TERMS OF SERVICE AGREEMENT
Last Modified: November 6, 2020
Please read this Terms of Service Agreement carefully, as it contains important information regarding your legal rights and remedies.
This Terms of Service Agreement (“Agreement”) is entered into by and between Sidepart Digital Ltd, (the “Service Provider”) and you (the “Client”). This Agreement is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance. The Service Provider and the Client are sometimes referred to herein collectively as the “parties” or individually as a “party.”
1.1 Managed Services.
The Service Provider agrees to provide the Client with hosting and support services related to the support and management of Client’s WordPress website (the “Website”) as set forth or as described during the registration process (the “Managed Website Services”). The Service Provider shall provide the Managed Website Services so that the Website is accessible to third parties. Except as expressly provided herein, Client agrees that the Service Provider is responsible only for providing the Managed Website Services, and the Service Provider is not responsible for providing any services or performing any tasks not specifically agreed to between the Service Provider and the Client during the registration process.
At the time of execution of this Agreement, to the extent that Client wishes to receive from the Service Provider, and the Service Provider wishes to provide to Client, services other than the Managed Website Services (collectively, the “Additional Services”), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the “Services Addendum”), and the Services Addendum shall be incorporated into, and become a part of this Agreement. The Managed Website Services and the Additional Services will hereinafter be referred to collectively as the “Services”.
1.2 Grant of License; Restrictions.
The Service Provider hereby grants to the Client during the Term a non-exclusive, worldwide, limited license granting the Client access to the Service Provider’s software and proprietary technology (the “Platform”), which will allow the Client to use and receive the Services. The Client acknowledges that the Platform and its structure, organization, and source code constitute valuable trade secrets of the Service Provider and its licensors. Except as expressly permitted by this Agreement, the Client agrees that the Client shall not, and shall not permit any third party, to: (a) reproduce, modify, adapt, alter, translate, or create derivative works of the Platform; (b) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Platform to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Platform; (d) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Platform; or (e) otherwise use or copy the Platform except as expressly permitted under this Agreement.
The Client shall post all materials comprising the Website, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the “Client Content”), which shall be in a correct format (as specified by the Service Provider in consultation with the Client). The Client acknowledges that Website construction and management, other than the Managed Website Services, is the Client’s responsibility. The Service Provider shall not be responsible for files lost or damaged by Client. The Service Provider maintains system backups that are intended to recover from system failure and which may be used for restoration of files to individual sites.
1.4 Availability of Website.
The Website shall be accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Services due to causes beyond the control of the Service Provider or which are not reasonably foreseeable by the Service Provider, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Services, the Client’s sole and exclusive remedy and the Service Provider’s sole and exclusive liability for any loss or interruption of Services shall be as follows: for loss or interruption of Services which is due to (i) causes other than scheduled maintenance and required repairs; (ii) causes beyond the control of the Service Provider; or (iii) causes which are not reasonably foreseeable by the Service Provider, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Services exceeds a continual period of twenty-four (24) hours, the Client shall receive a credit against future Services equal to a pro rata portion of Services fees for the period of downtime.
1.5 Additional Storage and Transfer.
The Client agrees that it will not exceed the bandwidth or storage space limits applicable to the purchased Services. In the event that the Website exceeds the limits included in the Services, or should the Client request or require increased limits, the Service Provider will automatically bill the Client for any such upgrade in the level of Services, or the additional incremental storage required by the Client’s use to be included in the Services, on a time and materials basis and in accordance with the fee schedule set forth in the plan that includes the appropriate storage amounts.
The Service Provider will complete updates to the Website as outlined in the Managed Website Services.
The Service Provider represents and warrants it has implemented and will maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the confidentiality, integrity, and availability of Client Content.
2. License and Proprietary Rights.
2.1 Proprietary Rights of Client.
As between the Client and the Service Provider, Client Content shall remain the sole and exclusive property of the Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. During the term of this Agreement, the Service Provider shall have the right to use Client’s name, trade name and/or trademark(s) in connection with the marketing and promotion of its business activities. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant the Service Provider any ownership right in, or license to, the Client Content provided by the Client to the Service Provider.
2.2 Proprietary Rights of the Service Provider.
All materials, including but not limited to the Platform, any computer software (in object code and source code form), data or information developed or provided by the Service Provider or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by the Service Provider or its suppliers to provide Services to the Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Sidepart Materials”) shall remain the sole and exclusive property of the Service Provider or its licensors.
To the extent, if any, that ownership of Sidepart Materials does not automatically vest in the Service Provider by virtue of this Agreement or otherwise, the Client hereby transfers and assigns to the Service Provider all rights, title and interest which the Client may have in and to Sidepart Materials. The Client acknowledges and agrees that the Service Provider is in the business of providing Services, and that the Service Provider shall have the right to provide Services to third parties that are the same or similar to the Website Services, and to use or otherwise exploit any Sidepart Materials in providing such services.
Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”).
Confidential Information shall not include information that the receiving party can demonstrate:
(i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party;
(ii) was known to the receiving party as of the time of its disclosure;
(iii) is independently developed by the receiving party; or
(iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party.
Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
3. Client Content.
3.1 Client Content.
The Client assumes sole responsibility for
(i) acquiring any authorization(s) necessary for hypertext links to third party websites;
(ii) the accuracy of materials on the Website, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and
(iii) ensuring that the Client Content does not infringe or violate any right of any third party.
3.2 Acceptable Use Policy.
The Service Provider does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Client via the Website. An Acceptable Use Policy (“AUP”), available at https://www.sidepart.com/legal/hosting-aup/, is in effect for the Managed Website Services. Any violation of the AUP may result in the immediate cancellation or suspension of any or all Services without warning.
The Service Provider respects the intellectual property of others and requests that the Client does too. The Service Provider shall respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using the Service Provider’s DMCA process. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. To report a notice of alleged copyright infringement by the Client to the Service Provider you may email the Service Provider at email@example.com.
For the purposes of the California Consumer Privacy Act:
(i) The Client is disclosing “Personal Data” to the Service Provider solely for the valid business purpose of receiving the Services; and
(ii) the Service Provider may not sell “Personal Data” or retain, use, or disclose “Personal Data” except as required to provide the Services in accordance with the Agreement. The Service Provider certifies that it understands and will comply with these obligations.
4. Fees and Taxes.
Services shall be paid in Canadian Dollars (“CAD”) by valid payment method (acceptable to the Service Provider) at the time of purchase at the fee set forth on the Service Provider’s website. The Client’s monthly or annual payments for Services, depending on the plan selected by Client, shall be automatically charged to the payment method provided by Client at the time of purchase (with such payments being charged in advance on a monthly or annual basis, as applicable) each month or annually, as applicable (”Services Fee”), and you hereby agree that the Service Provider is authorized to so charge the payment method on file. The Service Provider may, at its sole discretion, suspend or terminate Services without notice if Client fails to provide payment for the new term.
If the Client initiates a chargeback with the provider of a credit card or initiates a similar action to a payment provider allowed by the Service Provider for charges billed by the Service Provider for Services, the Services will be immediately suspended without notice. Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and/or the Service Provider’s bank dispute fee.
4.3 Increase in Fees.
The Service Provider expressly reserves the right to change the fees charged hereunder for Services with advanced notice to the Client. If the Client does not agree to any such pricing change, it may cancel Services within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to the Client’s account and the Client agrees that the Service Provider is authorized to charge the payment method provided by Client for any new Services Fee, on the next monthly or annual (as applicable) payment cycle.
4.4 Additional Services Fees.
Unless otherwise agreed in writing, the Client shall pay to the Service Provider all fees for Additional Services on a time and materials basis as invoiced by the Service Provider.
4.5 Breach for Failure to Pay.
Failure of the Client to fully pay any fees within sixty (60) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by the Service Provider, and will be sufficient cause for immediate termination of this Agreement by the Service Provider. Any such suspension does not relieve the Client from paying past due fees plus interest and in the event of collection enforcement, the Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees.
Client shall pay or reimburse the Service Provider for all sales, use, value-added, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by the Service Provider under this Agreement; excluding, however, income taxes on profits which may be levied against the Service Provider.
5.1 Service Provider Warranties.
The Service Provider represents and warrants that:
(i) The Service Provider has the power and authority to enter into and perform its obligations under this Agreement; and
(ii) The Service Provider’s Services under this Agreement shall be performed in a professional, workmanlike manner, consistent with industry standards.
5.2 Client Warranties.
Client represents and warrants that:
(i) the Client has the power and authority to enter into and perform its obligations under this Agreement;
(ii) the Client shall use commercially reasonable efforts to prevent unauthorized access to any restricted areas of the Website and any databases or other sensitive material generated from or in connection with the Website;
(iii) the Client shall not copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, misappropriate or otherwise attempt to extract any or all of the Sidepart Materials;
(iv) Client shall use the Services in accord with the AUP; and
(v) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that the Client owns the Client Content or otherwise has the right to place the Client Content on the Website. Should the Client receive notice of a claim regarding the Website, the Client shall promptly provide the Service Provider with written notice of such claim.
5.3 Disclaimer of Warranty.
Except for the limited warranty set forth in section 5.1, the Service Provider makes no warranties hereunder, and the Service Provider expressly disclaims all other warranties, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose.
