IMPORTANT: READ THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE "I AGREE" BUTTON OR USING THE SERVICE.

Definitions:

(a) "Supplier" is Storagepipe Solutions Inc., its parent company or one of its subsidiaries or resellers, and any third-party suppliers of software, hardware or services related to the Services and is referred to herein as "Supplier" "we," "us," or "our." Supplier address for written communications is 3080 Yonge St. , Suite 6000, Toronto, ON .

(b) You, as the user or account holder, are referred to herein as "you," "user," "subscriber," "client," or "customer." "You" and "Your" refer either to an individual person or to a single legal entity.

These terms of service ("Terms") are a legal agreement between you, either an individual or a single legal entity, and Supplier. These Terms govern your use of any Supplier online services ("Services"), the Supplier websites and customer portals (“Site”), Supplier hardware or equipment (“Equipment”), the client software distributed with this Agreement and any other software provided by Supplier, including any updates and any accompanying documentation ("Software"). Collectively, the Software, the Site, the Equipment and the Services may be referred to as the “Products.”

By clicking the “I AGREE” or similar button, or using any Products, you are indicating that you have read and understood and agree to be bound by these Terms and the Supplier Privacy Policy mentioned in Section 7 below. If you do not agree to these Terms or the Privacy Policy, then do not click the button indicating your acceptance and do not use the Products. If you agree to these Terms on behalf of a legal entity, you represent that you have the authority to bind that legal entity to these Terms.

The date on which you click “I Agree” or start use of the Products shall be the Effective Date.
If you do not agree to these Terms, you are not granted any rights whatsoever in the Products or any right to receive services.

If you are not willing to be bound by these terms and conditions, you should not click "I AGREE" and must return or destroy all copies of the Software promptly.

This service agreement sets out the terms and conditions under which Supplier will provide to you, the data storage services, data protection services and other subscription services specified and described in this Agreement and in further service schedules or orders placed by you and which specifically reference this Agreement. This Agreement incorporates by reference the terms of Supplier’s Service Level Agreement (“SLA”). The terms and conditions on the following pages, the SLA, and any schedules, service orders by you, any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by Supplier are an integral part of this service agreement (collectively, the "Agreement"). This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to its subject matter and supersedes any and all other prior or contemporaneous agreements or other representations or warranties. By accepting this Agreement, you have executed and agree to be bound by this Agreement as of the Effective Date.

1. Our Services
(a) General.

You must register with Supplier to use the Services, and you agree to keep your registration information accurate, complete and up to date as long as you continue to use the Services. Supplier may offer a free or trial account with limited storage capacity or limited time use (“Free Account”) and various fee-bearing accounts or service plans offering larger storage capacities and other feature enhancements (“Paid Accounts”). If you sign up for a Paid Account, you agree to pay the fixed subscription and variable usage-based fees, if any, for the account type and service plan you have selected and agree to any applicable restrictions, including quotas on the amount of storage you are allowed to use. If you exceed any quota allocated to your account, you agree that Supplier may restrict your ability to backup or store further data until you reduce your storage usage or sign up to another type of account or service plan with a higher quota or no quota at all.

Subject to this Agreement, we will provide the Services to you in accordance with the corresponding service levels set forth in the Agreement (the "Service Levels"). Other services that may be introduced by us and that you agree with us to use will be considered a Service and will be subject to this Agreement. Some of our Services require the installation of certain equipment, software or related documentation on your computers or applications. If required for use of the Services, we will advise you and you will install the Software, Equipment or documentation on your computers, applications, SaaS services or devices. You agree to accept notices electronically. Each time you use a Product, you reaffirm your acceptance of the then-current Terms. If you do not wish to be bound by these Terms, you may discontinue using the Products. You cannot use or sign up for Services until you have accepted these Terms.

(b) Supplier Software. If you install Supplier Software on your computers, hosted systems/platforms or devices, we hereby grant to you, subject to this Agreement, a non-exclusive, non-transferable license ("License") to use an object code copy of the computer programs comprising the Supplier Software so installed during the term of this Agreement. The Software is owned by Supplier and/or its third party providers and is copyrighted and licensed, not sold. You may only use Software on the computers/devices/systems on which it was installed and registered with us, and shall use the Software only for the purposes of using the Services for your own data and your own internal business purposes. If You acquire the Software as a program upgrade, after You install the upgrade You may not use the Software from which You upgraded or transfer it to another party. Title to and ownership of all rights in and to the Software and Products, including copyright and all other intellectual property rights, will at all times remain with us or our licensors. You acquire no right to use the Software or Products except in accordance with the terms of this Agreement.

