DataMartIn Inc., a company formed pursuant to the Business Corporations Act R.S.O. 1990, CHAPTER B.16 in Ontario, Canada (“DataMartIn”) provides clients with proposal(s) setting out, among other things, fees for various services and product licences (each a “Proposal”), which incorporates these terms and conditions by reference (the “Terms”). Capitalized terms not defined herein shall have the same meaning attributed to them in the corresponding Proposal, including reference to the “Client” who accepted the Proposal. For the purposes of these Terms, “Parties” means DataMartIn and the Client, and “Party” means either one of them. In consideration of the mutual promises and agreements set out in the Proposal and these Terms, the Parties agree as follows:
Products and Services
DataMartIn provides (i) software reseller services for certain Microsoft and other product licenses (“Product Licenses”); and (ii) software development and managed IT services (collectively the “Services”). The Product Licenses and Services to be performed for the Client will be as described in each Proposal. However, each Proposal may also be amended (for example to increase or decrease the number of Product Licenses or expand the scope of Services, upon the mutual written consent of the Parties, including via email or other written correspondence.
To account for changing prices from its own suppliers, contractors and other factors, Client agrees that, aside from fixed fee services quoted for software and application development, DataMartIn may, in its sole and absolute discretion, update and amend its fees and pricing information at any time upon 30 days’ notice to the Client. Thereafter, the Client may elect to terminate the corresponding Proposal, in accordance with the termination provisions below.
Notwithstanding the foregoing, if a Proposal references a fixed term, the Client agrees that the fees, expenses and taxes are payable for the entire term and that the amounts specified in the Proposal are offered on the basis that the Client cannot terminate the Product Licenses or Services prior to end of the minimum term. Client agrees to pay all such fees, expenses and taxes for the entire term specified. Client agrees that fixed duration Product Licenses and Services will automatically renew for the same duration, unless terminated in advance in accordance with these Terms.
Client agrees and acknowledges that Product Licenses paid for or subscribed to on a monthly, annual or other duration are non-refundable, and that even upon the termination of a Proposal or these Terms, Client will be responsible for paying for the full duration of any outstanding Product Licenses.
All fees and expenses listed in a Proposal, or which otherwise become due and payable by the Client, will be subject to the addition of applicable sales taxes, including HST.
DataMartIn will provide the Product Licenses and Services as an independent contractor and not as an employee, joint venturer or partner and the Parties waive the application of the Partnerships Act, RSO 1990, c P.5 or any successor or similar legislation in any jurisdiction. DataMartIn will perform all Services using its own employees, however, DataMartIn may also elect to subcontract all or any portion of the Services to third parties. All Services will be performed remotely, unless DataMartIn agrees otherwise, in writing. Additional fees may be quoted for any in-person Services.
The Client agrees and acknowledges that in order to access various Product Licenses, it (and where applicable, the Client organization’s staff and others) may be required to enter various agreements and accept various policies of third parties, including for example, agreements presented by Microsoft and their related entities (“Third Party Agreements”). Client agrees that DataMartIn is not responsible for the performance of any obligations, nor shall DataMartIn be liable for the performance (or failure to perform) any obligations arising under Third Party Agreements.
Payment
Any amount due in respect of the Product Licenses or Services, including all fees, charges, costs or expenses and any applicable taxes (the “Fees”), will be specified in the applicable Proposal. However, where DataMartIn undertakes work or supplies Product Licenses at the request of the Client, for which no Proposal applies, the Client agrees to pay DataMartIn’ s then current market rates, for such Product Licenses and Services, as updated from time to time. The Client shall reimburse DataMartIn for any expenses incurred on the Client’s behalf or which are incurred in providing the Services or Product Licenses where the Client requests such expenses.
