VPS Contract 2011

Document Sample
VPS Contract 2011 Powered By Docstoc
					                                                                                                       AtumVPS Agreement

5255 Yonge Street, Suite 1205, Toronto, ON M2N 6P4                                                                  CONTRACT #
 416.410.8444  416.410.8999
sales@atum.comhttp://www.atum.com


A. ORDER FORM
Atum agrees to provide Services, in accordance with the terms and conditions of this Agreement and as described in ”VIRTUAL PRIVATE
SERVER HOSTING PLANS”,hereto.

ACCOUNT INFORMATION (“THE CUSTOMER”):

Full Name:
Organization:
Street Address:
Suite/Unit Number:                                                            State/Province:
City:                                                                         Country:
Postal/Zip Code:                                                              Email Address:
Phone:                                                     Ext.               Fax:

ADMINISTRATIVE CONTACT

    Same as "Account Information" above (if checked, skip this section)

Full Name:
Organization:
Street Address:
Suite/Unit Number:                                                            State/Province:
City:                                                                         Country:
Postal/Zip Code:                                                              Email Address:
Phone:                                                     Ext.               Fax:

BILLING CONTACT *

   Same as "Account Information" Above (if checked, skip this section)
   Same as "Administrative Contact" (if checked, skip this section)

Full Name:
Organization:
Street Address:
Suite/Unit Number:                                                            State/Province:
City:                                                                         Country:
Postal/Zip Code:                                                              Email Address:
Phone:                                                     Ext.               Fax:

*Billing contact must exactly match the credit card holder name and billing address if a credit card is to be used for payment. The specified
email address will receive invoices by the automated billing system.

Service Plans may be modified, from time-to-time, upon written notice. If Customer requests modified or additional Services, Atum shall
provide Customer with an updated Service Agreement. Atum shall proceed with such modified or additional Services only upon
Customer’s acceptance of the replacement Service Agreement.




INITIAL
VIRTUAL PRIVATE SERVER HOSTING PLANS

                              Basic Plan         Bronze Plan        Silver Plan        Gold Plan           Platinum Plan     Custom Plan


# Servers(Unmanaged)          0                  0                  0                  0                   0                 0
# Servers (Managed)           0                  0                  0                  0                   0                 0
CPU                           1 @ 2.9GHz         1 @ 2.9GHz         1 @ 2.9GHz         4 @ 2.9GHz          8 @ 2.9GHz
RAM                           512MB DDR3         1024MB DDR3        2048MB DDR3        4096MB DDR3         8192MB DDR3
                              25GB               50GB               50GB               200GB               200GB
Hard Drive Capacity           10,000RPM          10,000RPM          10,000RPM          10,000RPM           10,000RPM
                              6GB SAS            6GB SAS            6GB SAS            6GB SAS             6GB SAS
VPN Connection                Included(1)        Included(1)        Included(2)        Included(3)         Included(5)
Fee/Month (Unmanaged)         $39.00             $49.00             $79.00             $139.00             $209.00
Fee/Month (Managed)           $89.00             $99.00             $129.00            $189.00             $259.00
Total Monthly Fee             $ 0.00             $ 0.00             $ 0.00             $ 0.00              $ 0.00            $ 0.00


ᵻMANAGED VS. UNMANAGED SERVICE GRID

                                                                                                 Managed                 Unmanaged


IBM™ Server Equipment                                                                                                   
100% Guaranteed Network Uptime with Service Level Agreement                                                             
100MB (shared) Internet Connection, 2TB Transfer Limit                                                                  
Firewall Services                                                                                
Level 5 RAID on all Storage                                                                                             
Uninterruptable Power Supply on Host (UPS)                                                                              
Weekly Export Backup Service                                                                     
Server Monitoring                                                                                
Operating System Patching (during scheduled maintenance)                                         
1 Hour of Technical Services (one time)                                                          


SOFTWARE LICENSING

Quantity     Description                                                                Bit Level          Monthly Fee       Total


0            Windows Server 2008 Standard SPLA License                                  32-Bit             $6.00             $ 0.00
0            Windows Server 2008 Standard SPLA License                                  64-Bit             $6.00             $ 0.00