Any Software or Equipment you have installed may periodically check with Supplier for updates, and you agree that Supplier may automatically download and install such updates on your devices/systems.

(c) Support. So long as you have paid the applicable Fees when due, we agree to: (i) deliver to you all new releases, corrections, enhancements and improvements to the Software as the same are released by us to our customers generally as part of maintenance services; and (ii) you may use our customer support services for reasonable assistance in identifying and resolving problems with the use of the Services. Support does not include: (i) new Supplier software, services or options sold separately by us; and (ii) any services related to support calls from you where the problem proves to be a problem not attributable to the Services or the Products.

2. Modifications

(a) Changes to the Agreement, Service Levels and Fees. We may change some or all of the Agreement, the services we offer, and the rates we charge for such services from time to time in our sole discretion without liability to you. If and when we make a material change to any of the foregoing, we will advise you by sending you an e-mail advising of the change at the most recent e-mail address we have on record for you; or advise you of the change upon your next use of the Service after the change; or by a posting on the Supplier website. Any such change will become effective no less than 30 days after such notice is given in accordance with the notice provisions set forth in this Agreement. If you disagree with such change, you will be given an opportunity to advise us of your disagreement within such 30-day period, either by reply e-mail or through our website. You agree to the new posted Terms of Use by continuing your use of the Products. If you do not agree with the modified Terms of Use, your only remedy is to discontinue using the Products and cancel your service. We reserve the right to terminate this Agreement and all use of the Services by you at the end of such 30-day period if you do not accept such change.

(b) Changes to the Services. We may add, modify or discontinue any aspect of the Services (such as, but not limited to, upgrades of equipment, software and communication protocols used to provide the Services) in our sole discretion. However, we will not eliminate or reduce any material function or feature of the Services, including Service Levels, without prior notice to you in accordance with Section 2(a) or our SLA.

3. Fees

You agree to pay us fees for installation, configuration and other equipment and services, monthly fees based on your usage of the Services and other amounts as set forth in your order or contract for Services ("Order") and in this Agreement or as otherwise set out in your purchase through an authorized reseller such as IBM Cloud (collectively, the "Fees").

4. Use of the Services

(a) General Conditions of Service. The provision of Services is conditional upon your acceptance of and agreement to be bound by this Agreement, your submission of true, complete and accurate Registration Information (as defined in Section 5(b)) and the performance of your obligations as set out in this Agreement, including but not limited to the specific responsibilities identified in Section 4(d) and responsibilities identified as part of your Order for Services. We reserve the right to limit, restrict or decline any application or offer to use the Services in our sole discretion.

(b) Your Computer and Devices. You are responsible for all hardware, software and services that are necessary for you to access and use the Services ("Your Systems") other than Supplier Products. This includes, for example, your computers or other systems/platforms, their operating systems and Internet connectivity or other networking services for which you may be required to pay fees to a third party. We are not responsible for any of the foregoing. We reserve the right to modify the Services in accordance with Section 2(b) to add new features, implement new technologies or for other reasons and as a result, you may be required to replace or upgrade some or all of Your Systems from time to time in order to continue using the Services. All replacements or upgrades to Your Systems are your sole responsibility.

(c) Account Administrator. You agree that the individual identified on your account during the ordering process shall be your your Account Administrator (as may be changed in accordance with this Section) and is and will continue to be at all times fully authorized by you to act on your behalf. We will be entitled to rely on all communications, instructions and notices received from Account Administrator as valid and binding upon you. Without limiting the generality of the foregoing, you agree that Account Administrator may do any of the following on your behalf: (i) provide instructions and receive notices and/or communications in respect of the Fees or Services; (ii) communicate and/or approve all additions, deletions and modifications to the Services or Fees; (iii) read, retrieve, delete, transmit and otherwise access Your Data as stored using the Services; and (iv) provide updated or modified Registration Information. You (if you are an individual), your Account Administrator or any of your officers who have authority to execute binding contracts for you (if you are a legal entity) may designate another individual as your Account Administrator by giving us 15 days’ prior written notice. You acknowledge that we can continue to rely on the authority of the current Account Administrator during such 15-day period. You understand and acknowledge that access to Your Data and restrictions on such access will be under your control. You acknowledge that you are responsible for monitoring the usage of services and storage capacity you use through the Services and it is your responsibility to advise us in advance and in writing or through a new Order of any increases in usage or capacity that you may require.

