For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Customer” means a customer who places an order for food delivery from Subscriber’s Business;
“Service” means access to Servmetrics’s online, web-based application known as Servmetrics, which enables subscribers to improve it subscribers’ relationships with Customers by providing an SMS messaging and survey service to provide customer feedback and enable subscribers to respond to Customer issues and complaints, as well as facilitating Customer reviews.The service also provides access to analytics relative to the Subscriber Data;
“Subscriber’s Business” means Subscriber’s restaurant business and food delivery services;
“Subscriber Data” means all electronic data or information submitted by Subscriber, Subscriber’s Customers and/or its Users to the Service;
“Term” has the meaning ascribed to that term in Section 10.1;
“Servmetrics ServiceFee(s)” means the monthly subscription fees (as specified in the applicable Order) payable by Subscriber to Servmetrics for the right to receive access to the Service; and
“User” means (i) an employee, contractor or agent of Subscriber who is authorized by Subscriber to use the Service who has been supplied a user account and password by Subscriber (or by Servmetrics at Subscriber’s request) for the Service.
2. Grant of License.
2.2 Trial Period.If You request a free trial of the Services, Servmetrics may, in its sole discretion make those Services available to You free of charge for evaluation purposes for a period specified in the Order.Trial services are provided ‘as is’ without any warranty of any kind. We reserve the right at all times (but will have no obligation) to terminate users and/or terminate any trial at any time without any liability whatsoever to you.
2.3 User Accounts.User accounts are for use by Subscriber’s employees, contractors and agents only, and cannot be shared or used by more than one person. User accounts may be reassigned to new employees, contractors or agents replacing former employees, contractors or agents who are longer accessing the Service.
2.4 Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth herein.No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement.
2.5 Subscriber Trademark License. If so agreed between Servmetircs and You under an Order, Servmetrics shall white-label the Service for Subscriber. Subscriber shall provide to Servmetrics in softcopy/electronic format, as reasonably specified by Servmetrics, the Subscriber branding to be used to white-label the Service, and Subscriber hereby grants to Servmetrics a non-exclusive, non-transferrable, royalty-free license to use the Subscriber branding materials solely to the extent necessary to perform the white-labelling services of the Services. Servmetrics shall only use the Subscriber branding materials for the purposes of creating a white-labelled version of the Service as contemplated by this Section 2.4 and for the operation thereafter of the Service.Subscriber shall retain all right, title and interest in and to the Subscriber branding provided to Servmetrics.Servmetrics shall retain all right, title and interest to the white-labelled version of the Service, including all enhancements, modifications, improvements, new features, updates, upgrades, and new functionalities, new versions and research and development related to the Service, excluding any materials provided by Subscriber for the purpose of white-labelling the Service.
3. Use of the Service.
3.1 Servmetrics Responsibilities. Servmetrics shall: (i) use commercially reasonable efforts to maintain the security and integrity of the Service and the Subscriber Data; (ii) provide basic support to Subscriber and its Users as set forth on the Schedule attached hereto, at no additional charge (other than charges for incremental support as set forth in the applicable Order that Subscriber may elect to incur); and (iii) use commercially reasonable efforts to make the Service available to Subscriber: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Servmetrics's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Servmetrics employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Servmetrics’s possession or reasonable control, and denial of service attacks.
3.3 Subscriber Responsibilities.Subscriber is responsible for all activities that occur in User accounts and for its employees’, contractors’ and agents’ compliance with this Agreement.Subscriber shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data, including, without limitation, ensuring that Subscriber has all necessary consents and permissions and made any and all necessary disclosures to provide Servmetrics with the Subscriber Data and enable Servmetrics to exercise its rights under this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Servmetrics promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
3.4 Use Guidelines. Subscriber shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party (other than Users, as permitted by this Agreement); (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks; or (vii) use the Service to create a product that is similar to and/or competitive with the Service.