CONTRACT TERM

Start Date: (This is when Atum will start billing you and when Customer’s server will become available):
**Atum bills on the 1st and 15th of every month. You initial billing will be prorated to the next billing date. **



INITIAL
1/1/2011

Expiration Date: (1 year term)

1/01/2012

CUSTOMER VIRTUAL MACHINE INFORMATION

Desired Operating System and Version: Examples - Windows OEM 2003, Centos 5.5


Operating System Bit: (Example – 32 or 64 bit)

32-bit

License Type: Example – Open Source, Customer Supplied, SPLA (Purchased from Atum)
**If the license is customer supplied, please provide proof of purchase and any associated key(s) under separate cover. **

Open Source

Panel Type: (Webmin is provided free of charge. All other panels must be supplied by customer.)

Webmin

Customer Alert Contacts:
** Provide up to 3 contacts that will receive important technical alerts such as maintenance notification. **

Full Name:                                                            Email Address:
Full Name:                                                            Email Address:
Full Name:                                                            Email Address:


Change Management Contacts:
** Provide up to 3 contacts that will be authorized to make change requests. **

Full Name:                                                            Email Address:
Full Name:                                                            Email Address:
Full Name:                                                            Email Address:

Special Instructions: (Indicate software to be installed or preconfigured)
** Managed packages include one hour of services. Requests for service on unmanaged packages or beyond the allotted package will be billed at Atum’s
standard rate of service. Please ask your sales consultant for rates. **




PAYMENT SUMMARY *

Total VPS Fees                                       $ 0.00                                                monthly
Total Licensing Fees                                 $ 0.00                                                monthly


INITIAL
Total Monthly Charges                                 $ 0.00

Prorated VPS Fees                                     0                                                      one time
Prorated Licensing Fees                               $0.00                                                  one time
First Month of VPS Service                            $ 0.00
First Month of Licensing Fees                         $ 0.00
Total Payment Due on Signing                          $ 0.00

* All prices are in CAD (Canadian Dollars) unless otherwise specified and are subject to applicable taxes.

PAYMENT METHOD AND CREDIT CARD AUTHORIZATION

Customer (or the signatory on the last page of this Agreement on behalf of Customer) shall pay for the Services by credit card or PAD
automatically each month. All credit cards are processed on the first (1st) or fifteenth (15th) of each month. If an account or card is declined,
a $25 billing fee will be applied to Customer’s account and an e-mail message will be sent to the Billing Administrator e-mail address.
Customer will have 24 hours to respond with a valid credit card number or the account will be temporarily suspended and subject to a
reactivation fee of $50. If the billing date is during a weekend or holiday the cards are usually processed on the next business day. The
unpaid balance on Customer’s account is subject to interest charges at the rate of 3.5% per month (51.1% per annum).

Invoices are automatically sent by email to the Billing Contact as listed on this Service Agreement within 24 hours of any attempted charge.
Atum does not distribute invoices by fax or postal mail.

In the event of account suspension, a reactivation fee of $50 will be charged in addition to any outstanding balance in order to unsuspend
Customer’s account. Account reactivation usually takes less than three hours but may take as long as 48 hours. Please pay your bill well in
advance of the due date or pay by valid credit card each month to avoid unnecessary account suspension. It is Customer’s responsibility to
supply updated account information when Customer’s authorized credit card/account is set to expire or changes for any reason.