(d) Cooperation and Assistance. You agree to: (i) properly configure Your Systems in accordance with the technical and other specifications provided to you by us prior to installation of Products; (ii) provide reasonable access to and technical assistance with Your Systems in order to assist you with installation and configuration of the Software and Services; (iii) provide further information regarding the configuration of Your Systems as may be reasonably required by us to provide customer support for your use of the Products and the Services; (iv) notify us in advance and in writing of all material changes to Your Systems (including but not limited to Registration Information) from time to time and specifically as part of any customer support request; and (iv) provide all other cooperation and assistance set forth in this Agreement in respect of the Services. You acknowledge that the installation and configuration of Products and Services may require certain components of Your System, including but not limited to server computers, to be offline during such installation. Failure to provide reasonable assistance in accordance with the foregoing may result in additional time, materials and expenses incurred by us. You agree to pay any additional fees and expenses resulting from such failure upon written notification to you that such assistance has not been provided by you.

(e) Your Data. You hereby grant us and our agents a royalty-free, non-exclusive license to use, store, copy and transmit Your Data for the sole purpose of providing Services to you in accordance with this Agreement. Except as explicitly set forth in this Agreement, we do not assume any responsibility or obligation for Your Data including, but not limited to, any obligation to review or monitor Your Data.

You agree that you have obtained all necessary rights and licensees to any such content or data.

If we receive an order from a court, governmental or regulatory authority to disclose or remove Your Data, if not prohibited from doing so, we will notify you of such order. In such event, we reserve the right to disclose or remove Your Data, provided our disclosure or removal is limited to the extent required to comply with such order.

(f) Conduct. You agree that you: (i) will comply with all applicable laws, rules and regulations in your activities related to, the use, storage and retrieval of Your Data through the Services; and (ii) will not use the Services for any unlawful purpose or in any unlawful manner, or in any manner which is otherwise contrary to or violates any applicable laws, rules, regulations and professional codes or the rights of any third party.

(g) Prohibited Activities. You must not, nor may you allow, encourage, promote or advise others to, directly or indirectly: (i) other than for backup purposes, copy, download or otherwise save to any storage device or fix in any medium, any software (including the Supplier Software), information or other materials created, developed or licensed by us ("Our Materials") excluding, for greater certainty, Your Data; (ii) sell, resell, reproduce, publicly display, perform, distribute, create derivative works, decompile, reverse engineer, modify or attempt to modify Our Materials in any way, or otherwise use Our Materials for any public purpose; (iii) transfer or disclose Our Materials to any other person without our prior written consent; (iv) use the Services in any manner that could damage, disable, overburden or impair the Services; (v) interfere with the security of, or otherwise abuse, the Services, system resources, accounts, servers or networks connected to or accessible through the Services; (vi) disrupt or interfere with any other person’s use or enjoyment of the Services; (vii) transmit through the Services: (A) any virus, trojan horse, worm, backdoor, shutdown mechanism or any similar software, code or program which is intended to, is likely to or has the effect of disabling, denying access to, damaging or destroying, corrupting or affecting the normal use of the Services or any data, software or equipment used in conjunction with the Services; (B) any material that is or is reasonably likely to be construed as deceptive, fraudulent, libellous, defamatory, threatening, intimidating, abusive, harassing, violent, degrading, obscene, pornographic, profane, harmful or injurious to individuals, tortious or that may otherwise result in criminal, regulatory or civil liability; (C) any material that is or is reasonably likely to contravene any applicable law; or (D) any material that infringes or violates any agreement, intellectual property rights including copyright, trade-secret, patent, or trade-mark rights, moral rights, publicity rights, privacy rights, fiduciary obligations or other rights of a third party (collectively, "Third Party Rights"); (viii) use or attempt to use another individual’s account, password, service, system or other information or create or use a false identity, impersonate any person or otherwise misrepresent your identity; or (ix) attempt to obtain unauthorized access to the Services or portions of the Services which you are restricted from accessing.

