectual Property Rights (except to the extent such infringement is covered by Stage2Data’s indemnification obligations as set forth in Section 12.1 above); (c) failure to encrypt Customer Data; or (d) business operations. Customer shall pay all damages and costs awarded against Stage2Data and its Indemnified Parties, by judgment or in settlement, in connection with such a Claim as well as any costs incurred by Stage2Data in response to a request by Customer to assist with the defense of the Claim.
12.3. INDEMNITY CONDITIONS: Each party’s indemnification obligations are contingent upon the indemnifying party receiving: (a) prompt written notice of the Claim; (b) all reasonably necessary assistance, information and authority to defend the claim and perform its obligations under this Section; and (c) sole control of the defense and settlement of such claim and all associated negotiations. The indemnifying party agrees not to settle any claim, action, suit or proceeding for which it is indemnifying the other in a manner that would impose additional obligations on the other party without first consulting the other and obtaining its consent thereto (which shall not be unreasonably withheld or delayed); however, such consent shall not be required where the settlement results in the full and unconditional release of all claims against and obligations of the indemnified party. An indemnified party may, at its option and expense, participate in the defense or settlement of any Claim, provided that the indemnifying party retains control over the defense or settlement thereof.
12.4. STAGE2DATA’S OBLIGATION FOR INFRINGEMENT INDEMNITY: If an infringement claim within the scope of Section 12.1 is made or appears likely to be made, Customer agrees that Stage2Data may, in its sole discretion and at its expense: (a) enable Customer to continue to use the affected portions of the Products; or (b) replace or modify the Products so that it is non-infringing and substantially equivalent in function to the allegedly infringing Products. If Stage2Data determines that none of these alternatives is reasonably available, then Stage2Data may terminate this Agreement in whole or with respect to the affected portions of the Products. In such case, with respect to any perpetual license for Licensed Software, Stage2Data shall refund to Customer the license fees paid by Customer for the affected Licensed Software less a reasonable allowance, as determined by Stage2Data in their sole discretion, for the period of time Customer has used the Licensed Software.
12.5. ENTIRE OBLIGATION: The indemnification obligations set forth in this section 12 are each party’s entire obligation and liability from or related to this agreement regarding third party claims.
13. DEFINITIONS
13.1 “Encryption Key” refers to a secure code used to encrypt and decrypt data, ensuring that information remains protected and accessible only to Customers and authorized users.
13.2. “Hardware” refers to the physical equipment, devices, and components, such as servers, storage systems, and networking equipment, provided by or through Stage2Data.
13.3. “Products” refers to any software, hardware, or related deliverables provided by Stage2Data under the Proposal, including but not limited to applications, tools, systems, and equipment, whether developed or licensed, that are made available to the Customer as part of the Services.
13.4. “Software” or “Licensed Software” refers to the software outlined in the Proposal which is provided by Stage2Data to the Customer under the terms of this Agreement, for which the Customer is granted a non-exclusive, non-transferable right to use, subject to any limitations or restrictions specified in this Agreement.
13.5. “Warm Site” means a disaster recovery facility maintained by the service provider, equipped with necessary infrastructure and hardware, where customer data can be restored and services can be resumed after a disruption.
14. GENERAL:
14.1. SURVIVAL: Sections 7 through 12, will survive the termination or expiration of this Agreement and any other provisions of this Agreement that by reasonable interpretation are intended by the parties to survive the termination or expiration of this Agreement.
14.2. WAIVER: No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
14.3. SEVERABILITY: If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any invalid provision will be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent and economic terms of the invalid provision.
14.4. ASSIGNMENT: Neither party will indirectly or directly transfer or assign any rights under this Agreement, in whole or part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, assign this Agreement to a subsidiary or affiliated entity as part of a divestiture, corporate reorganization or consolidation or to another party in connection with a merger, acquisition, or sale of substantially all assets or stock to which this Agreement relates, provided the successor agrees in writing to assume all of the assigning party’s obligations hereunder. Any assignments contrary to this Section 14.4 will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, all or certain portions of the Products sold or licensed under this Agreement may be provided by a subsidiary of Stage2Data or subcontractor. Stage2Data agrees that it will be responsible for its subsidiaries and subcontractors and their performance under this Agreement.