6.1 Indemnification by the Client.
The Client agrees to indemnify, defend, and hold harmless the Service Provider, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that:
(i) if true, would constitute a breach of any of the Client’s representations, warranties, or agreements hereunder;
(ii) arises out of the negligence or willful misconduct of the Client; or
(iii) any of the Client Content to be provided by the Client hereunder or other material on the Website infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
6.2 Indemnification by the Service Provider.
The Service Provider agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of the Service Provider.
6.3 Indemnification Process.
In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
7. Limitation of Liability.
7.1 Limitation of Liability.
The Service Provider shall have no liability for unauthorized access to, or alteration, theft or destruction of, the Website or the Clients data files, programs or information through accident, fraudulent means or devices. The Service Provider shall have no liability with respect to the Service Provider’s obligations under this agreement or otherwise for consequential, exemplary, special, incidental, or punitive damages even if the Service Provider has been advised of the possibility of such damages. In any event, the liability of the Service Provider to the Client for any reason and upon any cause of action shall be limited to the amount actually paid to the Service Provider by the Client under this agreement during the six (6) months immediately preceding the date on which such claim accrued. This limitation applies to all causes of action in the aggregate, including, without limitation, to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.
8. Termination and Transition.
The term of service shall be determined by either the Client’s selection on the order form during the order process or by the Client’s acceptance of the terms provided by the Service Provider. The term shall begin upon the processing of Client’s order, or upon acceptance of documents provided by the Service Provider. Upon completion of the term, the Client acknowledges and agrees that the term will renew automatically for successive terms of length equal to the prior term unless the Client notifies the Service Provider of its intent to not renew the Website Services. The foregoing has no effect on Section 8.2, and the Client may still terminate the Agreement in accordance with the terms below.
The Client may terminate its account and this Agreement within thirty (30) days of the end of the Term by providing a notice of cancellation to the Service Provider at firstname.lastname@example.org. Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within thirty (30) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach, except that the cure period for failures of payment obligations shall be ten (10) days. The Service Provider may terminate this Agreement at any time and for any reason by providing written notice of termination to the Client and refunding a pro rata portion of fees paid by the Client for Services not yet rendered on the date of termination.
8.3 Termination and Payment.
Upon any termination or expiration of this Agreement, the Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
9.1 Entire Agreement.
This Agreement and any attached schedules constitute the entire agreement between the Client and the Service Provider with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
9.3 Independent Contractors.
The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise or employee relationship between the Parties.
The Service Provider may update this Agreement from time to time in its sole discretion; the current version may be found at https://www.sidepart.com/legal/hosting-terms-of-service/. In the event of any material change, the Service Provider will provide written notice to the Client. The Client’s continued use of the Services following such updates constitutes the Client’s acceptance of the same. If the Client does not agree to the terms of any modification, it may terminate this Agreement in accordance with Section 8 (Termination).
9.5 Client Identification.
Upon written permission from the Client, the Service Provider may use the name of and identify the Client as a client in advertising, publicity, or similar materials distributed or displayed to prospective clients.
9.6 Force Majeure.
Except for the payment of fees by the Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
9.7 Governing Law.
This Agreement is governed by, and is to be interpreted and construed in accordance with, the laws applicable in the Province of Nova Scotia and the federal laws of Canada applicable therein, without regard to conflict of laws rules.
9.8 Dispute Resolution.
In the event of any dispute between the parties arising out of or in connection with this Agreement, the following dispute resolution process will apply unless the parties otherwise agree in writing:
(i) the parties must initially attempt to resolve the dispute through collaborative negotiation;
(ii) if the dispute is not resolved through collaborative negotiation within 15 Business Days of the dispute arising, the parties must then attempt to resolve the dispute through mediation; and
(iii) if the dispute is not resolved through mediation within 30 Business Days of the commencement of mediation, the dispute must be referred to and finally resolved by binding arbitration.
(iv) An arbitration or mediation under this section will be held in the City of Halifax, Nova Scotia.
Client shall not assign, without the prior written consent of the Service Provider, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if by email, upon confirmation thereof; or (iii) if by next day delivery service, upon such delivery. All notices to the Service Provider shall be addressed as follows:
Sidepart Digital Ltd.
101C-2077 Brunswick St.
Halifax, NS, B3K 2Y4
All notices to the Client shall be addressed to the address on file with the Service Provider, which shall be updated, as needed, by the Client.
The waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the parties hereto.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
9.15 Approvals and Similar Actions.
Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
9.17 Primary Contact.
The Client shall designate one (1) person who will act as the primary liaison for all communications regarding the Services.
The Client is advised to print a copy of this Agreement for its records, as the Agreement may need to be referenced from time to time.
9.19 Electronic Contracting.
The Service Provider and the Client desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by the Service Provider and governed by the applicable provisions of the Uniform Electronic Commerce Act as adopted in the Province of Nova Scotia.