5. Representations and Warranties

(a) We warrant that we are authorized to grant the License to you and to provide you the Services. We also warrant that we will provide the Services in accordance with the Service Levels. In the event the Services Levels are not met, your sole and exclusive remedy and our sole obligation will be to provide you with service level to the extent available and credits set out in the SLA. The calculation of Service Levels will exclude unavailability or service failures relating to: (a) scheduled maintenance, upgrades and system service time; (b) any unavailability caused directly or indirectly by your acts or omissions or resulting from Your Systems; (c) your failure to provide timely and accurate Registration Information or updates thereto; and (d) events set forth in Section 11. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND SUPPLIER SHALL NOT BE LIABLE OR RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY AND ALL OTHER, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, SATISFACTORY QUALITY AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SUPPLIER OFFERS NO OTHER ASSURANCES, GUARANTEES OR WARRANTIES THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS (INCLUDING BUT NOT LIMITED TO ANY DETERMINATION THAT THE STORAGE CAPACITY LIMITS YOU SELECT ARE SUFFICIENT OR APPROPRIATE FOR YOU); (II) ALL FILES AND DATA ON YOUR SYSTEMS WILL BE BACKED UP OR THE SERVICES WILL BE ERROR-FREE OR PROVIDED ON AN UNINTERRUPTED OR CONTINUOUS BASIS; (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. SUPPLIER IS NOT OBLIGATED TO REVIEW THE COMPLETENESS, ACCURACY OR ANY OTHER ASPECT OF ANY INFORMATION PROVIDED OR PROCESSED THROUGH THE SITE OR THE SERVICES, INCLUDING YOUR DATA.

(b) You hereby represent, warrant and covenant to us that: (i) you are and will be free to enter into, and to fully perform your obligations under this Agreement and that no agreement or understanding with any other person exists or will exist which would interfere with such obligations; (ii) this Agreement constitutes a legal, valid and binding obligation upon you, enforceable against you in accordance with its terms and conditions; (iii) there is no outstanding litigation, arbitration or other dispute to which you are a party which if decided unfavourably to you could have a material adverse effect on your ability to perform your obligations under this Agreement; (iv) the usage, storage and transmission of Your Data through the Services does not and will not infringe or violate any Third Party Rights; (v) you have obtained and will obtain all necessary rights and consents to use, store, copy and transmit Your Data including all personal information contained herein using our Services and to grant us the license to use Your Data as set forth in Section 4(e) above; and (vi) you have provided or will provide to us true, accurate, complete and current information about yourself and Your Systems including information contained in any web-based registration and account management process or Customer Engagement Document ("Registration Information") and will update Registration Information to ensure that it is at all times true, accurate, complete and current. Any personal information you submit will be subject to our privacy policy. You agree that we may take reasonable steps (including, but not limited to any steps required by applicable laws) to confirm your identity and all related Registration Information.

6. Intellectual Property

You acknowledge that Supplier or third parties own all right, title and interest in and to the Products, portions thereof, or software or content provided through or in conjunction with the Software or Services, including without limitation all intellectual property rights. Nothing in this Agreement transfers to you or, except as set out expressly herein, licenses to you any right to use Our Materials. Except for the license granted in this Agreement, all rights in and to the Products are reserved, and no implied licenses are granted by Supplier.

The Supplier Products and its structure, organization, source code, and documentation contain valuable trade secrets of Supplier and its licensors or third parties, and accordingly you agree not to (and agree not to allow third parties to (1) sublicense, lease, rent, loan, transfer, or distribute the Software, or any portion of the Products and/or Service or any derivative thereof to any third party, (2) modify, adapt, translate, or prepare derivative works from the Software, Site or Service, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software, Site or Service, (4) extract portions of the Software's files for use in other applications, or (5) remove, obscure, or alter Supplier’s or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Products or Service.

You acknowledge that certain third-party code or software may be provided with the Software or Products and that license terms accompanying that code or software, and not the terms of this Section, will govern its use.