Discretionary Deposits
As a condition for continuing to provide Services, upon request by DataMartIn, Client agrees to pay a monthly deposit, which will be drawn upon and applied to each subsequent invoice for Services and Product Licenses, in an amount equal to 100% of the previous monthly balance due and owing by the Client, plus or minus any reasonable additions, at the discretion of DataMartIn, to account for the addition or removal of Product Licenses, additional Services requested and/or estimated usage based billing fees. DataMartIn may provide the monthly deposit amount to the Client via email. Where no deposit amount is specified by DataMartIn in any given month, Client shall pay the same deposit amount it paid in the previous month. No interest will be paid on the deposit. Any unused deposit amount will be returned to the Client upon the expiration of the term of this agreement, or the termination hereof.
DataMartIn will invoice the Client on a monthly basis, or more frequently at the discretion of DataMartIn. Invoices will become due and payable upon receipt, on the date they are sent, by email, to the Client. After applying any deposit held by DataMartIn (if any), payment of any outstanding Fees shall be made within seven (7) calendar days.
Fees and deposits shall be paid by Interact e-transfer, direct deposit, wire transfer or such other method agreed upon by DataMartIn.
Unpaid Invoices
Interest on any unpaid invoices owing to DataMartIn will start to accrue thirty (30) days after the invoice falls due, at a rate of two percent (2%) per month, calculated and compounded on any overdue balance and to be added to the Client’s outstanding balances monthly, not in advance.
Client agrees to pay any and all penalties, damages and fees that may be charged to DataMartIn by its suppliers, including for example, its licensors or various product license suppliers arising from the late payment of invoices, the failure to use Product Licenses in accordance with their terms or the terms of any Third Party Agreements.
Without waiving any other rights DataMartIn has, arising under these Terms, at law or otherwise, in the event the Client fails to pay an invoice when it falls due, DataMartIn may, without any liability to the Client and without advanced notice:
suspend all Services and refuse to incur any additional expenses on the Client’s behalf; and/or
permanently terminate or temporarily deactivate any and all Product Licenses, which means the Client and the Client’s end-users will no longer be able to access corresponding accounts, data and information; and/or
terminate these Terms and/or any Proposal.
Notwithstanding the above rights and remedies granted to DataMartIn, upon DataMartIn exercising any such rights or remedies, the Client shall remain responsible to pay all outstanding Fees, interest and deposits.
DataMartIn shall not be liable or responsible for any damages, howsoever caused, including by negligence or otherwise, which the Client or its staff, or others may incur as a result of DataMartIn or its suppliers or licensors suspending or terminating Product Licenses or corresponding online accounts.
The Client accepts all risks and any losses or damages, including, but not limited to, loss of data and loss of profits, arising from the inability to access Product Licenses, and any data or information stored in connection therewith.
DataMartIn makes no representations or warranties as to the Client’s ability to migrate any data or accounts to new service providers. However, where DataMartIn agrees to do so, additional fees will be quoted to assist with any such data migration or transferring accounts, such as email accounts, to a new provider.
Access to Accounts
The Client acknowledges that in providing Services, DataMartIn and its subcontractors may require access to the Client’s administrative accounts or for the Client to create administrator account access to certain software, servers or accounts held with third-party email, data hosting and other providers (“Third-Party Provider”). The Client agrees to create such accounts and provide access to such software, servers and systems as is necessary for DataMartIn to perform the Services. However, the Client agrees to limit DataMartIn’ s access to such Third-Party Provider accounts and data as is necessary to perform the Services.
DataMartIn reserves the right to require that the Client hold and pay for accounts with Third-Party Providers directly, in their own name, and subsequently provide administrator account access to DataMartIn and its employees or contractors, where necessary. In scenarios where DataMartIn holds an account directly with a Third-Party Provider, upon DataMartIn’ s request, the Client agrees to be assigned or transferred such accounts for direct payment. Where the Client fails to do so, within a reasonable time, DataMartIn may terminate the account.
In the event DataMartIn recommends a Third-Party Provider or entity that provides Product Licenses, it shall be the Client’s obligation to perform its own due diligence on vendors or third-party providers of any software, systems or hardware used in the course of providing the Services. DataMartIn may also use such other Third-Party Providers, such as email and data hosting providers it deems necessary for its own internal purposes or in carrying out the Services. If there are any vendors, software, systems or hardware which DataMartIn is precluded from using in performing the Services, or which DataMartIn must use, they must be specified and agreed upon in the applicable Proposal.