14.5. COMPLIANCE WITH LAWS: Each party shall be responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and this Agreement and agrees to comply with all such laws, regulations and other legal requirements. Further, Customer warrants and represents that it will use the Products in full compliance with applicable laws and avoid any violations of third-party rights, including, without limitation, data privacy rights. Stage2Data retains the right to delete or block access to any data if there are concerns regarding potential violations of privacy laws or third-party rights by Customer. If Customer uses Products for the storage of personal data and Stage2Data gains access to such data in the context of hosting such data or relating to service requests, Stage2Data shall process such data on behalf of Customer and only in accordance with instructions from Customer (as a data processing service Stage2Data).
14.6. INTERNATIONAL TRADE COMPLIANCE: The Products, including any Third-Party Software, are subject to the customs and export control laws and regulations of the United States and Canada and any country in which the Products are manufactured, received or used. Further, under Canadian law, the Products may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end- user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. Customer will comply with these laws and regulations and shall ensure that any person to which Customer requests Stage2Data to route Product directly has been made aware of the associated export controls.
14.7. FORCE MAJEURE: Except for Customer’s payment obligations for the Products and Services, neither party will be liable for any failure or delay in performance under this Agreement which might be due in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of, any nature beyond the reasonable control of such party, including, without limitation, fire, earthquake, storm, flood, power outage, strike, war, act of terrorism, law, export control regulation, instructions of government authorities or judgment of a court (not arising out of breach by such party of this Agreement). If, however, a party’s performance is prevented for thirty (30) days or more, then the other party will be entitled to terminate these Product Terms on written notice to the party suffering the force majeure at any time prior to resumption of performance by the party suffering the force majeure.
14.8. INSPECTIONS: Customer will permit Stage2Data or its representatives to review Customer’s relevant records and inspect Customer’s facilities and systems to ensure compliance with this Agreement. Stage2Data will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations.
14.9. GOVERNING LAW, ARBITRATION AND JURISDICTION: This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. Any disputes, controversies, or claims arising out of or in connection with this Agreement, including its breach, interpretation, or termination, shall be resolved through virtual arbitration conducted in accordance with the rules of the agreed-upon arbitration institution. The arbitration shall be conducted under the laws of the State of New York. Notwithstanding the foregoing, in the event that either party elects to litigate any matter, the parties irrevocably attorn to the exclusive jurisdiction of the courts of Ontario, Canada, and agree that any litigation shall be governed by and construed in accordance with the laws of the Province of Ontario.
14.10. LEGAL FEES: In the event any lawyer is employed by any party to this Agreement with regard to any legal action, arbitration or other proceeding brought by any party for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, then the party or parties prevailing in such proceeding, whether at trial or upon appeal, will be entitled to recover reasonable legal fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled.
14.11. NOTICES: All notices, consents and approvals under this Agreement must be delivered in writing by e-mail, by courier, by overnight mail service or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for Customer set forth in the signed Proposal (or if none is specified, that address to which Stage2Data sends invoices) and for Stage2Data, to Stage2Data’s Legal Department at 2305 Wyecroft Rd, Suit 200, Oakville, Ontario, Canada, or [email protected], and will be effective upon receipt. Either party may change its address by giving written notice of the new address to the other party in writing.
14.12. MARKETING: Customer agrees that Stage2Data may use Customer’s name and logo to identify Customer as a customer of Stage2Data on Stage2Data’s websites, and as a part of a general list of Stage2Data customers for use and reference in Stage2Data’s corporate, promotional and marketing literature, subject to Stage2Data obtaining Customer’s prior written permission in each instance.
14.13. PRESS RELEASE: In the event that Stage2Data wishes to issue a press release announcing the existence of the relationship between the parties and the nature of this Agreement, Stage2Data will provide such press release to Customer for Customer’s written approval and consent. Such approval and consent will be in Customer’s sole discretion. No other press releases that mention the other party shall be issued without the other party’s prior written approval.