7. Confidentiality

(a) You and we agree that material and information of the other which has or will come into the possession or knowledge of each in connection with this Agreement may include confidential information, the disclosure of which to or use by unauthorized parties could be damaging. You agree that the Supplier Software and the configuration and methodology of service provision constitutes such confidential information. Each party agrees to use at least reasonable commercial efforts to protect the confidentiality of, and prevent the unauthorized disclosure of, any confidential information of the other, which comes into its possession. Confidential information does not include information which is generally known or available to the public. Each party will use its best efforts to prevent its employees, agents or subcontractors from using or disclosing such information to any unauthorized party or for any unauthorized use.

(b) Identification Codes and Passwords. You will be issued an identification code and password to access the Services. Depending on the Services for which you have subscribed, you may be able to access the information, materials and records that you may transmit to us through the Services ("Your Data") using this identification code and software. You must treat your identification code and password as confidential. Confidential treatment includes, but is not limited to: (I) not disclosing you identification code or password to anyone else; and (ii) not using your identification code or password for any unauthorized purpose. Only one individual may use each identification code and password. You are responsible for all use of the Services under your identification code and password and any additional identification codes and passwords you request. This would include responsibility for any Fees incurred using such identification codes and passwords. If the confidentiality of any identification code or password is compromised, you must inform us as promptly as possible. We are entitled to rely upon all instructions received by us using each identification code and password as authentic, valid and fully authorized instructions. We are not responsible for unauthorized or improper use of any identification code or password and we do not assume any responsibility or obligation to monitor or review the use of any identification code or password, other than logging the usage of each identification code to access the Services for billing purposes. You must notify Supplier immediately of any unauthorized use of your accounts, identification code or password or any other security breach related to the Service. If you lose your password or the encryption key for your account, you may not be able to access Your Data.

7. Privacy

(a) You agree that Supplier’s collection, use and disclosure of your personal information, backup data or any other data will be governed by Supplier’s Privacy Policy (as shown on Supplier website) and the laws generally applicable to Supplier as a provider of the Services, including breach notification laws. Unless specifically agreed otherwise in writing by Supplier, you agree to be solely responsible for compliance with laws applicable to any such information or data and your use of the Services, including any laws that apply to your business or industry.

8. Indemnities

(a) You agree to defend, indemnify and hold Supplier, our affiliates, suppliers, resellers, partners and agents (and the officers, directors and employees thereof) harmless from and against any and all claims, actions, liabilities, damages, losses, expenses or demands, including, but not limited to, reasonable legal and accounting fees, resulting from or related to: (i) your acts and omissions or your breaches of this Agreement; or (ii) loss or damage suffered by any third person related to the Service, Your Data, or unauthorized use of your identification codes and/or passwords; (iii)your use of the Products; (iv) your violation of these Terms; (v) your violation of any third party right, including any intellectual property right; or (vi) any claim that use of your data caused damage to a third party. This indemnity obligation will survive the termination or expiration of your account and these Terms.

(b) We, at our own expense, will defend and hold you harmless from the damages and costs awarded by a court in respect of any suit or proceeding brought against you in either Canada or the United States of America based on the location of your Agreement that is based on a claim that the Supplier Software infringes the copyright of a third party if we are notified in writing promptly of your receipt of notice of the claim and we are given the necessary authorization, information and full co-operation and assistance by you for the sole defence of same. We will have the right to select counsel to defend any such action and settle any such claim. We will have no obligation with respect to any third party claim based upon: (i) use of other than a current unaltered release of the Software if the infringement would have been avoided by the use of a current unaltered release; (ii) resulting from modification of the Software by anyone other than us; or (iii) any combination of the Products with any hardware, software or data of any third party. If the Products or a part thereof is, in our opinion, likely to or does become the subject of a claim of infringement of the rights of a third party, we, at our option, may modify or replace it to make it non-infringing, procure the right to permit your continued usage of the Services or we may terminate this Agreement upon 30 days’ notice to you.

