These Terms of Service (as revised from time to time by Us upon written notice to You) apply to Our provision of and Your use of the products and/or services under the Agreement.A current copy of Our Terms of Service is available upon request or at www.automaticcoating.com
1.DEFINITIONS
“Affiliate” of a party means any entity under common control of, or controlled by, that party. In our case it also means any entity that We authorize to offer any or part of any Service.
“Agreement” means these Terms of Service and any written agreement between You and Us regarding the Services.
“Charges” means the rates and charges in the applicable services agreement.
“Claims” means any claim, demand, liability, damage, loss, suit, action or cause of action and all related costs and expenses.
“Confidential Information” means Our or Your confidential technical and business information, including without limitation, information relating to inventions or software, research and development, future product specifications, engineering processes, network architecture, costs, profit or margin information, and marketing and business plans. “Confidential Information ” does not include information which is or becomes publicly known otherwise than by reason of a breach of the Agreement or has been independently developed outside the scope of the Agreement.
“Content” means information made available, displayed or transmitted in connection with a Service including, among other things, all trade- marks and domain names as well as the contents of any bulletin boards or chat forums, and all updates, upgrades, modifications and other versions of any of the foregoing. It also includes information made available by means of an HTML “hot link”, a third party posting or similar means.
“Force Majeure Event” means any event beyond the reasonable control of a party.
“Initial Term” means the initial term specified in the Agreement, which will be no less than one month.
“Minimum Charge” has the meaning in Section 2.2.
“Personal Information” is information about an identifiable individual that is recorded in any form, but does not include aggregated information that cannot be associated with a specific individual.
“Services” or “Service” means any product and/or service provided by Us to You under the Agreement.
“Term” means the Initial Term and any renewal term(s).
“Unplanned Expenses” means unusual or unexpected expenses in the provision of the Services to You (including without limitation, for securing rights of way or for special construction).
“User” means any person You permit to access or use the Services.
“We”, “Us” and “Our” mean ACL., its Affiliates, and its and their employees, directors, officers, agents, representatives, subcontractors, interconnection service providers and suppliers.
“You” and “Your” mean the company or other corporate entity or organisation whose name appears on the Agreement as the recipient of the Services.
“Your Location” means Your business address or location for the purposes of Service delivery.
2.0 CHARGES AND BILLING
2.1 You will pay Us the Charges for the Services in accordance with the applicable services agreement and subject to the Minimum Charge. The Charges will remain in effect during the Initial Term and any renewal term of the Agreement, unless We provide written notice to You, at least 60 days prior to the end of the Initial Term or renewal term (as applicable) that the Charges will be amended with effect from the first day of the next renewal term.
2.2 You will pay all other Charges when due as shown on the applicable invoice. You will pay all federal, provincial, or other taxes that apply to the Services. You will not pay Us less than 75% of the total outstanding Contract Value (“Minimum Charge).
2.3 If You are late in making any payment, or if Your bank returns any payment, You will reimburse Us for any collection costs we incur. You will pay interest on any late payments at the lower of 18% per annum or the maximum rate allowed by law.
2.4 You will pay for any reasonable costs that We incur to restore a suspended Service. You will reimburse Us for any Unplanned Expenses (if You have first agreed to an estimate of these expenses)that We incur in providing the Services. Third party charges incurred by Us in connection with the Services are subject to change and We reserve the right to pass on these charges to You.
2.5 You will review Your invoices and inform us promptly in writing of any errors, omissions or irregularities. You will promptly pay the undisputed portion of any invoice. If You dispute a portion of an invoice You will give us written notice within 60 days of the invoice date, otherwise You will be considered to have accepted the accuracy and validity of the invoice.
2.6 Unless there has been deception by You regarding a Charge, You will only be responsible for paying a previously unbilled or underbilled Charge where it is correctly billed within a period of one year from the date it was incurred.
3.0 TERM & TERMINATION
3.1 Term
3.1.1 Unless otherwise stated in the Agreement, the Initial Term begins on the later of: (a) the installation of the first Service; and (b) the date the Agreement is signed by Us.
3.1.2. The Initial Term, and each renewal term, will renew for a period equal to the Initial Term unless either of us gives the other prior written notice of termination at least 30 days prior to the end of the Initial Term or renewal term (as applicable).
3.2. Termination for Cause
3.2.1 If either of us breaches any material term or condition of the Agreement and the breach cannot be remedied within 30 days after receipt of written notice, the other may terminate the Agreement or the affected Service for cause. Either of us can terminate the Agreement immediately if: (a) the other party breaches its obligations under Section 7 (Confidential Information) or Section 11.2; (b) any proceeding under bankruptcy, creditor protection or similar law is commenced by or against the other party; or (c) a receiver is appointed for the other party.
3.3 Termination Charge
3.3.1 If You terminate the Agreement without cause, or We terminate the Agreement with cause, You will pay Us an amount equal to 50% of the total value of the contract (as applicable) (“Termination Charge”).
3.3.2 If You cancel or delay a request for piece after completion work has started, but before such Service is installed, You will pay a one-time penalty charge to cover Our reasonable costs of and/or providing such Service.
3.3.4 You acknowledge that any termination charges payable under this section are a realistic pre-estimate of the damages that We will suffer for the termination.
3.3.5 You will not be required to pay the Termination Charge if You enter into a new Agreement with an Initial Term and estimated Monthly Contract Value equal to or greater than the terminated Agreement.
3.3.6 You will pay all Charges incurred up to the date of termination of the Service.
3.3.7 Unless otherwise stated in the Agreement, each of us will provide the other with 30 days prior written notice of termination of any Service or the Agreement.
3.3.8 You will reimburse Automatic Coating Limited for any charges, set up fees, construction, tolling, powder, masking and line time incurred as a result of termination.