B. SERVICE LEVEL OBJECTIVES

SERVER AVAILABILITY                                                                  following: a) unavailability or delay in performance of Internet networks
                                                                                     controlled by entities other than Atum or traffic exchange points that
Server Availability Objective: Atum will use commercially reasonable                 are controlled by entities other than Atum; b) unavailability or delay in
efforts to ensure that Customer’s virtual private server (limited to                 any connections or equipment of Customer or any authorized user
power and network connectivity only) is available 100% of the time in                which are not Atum-managed and are used by Customer or such
any week, excluding (i) scheduled maintenance periods and (ii) as                    authorized user to access the virtual machine; (c) where the virtual
otherwise described in the “Exclusions and Exceptions” paragraph                     machine is unavailable or delayed as a result of the negligence or acts
below. Atum will use commercially reasonable efforts to advise                       or omissions of Customer, its employees, contractors, agents or its
Customer of a scheduled maintenance period by providing Customer                     customers, including Customer’s breach of this Agreement; (d) where
with 48 hours advance notice VIA email. In addition, this server                     the Services are unavailable as a result of circumstances or causes
availability objective does not cover software, application or                       beyond the reasonable control of Atum including circumstances or
configuration problems.                                                              causes arising in connection with any act or omission of the Customer
                                                                                     or any party other than Atum or any virus, worm, trojan horse, spyware
Scheduled Maintenance Scope: Scheduled Maintenance shall mean                        or other malicious or unwanted software, denial of service attack or
both (1) any maintenance in the Atum data center at which Customer's                 other malicious or unwanted attack, system outage, system error,
server is located (a) of which Customer is notified at least 48 hours in             software defects or equipment failures affecting the Customer, any
advance and (b) that is performed during a standard maintenance                      authorized user or any party other than Atum; (e) software related
window on Weekdays from 12 AM to 6 AM EST and (2) any                                problems; operating system, application issues; failure of any non-
maintenance (a) of which Customer is notified at least 24 hours in                   standard hardware or software installed by Atum or Customer; and (f)
advance if the Servers may not be accessible to the Internet and that is             events of Force Majeure (as defined in this Agreement).
either (b) performed during a standard maintenance window on
Saturdays from 11PM - Sundays 7AM EST or (c) performed during a
                                                                                     Server Availability Objective Process: If Customer opens a trouble
nonstandard maintenance window at a time approved by Customer's
                                                                                     ticket with the Atum help desk or Atum Customer Support within ten
designated point of contact.
                                                                                     (10) days of Customer's Server(s) unavailability and Atum determines in
                                                                                     its reasonable commercial judgment that the virtual private server was
Notice of Scheduled Maintenance will be provided to Customer's
                                                                                     unavailable, that outage will be used to calculate the virtual private
designated alert contact by a method elected by Atum (telephone,
                                                                                     servers unavailability for the remedies provided below.
email, fax or pager). Nothing in this paragraph shall prevent Atum from
conducting emergency maintenance on an as needed basis. The alert
                                                                                     Server Availability Objective Remedy: If Atum determines in its
contact is specified in the above Customer Virtual Machine Information
                                                                                     reasonable commercial judgment that subject to the exclusions above,
Form.
                                                                                     Customer's virtual private server Services were unavailable for less than
                                                                                     100% in a week, Atum, upon Customer's request, will credit Customer's
Exclusions and Exceptions. For greater clarity, Atum will not be                     account the pro-rated charges for every hour of downtime, 1 day’s
responsible for Services downtime in the Customer virtual machine or                 credit. For every single hour of downtime, the Customer will be
any failure to meet the Service Availability Objective caused by the                 credited 1 days fee, for only the effected virtual private server. For



INITIAL
greater clarity, credits shall be capped to a maximum of the reported        D. GENERAL TERMS AND CONDITIONS
server’s fee for one(1) month of service based on a 30 day period and
can only be used as credit with Atum to obtain additional Services.          1.   DEFINITIONS