9. Disclaimers

(a) SUPPLIER SHALL NOT BE LIABLE AND ASSUMES NO RESPONSIBILITY FOR ANY LOSS OR DAMAGES ARISING FROM OR IN CONNECTION WITH: (I) ANYTHING RELATED TO YOUR SYSTEMS (INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO SECURE AND SAFEGUARD YOUR SYSTEMS, IDENTIFICATION CODES OR PASSWORDS); (II) ANY ACCESS, INABILITY TO ACCESS, FAULT OR FAILURE OF THE SERVICES CAUSED DIRECTLY OR INDIRECTLY BY YOUR SYSTEMS OR ANY THIRD PARTY SERVICE, SERVICE PROVIDER, NETWORK, INFORMATION, USER OR COMPUTING RESOURCE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, CORRUPTION OR DESTRUCTION OF YOUR DATA (INCLUDING BUT NOT LIMITED TO ERRORS IN OR FAILURES OF THE MEDIA OR STORAGE DEVICES USED TO STORE YOUR DATA); (IV) ANY USAGE OF USER OR STORAGE CAPACITY IN EXCESS OF THE USER OR STORAGE CAPACITY YOU HAVE REQUESTED AND ANY FAILURE OR ERROR IN THE SERVICES RESULTING THEREFROM; OR (V) ANY OTHER ACT OR OMISSION OF ANY THIRD PARTY.

(b) SUPPLIER WILL USE REASONABLE EFFORT TO SAFEGUARD YOUR DATA IN ACCORDANCE WITH STANDARDS USED FOR ITS OTHER CUSTOMERS GENERALLY. HOWEVER, NO SECURITY MEASURE IS OR CAN OFFER ABSOLUTE PROTECTION. CONSEQUENTLY, WE CANNOT REPRESENT OR WARRANT THAT YOUR DATA WILL BE SECURE AT ALL TIMES.

(c) YOU SPECIFICALLY AGREE THAT YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK, AND THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SUPPLIER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, SUPPLIER, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES MAKE NO WARRANTY THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE PRODUCTS WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE; AND (D) ANY DEFECTS OR ERRORS IN THE PRODUCTS WILL BE CORRECTED.

(d) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE PRODUCTS ARE NOT INTENDED OR SUITABLE FOR USE IN APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

(e) UNLESS OTHERWISE AGREED IN WRITING BY SUPPLIER OR AN AUTHORIZED RESELLER, SUPPLIER DOES NOT INTEND THAT YOUR USE OF THE SERVICES WILL CREATE ANY OBLIGATIONS TO COMPLY WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND ANY RELATED REGULATIONS (“HIPAA”), AND SUPPLIER MAKES NO REPRESENTATIONS THAT THE SERVICES SATISFY HIPAA REQUIREMENTS. IF YOU ARE A “COVERED ENTITY” OR “BUSINESS ASSOCIATE,” YOU AGREE NOT TO USE THE SERVICES IN CONNECTION WITH ANY “PROTECTED HEALTH INFORMATION” (AS THOSE TERMS ARE DEFINED IN HIPAA) UNLESS AGREED IN WRITING BY SUPPLIER OR AN AUTHORIZED RESELLER.

10. Limitations of Liability

(a) IN NO EVENT WILL SUPPLIER BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR RELIANCE DAMAGES (INCLUDING LOSS OF PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS OR LOSS OF OR LOSS OF USE OF DATA) WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD FORESEE SUCH DAMAGES. WE ARE NOT RESPONSIBLE FOR FAILURE TO FULFILL OUR OBLIGATIONS UNDER THIS AGREEMENT DUE TO CAUSES BEYOND OUR CONTROL INCLUDING BUT NOT LIMITED TO DELAY OR FAILURE OF PERFORMANCE OF A SUPPLIER OR SUBCONTRACTOR.

(b) THE MAXIMUM AGGREGATE LIABILITY OF SUPPLIER TO YOU UNDER OR RELATED TO THIS AGREEMENT WITH RESPECT TO ANY AND ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEES PAID IN THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM FIRST AROSE FOR THE SERVICES GIVING RISE TO SUCH CLAIM, EVEN IF THE CLAIM IS A CONTINUING ONE, LESS THE SERVICE LEVEL CREDITS TO WHICH CUSTOMER IS ENTITLED TO HEREUNDER.

(c) SUPPLIER SHALL BE LIABLE TO YOU AS EXPRESSLY PROVIDED IN THIS AGREEMENT BUT SHALL HAVE NO OTHER OBLIGATION, DUTY OR LIABILITY WHATSOEVER TO YOU. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, INFRINGEMENT OF PROPRIETARY RIGHTS (INCLUDING ANY INDEMNITY UNDER SECTION 8(B)) OR OTHERWISE AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OF CONTRACT OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF AN EXCLUSIVE REMEDY. YOU HEREBY ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATION OF REMEDIES SET FORTH IN THIS AGREEMENT ARE REASONABLE AND THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN YOU AND US AND THE LIMITED RECOURSE TO US PROVIDED FOR IN THIS AGREEMENT.