4.0 CONFIDENTIAL INFORMATION
4.1 Each of us will keep confidential for three years after disclosure the other’s Confidential Information (except software will be kept confidential for an indefinite period), using at least the same precautions each of us uses to safeguard our own valuable information.
4.2 Neither of us will disclose the other party’s Confidential Information except to: (a) employees, agents, contractors and Affiliates on a need- to-know basis, provided that such agents, contractors and Affiliates are not direct competitors of the disclosing party and agree in writing to use and disclosure restrictions as restrictive as those contained in this section; or (b) to the extent required by law, with prior advance written notice.
4.4 We will only use Personal Information that We collect in accordance with the principles in Our Privacy Policy, a current copy of which is available at www.automaticcoating.com or upon request.
5.0 LIMITATIONS OF LIABILITY
5.1 For the purposes of all exclusive remedies and limitations of liability in the Agreement: (a) “We” or “Us” will include Automatic Coating Limited, its Affiliates, and its and their employees, directors, officers, agents, representatives, subcontractors, interconnection service providers and suppliers; and (b) “You” will include You, Your Affiliates, and Your and their employees, directors, officers, agents, and representatives.
5.2 THE ENTIRE LIABILITY THAT EITHER OF US WILL HAVE TO THE OTHER, AND THE OTHER’S EXCLUSIVE REMEDIES, FOR ANY CLAIMS ARISING IN CONNECTION WITH ANY SERVICE OR OBLIGATIONS UNDER THE AGREEMENT SHALL BE:
(A) FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE PROPERTY DAMAGE, CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ONE OF US, THE OTHER’S RIGHT TO PROVEN DIRECT DAMAGES;
(B) FOR DAMAGES OTHER THAN THOSE ABOVE AND NOT EXCLUDED UNDER THE AGREEMENT, THE LIABILITY OF EACH OF US IS LIMITED TO PROVEN DIRECT DAMAGES OF THE OTHER, NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY 12 MONTH PERIOD) AN AMOUNT EQUAL TO THE AMOUNT PAYABLE BY YOU FOR THE AFFECTED SERVICE DURING THE THREE MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OCCURRED. THIS DOES NOT LIMIT YOUR RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THE AGREEMENT; AND (C) FOR ERRORS AND OMISSIONS IN DIRECTORY LISTINGS, A REFUND OR CREDIT OF ANY CHARGES ASSOCIATED WITH SUCH LISTINGS FOR THE PERIOD DURING WHICH THE ERROR OR OMMISSION OCCURRED.
5.3 EXCEPT FOR YOUR SECTION 10 (INDEMNITY) OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS.
5.4 WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: (A) FACILITIES, EQUIPMENT, SOFTWARE, APPLICATIONS, SERVICES, OR CONTENT PROVIDED BY YOU, USERS OR THIRD PARTIES; (B) UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF YOUR, USERS’ OR THIRD PARTIES’ APPLICATIONS OR (C) ANY ACT OR OMISSION OF YOU, USERS OR THIRD PARTIES.
5.5 THE LIMITATIONS OF LIABILITY IN THE AGREEMENT WILL APPLY: (A) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; AND (B) WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THE AGREEMENT.
5.6 NEITHER PARTY WILL BE LIABLE FOR A FORCE MAJEURE EVENT, EXCEPT THAT YOUR OBLIGATION TO PAY FOR CHARGES INCURRED FOR SERVICES RECEIVED BY YOU SHALL NOT BE EXCUSED.
6.0 WARRANTIES
6.1. UNLESS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, WE MAKE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES REGARDING ANY SERVICE OR PRODUCT PROVIDED BY US TO YOU.
7.0 INDEMNITY
7.1 You will indemnify and hold Us harmless against any and all Claims relating to: (a) Your unlawful or improper Use of the Product or Services, (b) Your failure to comply with the terms and conditions of the Agreement; (c) property damage, personal injury or death Claims caused by Your acts or omissions, or arising from Your use of the Products or Services.
8.0 GENERAL PROVISIONS
8. 1 No public statements or announcements can be made about the Agreement without our respective prior mutual consent. Neither of us will use the other’s trade names, logos, or trademarks (collectively “Marks”) without the other’s prior written consent. This written consent can be revoked at any time.
8.2 Unless otherwise expressly provided in the Agreement, any change to the Agreement must be in writing and signed by our respective representatives. Any waiver will not operate as a waiver of any other breach of the Agreement.
8.3 You may not assign the Agreement without Our prior written consent, which consent will not be unreasonably withheld or delayed.
8.4 If any portion of the Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in effect.
8.5 Any legal action arising in connection with the Agreement must be brought within two years after the cause of action arises.
8.6 Any notices to the other party will be in writing and either mailed by certified or registered mail, sent by express courier or hand delivered and addressed to each party at the address set out in the Agreement, or such other address that a party indicates in writing. Unless otherwise provided in the Agreement, all notices to Us shall be directed to: 211 Nugget Avenue, Toronto, Ontario, M1S 3B1
8.7 The laws in effect in Ontario will apply to the Agreement. The parties agree that jurisdiction and venue in the courts of Ontario is appropriate and You agree that You will bring legal proceedings only in Ontario.
8.8 Our respective obligations, which by their nature would continue beyond the termination or expiration of the Agreement , including but not limited to, obligations regarding confidentiality, publicity and trade-marks, and limitations of liability, will survive such termination or expiration.
8.9 THE AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES. THE AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, REPRESENTATIONS, STATEMENTS OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
8.10 The parties confirm that it is their wish that the Agreement, as well as all other documents relating thereto, including all notices, be drawn up in the English language only. Les parties aux présentes confirment leur volont que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés enlangue anglaise. (01/04)
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