Privacy, Personal Information and Security
The Client agrees not to provide DataMartIn, its directors, officers, employees, agents or subcontractors with any personal information, or access to any accounts or personal information, unless doing so is necessary for the provision of the Services.
Where the Client, its directors, officers, employees, subcontractors, agents, suppliers, representatives or parties it is responsible for at law, provide any form of personal information, or access to personal information, to DataMartIn, the Client represents and warrants that it has obtained consent from the applicable individuals to provide DataMartIn with that information, or make it accessible to DataMartIn, if required by law.
Without limiting the foregoing, the Client agrees it is responsible for complying with all applicable privacy laws, rules and regulations including but not limited to the Personal Information Protection and Electronic Documents Act, SC 2000, c 5. Where applicable and where required by law, the Client shall disclose to its customers, staff and any individual it collects personal information on, that DataMartIn will have access to such personal information and accounts in providing Services to the Client.
To the extent DataMartIn’ s Product Licenses or Services include creating or implementing email or other accounts, software and/or hardware systems that are intended to be used to collect, store and/or process confidential, sensitive or personal information or data, DataMartIn makes no representations, warranties or guarantees that such software or hardware systems are impenetrable, or capable of not being hacked or accessed by third parties, resulting in a data breach, or the loss or theft of such data or information.
While DataMartIn will take measures to protect confidential and personal information in providing the Services, the Client agrees that, to the fullest extent permitted by law, in no event will DataMartIn, its directors, officers, shareholders, employees, subcontractors, agents, suppliers, or licensors be liable, howsoever caused, for the loss or theft of confidential or personal information or any damages caused by the unlawful access to, or breach of any software or systems created by, administered by or which DataMartIn and its subcontractors were provided access to.
If DataMartIn is to be responsible for implementing any specific security safeguards or encrypting any data or personal information, it shall be the Client’s obligation to include such requirements in the applicable Proposal.
DataMartIn will not access or use for its own purposes, or disclose to any third party, any personal information, except, in each case, as necessary to provide the Services, or as necessary to comply with the law or a valid and binding order of a court or governmental body (such as a subpoena or court order).
While DataMartIn may delete or purge data or information from the Client’s systems, on the instructions of the Client, or its representatives, DataMartIn may also refuse to delete data or information where it reasonably believes doing so may be unlawful.
Data Backups
Unless expressly stated in a Proposal, DataMartIn shall not be responsible for backing up any data or information which DataMartIn creates, controls or has access to in providing the Services.
Service Levels
While DataMartIn makes no representations and grants to warranties in respect of resolving support inquiries from the Client for managed IT services, DataMartIn aims to (i) respond to all support inquiries within 4 hours during DataMartIn’ s normal business days, excluding statutory and bank holidays in Ontario, Canada; and (ii) meet reasonable target resolutions times for high and low priority issues impacting the Client’s IT systems and access to or use of accounts associated with Product Licenses, as follows:
Priority Level
Description
Target Resolution Time
High
Critical issue impacting the ability to access accounts or data.
Two Business Days
Low
Non-critical issues faced with software or systems forming part of Product Licenses or resulting from the Services.
Determined on case-by-case basis in consultation with Client
DataMartIn does not guarantee that it will be able to resolve all matters, errors or outages, regardless of priority level, or that it will be able to resolve all matters, errors or outages within the target resolution time.
Representations and Warranties of the Client
The Client represents and warrants that:
it shall comply with all applicable laws, rules and regulations in carrying out its business and shall not provide any instructions, as part of the Services, for DataMartIn to do anything that is or may reasonable be construed as being unlawful or use (or permit its own staff or other end-users to use) the Product Licenses or accounts for any unlawful purposes;
it and each of its representatives and end-users shall only use the Product Licenses and access corresponding software and accounts for lawful purposes and otherwise comply with any end-user terms of service, Third Party Agreements or similar agreements entered as a result of accessing and using the Product Licenses; and
it can lawfully enter these Terms.