SERVER INSTALLATION                                                          “Agreement” means, collectively, this VPS Agreement including the
                                                                             Order Form above and these General Terms and Conditions, all Exhibits
Server Install Objective Scope: Atum’s Server Install Objective is to        to this Agreement made pursuant to this Agreement (as may be
have installation of Customer's virtual private server(s) completed          amended from time to time).
within 24 hours of Customer’s billing cycle Start Date. If the Customer
requests to have the server before the start of the billing cycle, the       “Authority” means any government authority, agency, body or
billing amount will be pro-rated and Atum will use commercially              department, whether federal, provincial or municipal, having or
reasonable efforts to have 1-3 servers provisioned within 24 hours           claiming jurisdiction over the Agreement and “Authorities” means all
during the period of Monday to Friday, excluding weekends and                such authorities, agencies, bodies and departments.
statutory holidays. If there are to be 4-10 servers provisioned, Atum
                                                                             “Customer Content” means any and all materials provided by (or on
shall use commercially reasonable efforts to do so within 72 hours
                                                                             behalf of) Customer, including third party software, text, information,
during the period of Monday to Friday, excluding weekends and
                                                                             data, images (still and moving), trade-marks, and logos, and any portion
statutory holidays. Atum shall promptly advise Customer if it does not
                                                                             thereof or as otherwise defined by the parties.
have the required resources/hardware available and in such instance
no billing will occur until such resources/hardware are in stock and in      “Documentation” means the technical publications relating to the
such instance, this objective will only apply once Atum has notified         Services made available by Atum to Customer hereunder, whether in
Customer that such resources/hardware is actually available for              electronic or paper form.
installation.
                                                                             “Effective Date” means the date this Agreement takes legal effect,
Server Install Objective Process: Atum’s installation commitment shall       being the date identified above as the Start Date.
commence on the day of the Bill on Date specified above in this
                                                                             “Intellectual Property Rights” means (a) any and all Canadian
Agreement. This server install objective shall not apply to trial servers
                                                                             proprietary rights provided under (i) patent law, (ii) copyright law, (iii)
nor shall it include any software configurations or application
                                                                             trade-mark law, (iv) design patent or industrial design law or (v) any
installations.
                                                                             other statutory provision or common law principle applicable to this
                                                                             Agreement, including trade dress and trade secret law, which may
Server Install Objective Remedy: Upon receiving the access code and
                                                                             provide a right in either ideas, formulae, algorithms, concepts,
instructions from Atum to access the virtual server, Customer shall have
                                                                             inventions or know-how generally, or the expression or use of such
thirty (30) days within which to contact Atum’s billing support if
                                                                             ideas, formulae, algorithms, concepts, inventions or know-how; and (b)
Customer believes, acting reasonably, that Atum has failed to meet the
                                                                             any and all applications, registrations, licenses, sub-licenses, franchises,
Server Install Objective. If Customer contacts Atum within such thirty
                                                                             agreements or any other evidence of a right in any of the foregoing.
(30) day period, If Atum determines in its reasonable commercial
judgment following its internal investigation that Atum has failed to        “Marks” has the meaning set out in Section 3.4.
meet this Server Install Objective, then the monthly fees for each server
that was not installed in accordance with the Server Install Objective       “Order Form” means the order form signed by Customer and Atum that
will be waived. For greater clarity, Atum must have received payment         describes the Services (as they may be amended from time to time)
for all servers covered by the Server Install Objective in order to refund   above.
any first month charges with regard to this remedy. Customer’s rights        “Proceeding” means any action, claim, demand, lawsuit or other
to receive this Server Install Objective Remedy shall cease if Customer      proceeding.
fails to contact Atum within the thirty (30) day period specified above.
                                                                             “Requirements of Law” mean all applicable Canadian requirements,
Exclusive Remedy. Customer acknowledges and agrees that the                  laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-
remedies set forth in this Service Level Objectives Section are              laws, rules, regulations, official plans, permits, licenses, authorizations,
Customer’s sole and exclusive remedies, and Atum’s entire liability, for     directions, and agreements with all Authorities that now or at any time
any and all unavailability of the Services.                                  hereafter may be applicable to either the Agreement, the Services and
                                                                             the Documentation or any part of them.
C. ACCEPTABLE USAGE POLICY
                                                                             “Services” means the services to be provided by Atum to Customer as
                                                                             set forth in the Order Form or otherwise under this Agreement.
Customer acknowledges and agrees that use of any Services provided
by Atum hereunder is subject to Atum’s Acceptable Usage Policy               “SLA” means the service level agreement that describes the Service
available at www.atum.com/aup which is hereby incorporated by                Level Objectives described in the Order Form above.
reference into this Agreement. By signing this Agreement, Customer
acknowledges and agrees that it has reviewed such Acceptable Usage           “Term” has the meaning set out in Section 6.1.
Policy and agrees to abide by its terms, as the same may be reasonably
                                                                             Terms not defined in this Section 1 will have the meaning given to them
amended from time to time, at all times during this Agreement. Atum
                                                                             elsewhere in this Agreement.
reserves the right to modify the Acceptable Usage Policy at any time
and shall advise Customer of material changes to its Acceptable Usage        2.   SCOPE
Policy thirty (30) days prior to such changes taking effect. Customer
acknowledges that it shall be responsible to review the most current         Subject to the terms and conditions described herein, Atum will
version of the Acceptable Usage Policy available at www.atum.com/aup         perform the Services set forth in this Agreement or any applicable
to ensure its compliance with such policy at all times during the term of    Statement(s) of Work. To the extent Atum’s performance hereunder is
this Agreement.                                                              dependent on Customer ’s actions, any dates or time periods relevant
                                                                             to Atum’s performance will be extended appropriately and equitably to
                                                                             reflect any delays due to Customer .