11. Force Majeure

If the performance by either party of any obligation under this Agreement, except for any obligation of payment, is prevented, restricted, or interfered with, by reason of (an act of "force Majeure"): fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labour disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the performing party, that party will be excused from such performance to the extent of such prevention, restriction or interference (an act of "Force Majeure").

12. Enforcement

You acknowledge and agree that irreparable injury may result to us if you breach any of the provisions in this Agreement and that damages may be an inadequate remedy in respect of such breach. You hereby agree in advance that, in the event of such breach, we will be entitled, in addition to such other remedies, damages and relief as may be available at law or in equity, to the granting of interlocutory and final injunctive relief.

13. Term, Termination, Suspension and Limited Access

(a) Term. The term of this Agreement will commence upon the earlier of the Effective Date and a start date specified in your Services contract and will continue during the Term set out in your Service order or in this Agreement (the "Initial Term") and will continue for successive one year terms or service plan terms as purchased (each a "Renewal Term") following the expiration of the previous Initial Term or Renewal Term, as the case may be, unless terminated by a Notice in writing no less than 30 days before the end of the Initial Terms or Renewal Term, as the case may be.

(b) Termination by Us. We may terminate this Agreement and your right to use the Products and the Services immediately without notice: (i) if you fail to pay any Fee or other amount within 10 days of written notice that such Fee or amounts are past due; or (ii) upon a material breach of this Agreement by you (other than payment) that is not cured within 20 days of notice thereof. We may also terminate this Agreement in the event of termination of service by one or more of our service providers, or for any reason whatsoever in our sole discretion upon 30 days’ prior written notice.

(c) Termination by You. You may terminate this Agreement immediately upon notice upon a material breach of this Agreement by us that is not cured within 20 days of notice thereof. You may terminate this Agreement at the end of your Initial Term or any Renewal term as indicated in 13(a).

(d) Results of Termination. Upon termination: (i) all outstanding Fees will be immediately due and payable; (ii) you will immediately cease use of the Software or Products and shall return it to us together with all related documentation and copies thereof within 5 days of the termination date; (ii) you will no longer be permitted to access the Services or any data (including any of Your Data) stored through the use of the Services following termination. Also, you specifically agree that Supplier has no obligation to provide you or anyone else with a copy of Your Data and may automatically purge Your Data from our systems. We will purge and erase online copies of Your Data no earlier than 5 days and no later than 120 days following termination, provided, however, that we reserve the right to retain offline archival copies of Your Data for a period not to exceed six months from the date of termination or, in the event of any dispute relating to this Agreement, for a period of 6 months from the final resolution thereof, after which all copies of Your Data in our possession or control will be erased or destroyed.

(e) Suspension of Access. We reserve the right to immediately suspend your access to the Services or terminate this Agreement if we reasonably believe that an identification code or password is being used, or Your Data is being accessed, modified or transmitted fraudulently or without proper authorization; (ii) if we reasonably believe that the continued provision of Services to you may result in harm or injury to a third party; (iii) if we reasonably believe that the continued provision of Services to you would violate any law, regulation, governmental order or the rights of a third party; (iv) if we receive an order to discontinue the provision of Services to you from a court, governmental or regulatory authority; (v) if the continued provision of Services to you prevents or materially interferes with use the Services by any other client; (vi) if you materially or repeatedly abuse the Services.

(f) Survival of Certain Obligations. The termination of this Agreement will not release either party from any obligation or liability accrued until such termination. The parties agree that Sections 4(c), 4(g), 6, 7, 8(a), 9(a), 10, 13(e), 14(b) and 15 will survive the termination of this Agreement.

14. Legal Proceedings and Arbitration

(a) Time for Proceedings. Any legal proceeding arising from or in connection with this Agreement, must be brought within 1 year after the event which is the subject of the proceeding has occurred.