3.5 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent.Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's trademark standard guidelines. Notwithstanding anything to the contrary in the foregoing, Subscriber agrees that any communications sent to Customers via the Services on Subscriber’s behalf shall include the statement “Powered by Servmetrics” or a similar phrase as shall be mutually agreed upon in writing by the parties.
3.6 Training. Servmetrics will provide, at no additional charge to Subscriber, up to a maximum of three (3) hours of initial training to Subscriber’s employees, agents and contractors in the use and operation of the Service. Servmetrics may, at its sole discretion following a request from Subscriber, agree to provide additional training at no additional charge. The training to be provided by Servmetrics pursuant to this Section 3.7 will be provided remotely (i.e. via conference call or online via the Internet) and Servmetrics shall not have any obligation to provide onsite training.
4. Fees & Payment.
4.1 Fees. In consideration for the receipt of the Service purchased by Subscriber, Subscriber shall pay Servmetrics the Servmetrics Service Fees as specified in the Applicable Order.All amounts are payable in United States dollars.
4.2 Invoicing & Payment. Fees for the Service are payable monthly, in full in advance by valid credit card.Fees will be automatically charged to the credit card associated with Subscriber account at the start of each Renewal Term (defined below).Subscriber is responsible for maintaining complete and accurate billing and contact information with Servmetrics.
4.3 Overdue Payments. Any payment not received from Subscriber by the due date may accrue, at Servmetrics's discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Taxes. Unless otherwise stated, Servmetrics's fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Subscriber is responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on Servmetrics's net income or property.If Servmetrics has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Servmetrics with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5 Audit Rights. Servmetrics shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and/or Permitted Subscriber Service and Subscriber’s compliance with this Agreement.
4.6 Suspension of Service. If Subscriber's account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Servmetrics shall have the right to suspend the Service provided to Subscriber without liability to Subscriber, until such amounts are paid in full.
4.7 Fee Changes. Servmetrics may change, in its sole discretion, any pricing contained in any Order, upon thirty (30) days prior written notice to Subscriber and such revised prices shall become applicable to Subscriber upon the expiration of such thirty (30) day period, provided that if prior to the receipt of any notice of a price change Subscriber has pre-paid for the Service for a specified period of time, then the price to be paid by Subscriber for the Service will not change until the expiration of such pre-paid period of time.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Servmetrics reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
5.2 Restrictions. Subscriber shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service; (d) frame or mirror any content forming part of the Service, other than as necessary for the provision of the Permitted Subscriber Service; (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; or (f) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.
5.3 Subscriber Data. Subscriber shall retain ownership to the Subscriber Data. Notwithstanding anything to the contrary in the foregoing, Subscriber hereby grants to Servmetrics a non-exclusive, perpetual, irrevocable, world-wide, royalty-free, unrestricted license to access, use and store the Subscriber Data, for the purpose of (i) providing the Services; (ii) analytics and statistics purposes; and (iii) in anonymized and aggregate form for research, marketing, product development, Services modifications.
5.4 Suggestions. Servmetrics shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Users relating to the operation of the Service.For greater certainty, Servmetrics shall have no obligation to modify the Service to implement any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Users.
6.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that is marked as confidential at the time of disclosure or which if disclosed orally is identified as confidential at the time of disclosure and for which a written summary, which is marked as confidential, is provided to the receiving party within thirty (30) days thereafter.Notwithstanding the foregoing, the Service and all pricing information shall be deemed to be the Confidential Information of Servmetrics.Confidential Information shall not include any information that:(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties & Disclaimers.
7.1 General Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
7.2 Service Warranties. Servmetrics warrants that (i) the Service will perform materially in accordance with the Documentation; and (ii)the Service will not contain or transmit to Subscriber any Malicious Code (except for any Malicious Code contained in User or Subscriber-uploaded materials or otherwise originating from Subscriber or a User).Any claim for any alleged breach of this Section 7.2 must be made within ninety (90) days of the date of such alleged breach and Servmetrics shall only be liable for any direct damages incurred by Subscriber within the ninety (90) days after the occurrence of such breach and which are a result of such breach.