The Client acknowledges and agrees that:
it is not permitted to further sublicense, sell access to or commercialize Product Licenses;
to the extent any Product Licenses are billed based on usage or other metrics, Client agrees that it is solely responsible for monitoring such metrics and hereby permits DataMartIn to use the Product Licenses or access such accounts as is necessary to perform the Services and that Client is responsible to pay for any and all such use;
unless expressly agreed to in a Proposal, DataMartIn makes no representations or warranties as to its Services, or software forming part of the Product Licenses, complying with any particular legal requirements, including but not limited to, requirements related to the protection and disclosure of confidential, personal or health information under any appliable laws, rules or regulations, anywhere in the world;
DataMartIn is not an agent of Client, nor acting as a custodian or in any other capacity for the protection of personal or health information under any laws, rules or regulations anywhere in the world, including but not limited to the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A in Ontario, the European Union’s General Data Protection Regulation or the U.S. Health Insurance Portability and Accountability Act of 1996; and
the Client shall not provide (or provide access to), transmit or otherwise disclose personal health information to DataMartIn.
Intellectual Property
DataMartIn may, in the course of providing the Service to the Client, conceive or develop material or information related to the business and operations of the Client, which is capable of copyright protection (referred to as “Proprietary Property”). To the extent DataMartIn delivers such Proprietary Property to the Client, which DataMartIn lawfully owns, DataMartIn grants the Client a worldwide, perpetual, irrevocable license to use, further develop, grant sub-licenses to and create derivative works from said Proprietary Property for commercial purposes. However, the license granted herein is subject to, and conditional upon, all corresponding invoices, related to the delivery of such Proprietary Property, being paid in full.
Confidentiality
DataMartIn’ s engagement with the Client, as specified in each Proposal, may give a receiving Party (the “Receiving Party”) access to proprietary and confidential information belonging to the disclosing Party (the “Disclosing Party”), its customers, suppliers and others (the proprietary and confidential information is collectively referred to as “Confidential Information”). Confidential Information includes any information marked or disclosed as ‘Confidential’, supplier and vendor lists, marketing plans, business plans, business proposals, contracts, copyright, designs, trademarks, internal emails and correspondence, digital files, technical and financial information, reports, databases, datasets, software, software code, trade-secrets and know-how. It is agreed that all Confidential Information remains the confidential and proprietary information of the Disclosing Party, or where applicable, its suppliers or third parties.
The Parties shall, both during and after the term hereof, keep all Confidential Information confidential and shall not use any of it except for the purpose of carrying out authorized activities under each Proposal and these Terms. A Receiving Party may, however, use or disclose Confidential Information which it owns or which: (i) is or becomes public other than through a breach of these Terms; or (ii) is required to be disclosed by law, whether under an order of a court or government tribunal or other legal process, provided that the Receiving Party informs the Disclosing Party of such requirement, if permitted by law. DataMartIn may also disclose or provide access to Confidential Information to its employees and subcontractors for the purpose of carrying out the Services.
Upon termination, the Parties shall return or destroy, as directed by the other Party, Confidential Information and any other property owned by the other Party. Upon request, both Parties shall confirm to the other in writing, within fifteen (15) calendar days, that all such Confidential Information or other property has been returned or destroyed, as applicable.
Client agrees not to make any unauthorized use of, or to provide to DataMartIn, any confidential information or intellectual or proprietary property of any third party, including without limitation any copyrighted materials, unless Client is lawfully entitled to do so.
Acceptance of Risk
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR A PROPOSAL, DATAMARTIN AND ITS SUBCONTRACTORS AND THIRD-PARTY SUPPLIERS PROVIDE THE SERVICES AND ALL PRODUCT LICENSES ON AN “AS IS” BASIS. NO WARRANTY IS EXTENDED TO THE CLIENT OR ANY OTHER PERSON OR ENTITY UNDER THIS AGREEMENT.
THE CLIENT AGREES THAT USE IT USES THE SERVICES, PRODUCT LICENSES AND CORRESPONDING SOFTWARE AT ITS SOLE RISK.
DATAMARTIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THIS AGREEMENT, PRODUCT LICENSES, THE SERVICES AND EACH PROPOSAL, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES THAT THE SERVICES OR ANY SOFTWARE ACCESSIBLE UNDER PRODUCT LICENSES WILL BE UNINTERRUPTED OR ERROR FREE.
CLIENT ACKNOWLEDGES THAT PORTIONS OF THE SERVICES AND PRODUCT LICENSES ARE PROVIDED BY THIRD-PARTY SUPPLIERS AND CONTRACTORS WHOSE PERFORMANCE IS NOT WARRANTED OR GUARANTEED BY DATAMARTIN OR SUCH THIRD-PARTY SUPPLIERS OR CONTRACTORS UNDER THESE TERMS. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY DATAMARTIN OR ITS EMPLOYEES, DIRECTORS, OFFICERS, AFFILIATES, CONTRACTORS, OR THEIR RESPECTIVE REPRESENTATIVES SHALL CREATE A WARRANTY, AND CLIENT SHALL NOT RELY ON ANY SUCH ADVICE OR INFORMATION.
THE ABOVE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.
EXCLUSION OF DAMAGES
IN NO EVENT SHALL EITHER PARTY, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, OR EMPLOYEES, BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS INCLUDES, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF BUSINESS EARNINGS, LOST PROFITS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF DATA, LOSSES FROM A SECURITY BREACH OR CYBER-ATTACK, BUSINESS INTERRUPTION, OR INCREASED OPERATIONAL COSTS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
LIABILITY CAP
THE AGGREGATE LIABILITY OF EACH PARTY, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, AND EMPLOYEES, TO THE OTHER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS AND ALL PROPOSALS, SHALL NOT EXCEED THE GREATER OF (I) CAD $2,500, OR (II) THE TOTAL AMOUNT BILLED BY DATAMARTIN TO THE CLIENT FOR SERVICES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH WRITTEN NOTICE OF SUCH CLAIM IS GIVEN. THE EXISTENCE OF MULTIPLE CLAIMS, OR CAUSES OF ACTION, WILL NOT INCREASE THIS LIABILITY CAP.
DATA BREACH
In addition to the above liability cap, the Client agrees that, to the fullest extent permitted by law, in no event will DataMartIn, its directors, officers, shareholders, employees, subcontractors, agents, suppliers, or licensors be liable, howsoever caused (including by negligence or otherwise), for any damages caused by unlawful third-party access to, or breach of any software or systems created by, administered by, or which DataMartIn and its subcontractors were provided access to.
The exclusion of damages, liability cap and data breach sections, above, shall apply to the maximum extent permitted by applicable law and are an essential condition of these Terms.
Exceptions
Notwithstanding the foregoing, neither Party, nor their respective directors, officers, or employees, shall have their liability limited with respect to:
Amounts due and properly owing for Services, Product Licenses, interest, or expense reimbursements under these Terms and/or a Proposal;
A party’s indemnification obligations herein;
A breach of confidentiality or any provision of these Terms imposing confidentiality obligations;
Misappropriation of the other Party’s intellectual property rights;
Willful misconduct or fraud; or
Any other liability that cannot be excluded or limited by applicable law.
Indemnification
The Client agrees to indemnify DataMartIn, its directors, officers, employees, shareholders, agents, representatives and subcontractors, and to defend and hold each of them harmless, from any and all claims and liabilities (including reasonable legal fees) which may arise from, (i) the Client’s breach of any provision of these Terms, or any Proposal or document or policy incorporated by reference; (ii) the Client or any end-user of Product Licenses sold to the Client, breaching a Third Party Agreement or any form of end-user terms of service or license; (iii) a data breach, or the loss or theft of data, including but not limited to personal information data, whether stored by a Third-Party Provider or otherwise, so long as DataMartIn was not the sole cause of such data breach through its own gross negligence; (iv) the Client, its staff or subcontractor(s) causing or contributing to the breach of any third-party rights, or causing or contributing to any damage, personal injury or death suffered by a third party; (v) any breach of a representation or warranty made by the Client, or its staff, representatives, subcontractors or agents, either in these Terms or otherwise; and (vi) any claims made against DataMartIn by the Client’s staff, directors, officers, end-users, customers, subcontractors or agents arising in connection with the Services or any Product Licenses.