(b) Arbitration. You agree that all disputes or disagreements between you and us arising from or relating to with this Agreement, (a "Dispute") will be settled by final and binding arbitration by a single arbitrator pursuant to the provisions of the Arbitration Act, 1991 (Ontario). Judgement upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow. The arbitration will take place in the Greater Toronto Area, Ontario, Canada. The arbitrator will: (i) not limit, expand or modify the terms of this Agreement nor award damages in excess of compensatory damages permitted under this Agreement, and you hereby waive any claim to such excess damages; (ii) not have any ability to award any equitable remedies against us; (iii) not have the right to award any damages in excess of damages that could lawfully be awarded by a court of competent jurisdiction and subject always to Sections 9 and 10; and (iv) will issue a written decision containing findings and conclusions on all significant issues. Each party will bear its own expenses and an equal share of all costs and fees of the arbitration. All participants, each of whom will be bound by an appropriate confidentiality agreement, will hold the content and result of any arbitration in confidence.

15. Choice of Law

If you are located and purchased the Service in Canada then the Services are operated and administered by us from data centers in the Province of Ontario, Canada ("Ontario”). If you use the Services from outside Ontario, you are responsible for compliance with all applicable local law. You may not export any of Our Materials in violation of any applicable export laws and regulations. This Agreement will be deemed to have been made and performed exclusively in Ontario, and will be governed by and construed under the laws of Ontario and all federal laws applicable therein without giving effect to Ontario’s conflict of laws principles. You hereby submit to the exclusive jurisdiction of the courts of Ontario for any claim related to this Agreement or the Services that is not subject to arbitration, arising herefrom or in connection herewith and agree not to bring any action, claim, suit or proceeding against us, our affiliates or agents (or any officer, director, or employee thereof) in any jurisdiction other than Ontario.

If you are located and purchased the Service in the United States of America then the Services are operated and administered by us from data centers in the United States of America, (“USA”). If you use the Services from outside USA, you are responsible for compliance with all applicable local law. You may not export any of Our Materials in violation of any applicable export laws and regulations. This Agreement will be deemed to have been made and performed exclusively in the State of New York, and will be governed by and construed under the laws of New York and all federal laws applicable therein without giving effect to New York’s conflict of laws principles. You hereby submit to the exclusive jurisdiction of the courts of the State of New York for any claim related to this Agreement or the Services that is not subject to arbitration, arising herefrom or in connection herewith and agree not to bring any action, claim, suit or proceeding against us, our affiliates or agents (or any officer, director, or employee thereof) in any jurisdiction other than New York.

The United Nations Convention on Contracts for the International Sale of Goods does not apply.

16. Export

You acknowledge that use of the Products may be subject to the export and import laws of the United States and other countries. You agree to comply with all export and import laws and regulations. In particular, you acknowledge that the Products may not be exported or re-exported to any U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Products, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Products for any purposes prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

17. General

(a) Further Assurances. You and we will from time to time execute and deliver all such further documents and instruments and do all acts and things as may reasonably be required to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.

(b) Severability. If any provision of this Agreement is unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement, as the case may be, and will not affect the validity of any remaining provisions. If the application of any provision in this Agreement to any person or any particular set of circumstances is held to be invalid or unenforceable to any extent, its application to other persons or other circumstances where it would not be invalid or unenforceable will not be affected.

(c) Assignment. This Agreement and the License may be assigned by us in our sole discretion. This Agreement and the License may not be assigned by you without our prior written consent. The Products may not be assigned or transferred by you as security or otherwise or leased, rented or transferred or transmitted in any way, and no sublicenses may be granted hereunder by you without our prior written consent. This Agreement will enure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. Notwithstanding the foregoing, you will be entitled to assign this Agreement in its entirety without our consent to a purchaser of all or substantially all of your assets provided: (i) the purchaser does not offer or market any service competitive with our services; (ii) you give us 30 days’ advance written notice of the assignment; and (iii) the purchaser agrees in writing with us to assume and comply with this Agreement.

(d) Waivers. No waiver of any breach of any term or provision of this Agreement is effective or binding unless made in writing and signed by us and, unless otherwise provided, is limited to the specific breach waived.

(e) Headings. The headings in this agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.

(f) Notices. Any demand, notice or other communication to be given to you in connection with this Agreement will be given by mail, by fax or by email at the addresses or numbers which you have provided to us. Any demand, notice or other communication given to you will be conclusively deemed to have been given on the business day following delivery by us, and in the case of email notices, notice shall deemed to be effective as of the business day the email is sent from our computer system. Any demand, notice or other communication to be given to us will be given in writing by mail to the Supplier address indicating Attention: Legal Department.