7.3 Subscriber Warranties. Subscriber warrants that the Subscriber Data will not contain or transmit to Servmetrics any Malicious Code. Subscriber further warrants to Servmetrics that Subscriber has obtained from its Customers, all necessary consents and permissions and has made any and all necessary disclosures in respect of the Subscriber Data, including any personal information contained in the Subscriber Data, to provide the Subscriber Data to Servmetrics and to enable Servmetrics to exercise its rights under this Agreement.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVMETRICS MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Mutual Indemnification.
8.1 Indemnification by Servmetrics. Servmetrics shall, at its own expense, defend Subscriber, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the Subscriber Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Subscriber Indemnitees alleging that the Service (excluding the Subscriber Data and Subscriber branding materials) infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Subscriber Indemnitees harmless from and against any settlement amounts agreed by Servmetrics in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Subscriber Indemnitees by a court of competent jurisdiction in any IP Claim.As conditions for the defense and indemnification to be provided by Servmetrics pursuant to this Section 8, Subscriber shall: (i) provide Servmetrics with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) give Servmetrics sole control of the defense and settlement of such IP Claims; (iii) cooperate fully with Servmetrics, at Servmetrics’s expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims.This Section 8 sets forth the entire liability of Servmetrics and the exclusive remedy of Subscriber for patent, copyright or other proprietary or intellectual property right infringement or misappropriation.
8.2 Mitigation. If an IP Claim has occurred, or in Servmetrics's opinion is likely to occur, Servmetrics may, at its election and expense, either obtain for Subscriber the right to continue using the applicable Service or replace it with a comparable Service or modify the Service so that it become non-infringing.If neither of the foregoing alternatives is reasonably available, Subscriber agrees to discontinue use of the applicable portion of the Service, and may in its sole discretion terminate the Agreement upon written notice to Servmetrics and receive a pro-rata refund of Servmetrics Service Fees that were paid in advance, if any, in respect to time periods after the date of any such termination.
8.3 Exclusions. Servmetrics shall have no obligations or liabilities to any of the Subscriber Indemnitees for any IP Claim that arises from or relates to (i) any unauthorized use of the Service by Subscriber; (ii) any combination of the Service with any technology, service or data provided by anyone other than Servmetrics, provided that such IP Claim would not have arisen but for such combination; (iii) any modification of the Service by anyone other than Servmetrics, provided that such IP Claim would not have arisen but for such combination; or (iv) any claim that arises in connection with branding and other materials provided by Subscriber.
8.4 Indemnification by Subscriber. Subscriber shall, at its own expense, defend Servmetrics, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the Servmetrics Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Servmetrics Indemnitees arising from or relating to (i) Subscriber’s use of the Service; (ii) the Subscriber Data, including any claims that Subscriber Data violates any applicable privacy law; or (iii) that the Subscriber branding infringes or misappropriates any third party intellectual property rights or privacy, publicity or personality rights (collectively, (i) - (iii) hereinafter referred to as a “Subscriber-related Claim”) and shall indemnify and hold the Servmetrics Indemnitees harmless from and against any settlement amounts agreed by Subscriber in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Servmetrics Indemnitees by a court of competent jurisdiction in any Subscriber-related Claim. As conditions for the defense and indemnification to be provided by Subscriber, Servmetrics shall: (i) provide Subscriber with prompt written notice of any Subscriber-related Claim and copies of relevant documentation regarding any Subscriber-related Claim for which indemnification may be sought; (ii) give Subscriber sole control of the defense and settlement of such Subscriber-related Claim; (iii) cooperate fully with Subscriber, at Subscriber’s expense, in the defense or settlement of such Subscriber-related Claim; and (iv) not settle any Subscriber-related Claims or admit liability in respect to any Subscriber-related Claims.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), CLAIMS FOR NON-PAYMENT OR DEATH OR BODILY INJURY, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAYABLE BY SUBSCRIBER TO SERVMETRICS UNDER THE AGREEMENT DURING THE PRECEDING TWELVE (12-) MONTH PERIOD.