Non-Solicitation
During the term of the relationship between the Parties formed by these Terms, and for six months after the termination hereof, the Client agrees it shall not (and shall ensure its affiliated and related entities do not) hire, offer to hire, divert, entice away, solicit or in any other manner persuade, or attempt to do any of the foregoing, directly or indirectly, for employment or other services or engagements, any persons or entities employed or engaged as a contractor by DataMartIn during such period without DataMartIn’ s prior written approval.
Term
The term of this agreement between the Parties shall commence on the date the corresponding Proposal is accepted by Client and will continue until all outstanding Proposals are terminated in accordance with the terms hereof. If there is more than one Proposal accepted by the Client, these Terms shall remain in force until all such Proposals have been terminated.
Terminating Proposals (Services and Product Licenses)
Subject to the terms of each Proposal (including terms governing minimum durations for Services and subscriptions to Product Licenses), the Parties shall be permitted to terminate any outstanding Proposal, or otherwise demand that all work being undertaken be terminated or paused on thirty (30) calendar days’ written notice to the other Party.
The Client agrees to pay DataMartIn the hourly fees for worked performed, and pro-rated fees (as reasonably determined by DataMartIn) for any Services performed, whether or not they were completed, where such work was priced on a fixed rate basis, up to the time of termination. Client shall pay for all usages and other fees for Product Licenses up to the date and time of their cancellation.
Notwithstanding the termination or expiration of these Terms or any Proposal, in the event DataMartIn has incurred any expenses, or has subscribed to any services, Product Licenses, software or other expenses on behalf of the Client or in connection with the Services or Product Licenses, which will continue beyond the termination date, the Client agrees it shall be fully liable for, and shall promptly pay for such expenses once invoiced. Client agrees and understands that Services and Product Licenses may have minimum subscription durations, whether on a monthly, annual or other basis, which may last beyond the term, and which the Client will remain responsible for paying.
DataMartIn shall also be entitled, at its option, to terminate any Proposal immediately upon notice in writing to the Client, in the event that: (i) an order is made or a resolution is passed or a petition is filed for the winding-up of the Client; (ii) the Client ceases to carry on business; (iii) the Client becomes insolvent or files a petition in voluntary bankruptcy or makes a proposal under or seeks relief under any provisions of any bankruptcy, insolvency, creditors’ arrangement, compromise, readjustment of debt or liquidation law now or hereafter in force or consents to the filing of a petition against it under any such law; (iv) a petition is filed against the Client under any insolvency, creditors’ arrangement, compromise, readjustment or debt or liquidation law now or hereafter in force; (v) if a receiver or other custodian of the Client’s assets or property is appointed; or (vi) if the Client shall be in breach of or default under any of the terms, conditions, covenants, representations, warranties or agreements contained in these Terms or in a Proposal and shall fail to cure such breach or default within seven (7) calendar days after delivery to the Client of written notice to that effect.
Any terms herein, or in a Proposal, which by their nature extend beyond the expiration or termination of this Agreement or any applicable Proposal, shall remain in full force and effect until performed and fulfilled. Without limiting the foregoing, any provisions of these Terms concerning the matters listed below shall remain binding even upon the termination of these Terms or any Proposal: (a) all obligations relating to preserving a Party’s confidential information and the ownership or licensing of intellectual property; (b) any provision restricting or limiting liability or imposing indemnification obligations; (c) any restrictive covenants, including provisions concerning the non-solicitation of certain individuals and entities; (d) any other terms or conditions which expressly refer to obligations remaining in force post-termination; and (e) all other terms necessary to give business efficacy to these Terms, including for example, interpretive provisions, choice of law and dispute resolution provisions.
Unless expressly agreed to in a Proposal or in writing, DataMartIn shall have no obligation to facilitate the migration of data, information or accounts to a new service provider or other licensors for Product Licenses. In the event DataMartIn can and elects to assist with such data or account migrations, DataMartIn will provide a proposal and quote for such work, which will be subject to these Terms. All fees listed in the quote will be payable in advance, or a deposit will be made payable, at the discretion of DataMartIn.