9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THOSE OF ITS LICENSORS AND/OR SUPPLIERS), OR DEATH OR BODILY INJURY, NEITHER PARTY SHALL BE LIABLE TO ANY OTHER ENTITY OR PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS, LOST TIME OR GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
9.3 Release. Subscriber understands and acknowledges that Servmetrics may have one or more third party service providers or partners.Subscriber agrees that suchthird party service providers are not responsible for providing any customer support or other support services in relation to the Servmetrics Services, and that such third party service providers are not and shall not be liable for any losses, claims, injuries, costs, or expenses (“Losses”) incurred by Subscriber relative to the Service and hereby release such third party service providers from any claim for Losses, except to the extent that such Losses are incurred as a result of such third party service provider’s goods or services.
10. Term & Termination.
10.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of one (1) month (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional successive one (1) month renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least fifteen (15) days prior to the end of the Initial Term or any Renewal Term hereof.Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
10.2 Termination for Cause. A party may terminate this Agreement for cause:(i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Subscriber, Servmetrics shall refund Subscriber any prepaid fees for any periods after the termination of the Agreement.
10.3 Outstanding Fees. Termination or expiration shall not relieve Subscriber of the obligation to pay any fees accrued or payable to Servmetrics prior to the effective date of termination or expiration.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11. General Provisions.
11.1 Relationship of the Parties. The parties are independent contractors.This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon:(i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.Notices to Servmetrics shall be addressed to the attention of the Legal Department.Notices to Subscriber shall be addressed to Subscriber’s signatory of this Agreement unless otherwise designated below.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all SOWs), without consent of the other party, in connection with a merger, acquisition, or sale of all or substantially all of its stock or assets.Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of law principles.No choice of laws rules of any jurisdiction shall apply to this Agreement.The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties aux présentes confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglais seulement.
11.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Vancouver, British Columbia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.Each party hereby consents to the exclusive jurisdiction of such courts.Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.10 Export. Subscriber acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Subscriber shall comply with all export and import control regulations of such countries.Subscriber shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation.Subscriber shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
Servmetrics shall provide support to Subscriber for the Service pursuant to the terms and conditions set forth below.
2. Technical support
Servmetrics will, during its regular business hours, provide e-mail support at [email protected]. Response will be provided within two (2) business days of receipt by Servmetrics of a question or fault report.
3. Fault reports
Servmetrics will be considered to have been informed of a fault when Servmetrics has actually received a fault report by e-mail.
4. Remedy of Faults
If a serious fault is reported, Servmetrics will first provide advice about how to work around the fault. If there are no work arounds for a fault, then the fault will be corrected. Less serious faults will be corrected in a subsequent Service software release.
5. Updates and new releases
Servmetrics shall install updates and new releases of the Service software when such updates and new releases are ready for general availability.
Servmetrics shall supply documentation in electronic form in connection with the general availability of new versions of the Service software.
7. Responsibility and undertakings of Subscriber.
In order to enable Servmetrics to diagnose faults, Subscriber shall, as far as possible, supply documentation and other relevant information on faults being reported by Subscriber. Subscriber shall appoint a contact who shall be responsible for handling all interactions with Servmetrics.
8. Limitations on Support
8.1 Support Obligation for the Service
Servmetrics is only obliged to provide support to the latest version of the Service.
Support shall not include the diagnosis and rectification of any fault resulting from or in respect to:
- The use of the Service for a purpose for which it was not licensed;
- Rectification of lost or corrupted data arising for any reason other than a Service fault;
- Loss or damage caused directly or indirectly by Subscriber operator error or omission;
- Network or other hardware infrastructure that may be used in or in connection with the provision of the Service; or
- Any software that was not developed by Servmetrics.