Other Provisions
Notices: Any notice, direction or other communication required or permitted to be given to a Party shall be in writing and shall be sufficiently given if sent by email to an email address either Party regularly used during the term of the corresponding Proposal(s), or they otherwise provide for notices or ordinary communications.
Assignment: The rights and obligations of each Party under these Terms and each Proposal cannot be transferred, assigned, or sublicensed to a third party without the prior written consent of the other Party. Notwithstanding the foregoing, DataMartIn may assign this agreement (and each corresponding Proposal) to a third party in the event DataMartIn sells all or substantially all of its assets in connection with the sale of its business. This agreement and each Proposal shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
Governing Law: This agreement and each Proposal shall be governed by and construed in accordance with the laws of Ontario and the applicable federal laws of Canada, excluding any conflict of laws rules that would apply the laws of another jurisdiction.
If any dispute arises between the Parties relating to the application, interpretation, implementation or validity of these Terms, a Proposal or any other document incorporated by reference, the Parties agree to resolve the dispute by arbitration at ADR Chambers using the ADR Chambers Expedited Arbitration Rules, as made available on the ADR Chambers website (https://adrchambers.com). The Parties agree that the ADR Chambers Expedited Arbitration Rules give the Parties a fair opportunity to present their case and respond to the case of the other side. The arbitration shall be held in Toronto, or virtually at the discretion of the arbitrator, and shall proceed in accordance with the provisions of the Arbitration Act (Ontario). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The language of the arbitration shall be English. An oral hearing need not be held. There will be no appeal from the decision of the arbitrator on questions of fact, law, or mixed fact and law.
Entire Agreement: These Terms and each Proposal entered in connection with these Terms constitute the entire agreement between the Parties with respect to the subject matter hereof and each Proposal.
Interpretation: If an ambiguity or question of intent arises with respect to any provision of these Terms or a Proposal, or the terms and any document incorporated by reference, the Terms, Proposal(s) and such other documents incorporated by reference shall be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favouring or disfavouring either Party by virtue of authorship of any of the provisions.
Severability: The invalidity or unenforceability of any provision or part of any provision of these Terms, a Proposal or any documents incorporated by reference, shall not affect the validity or enforceability of any other provision or part thereof, and any such invalid or unenforceable provision or part thereof shall be deemed to be separate, severable and distinct and no provision or part thereof shall be deemed dependent upon any other provision or part.
Force Majeure Event. Except for monetary obligations, neither Party (the “Impacted Party”) shall be in default or otherwise liable to the other for failure or delay in the performance of a required obligation hereunder, or arising from a Proposal, if such inability or delay results from any cause which is unforeseeable and beyond such Party’s reasonable control or anticipation, including, without limitation, acts of war, acts of God, terrorism, earthquake, hurricanes, flood, fire or other casualty, embargo, riot, sabotage, labor shortage or dispute, governmental act, insurrection, epidemic, quarantine, inability to procure materials or transportation facilities, failure of power, restrictive governmental laws or regulations, acts (or the failure to act) of third parties, failure of the internet, failure of third party service or software providers or other reason that is beyond a party’s reasonable control (each a “Force Majeure Event”). The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practical after the removal of the cause.
Client agrees that any provisions herein which obligate the Client to limit the liability of, hold harmless or indemnify any person or entity who is not a party hereto (such as DataMartIn’ s directors, officer, shareholders, employees and others), that such obligations are accepted by DataMartIn as agent and trustee for each such third-party. DataMartIn declares itself trustee of such covenants and obligations for each such third party; such covenants and obligations may be enforced by DataMartIn on behalf of any such person.
DataMartIn may, at any time, revise these Terms by updating this webpage. The date of the last version of these Terms is posted above. No amendments will impact any existing Proposal where we are providing Services or Product Licenses to you, the Client. However, where the Client enters a new Proposal, the latest version of these Terms, will apply.