INITIAL
3.    USE RIGHTS; RESTRICTIONS                                                    applicable sales, use or other taxes or duties, tariffs or the like
                                                                                  applicable to the Fees (except for taxes on Atum’s income). All
3.1 Access. Subject to Customer ’s compliance with the terms and                  payments will be made without deduction for withholding taxes. Late
conditions of this Agreement, Atum agrees that Customer has a limited,            payments may be subject to fees at the rate of 1.5% per month or, if
revocable, non-transferable, non-exclusive right to access and use the            lower, the maximum rate allowed by law. If Customer fails to pay any
Services during the Term for the business purposes of Customer. All               Fees when due, then in addition to any other rights Atum may have,
rights not expressly granted to Customer are reserved by Atum and its             Atum will have the right to suspend delivery of all or a portion of the
licensors.                                                                        Services to Customer , provided that Atum has supplied Customer prior
3.2 Restrictions. Except as expressly permitted by Atum, Customer                 notice and thirty (30) days’ opportunity to cure such deficiency If
will not (and will not allow any third party to): (i) reverse engineer,           Customer believes that Atum has billed Customer incorrectly, Customer
decompile, disassemble, or otherwise attempt to discover the source               must notify Atum thereof (in writing) no later than thirty (30) days after
code, object code, or underlying structure, ideas, or algorithms of the           the date of the invoice. If Atum pursues collection efforts against
Services; (ii) modify, translate, or create derivative works based on the         Customer due to Customer ’s failure to pay Fees due under this
Services; (iii) rent, lease, distribute, sublicense, resell, pledge, assign, or   Agreement, Customer will pay Atum’s reasonable costs of collection,
otherwise transfer or encumber rights to the Services; (iv) use the               including any legal fees related thereto. After the first year of this
Services for timesharing or service bureau purposes or otherwise for              Agreement, Atum will be entitled to change any of the Fees on at least
the benefit of a third party, other than end users of the Services; or            thirty (30) days’ prior notice to Customer , provided that Atum will not
(v) remove or otherwise alter any proprietary notices or labels from the          be able to change any of the Fees more than twice in any twelve (12)
Services or any portion thereof. Customer will use the Services solely in         month period and, further provided that, upon receipt of such notice
compliance with all Requirements of Laws.                                         from Atum, Customer will be entitled to terminate this Agreement on
                                                                                  at least twenty (20) days’ notice to Atum. If Atum revokes its notice of
3.3 Ownership. Except for the rights and licenses expressly granted               change within such twenty (20) day period, this Agreement will not be
under this Section 3, Atum retains all right, title, and interest in and to       so terminated and the Fees will not so change.
all Services and other Intellectual Property Rights created, used, or
provided by Atum to Customer pursuant to this Agreement. Atum will                6.   TERM; TERMINATION
also own all right, title, and interest in and to all modifications or            6.1 Term. Subject to earlier termination as provided below, this
derivatives of, and improvements to, the Services, excluding any                  Agreement will: (i) commence on the Effective Date and continue until
Customer Content. Customer a acknowledges that Atum Intellectual                  the expiration date set forth in the Order Form (the “Initial Term”) and
Property Rights includes data, modules, components, designs, utilities,           (ii) be automatically renewed for additional one-year periods after the
objects, processes, program listings, tools, models, diagrams, analysis           Initial Term (each, a “Renewal Term” and the Initial Term and each
frameworks, leading practices, trade-marks, patents, industrial designs,          Renewal Term, collectively, the “Term”), unless either party requests
know-how, show-how, software, and specifications owned or                         termination in writing at least thirty (30) days prior to the end of the
developed by Atum and that nothing contained herein will constitute               then-current term.
an assignment or transfer of any such Atum Intellectual Property Rights
to Customer ;                                                                     6.2 Termination. Either party may terminate this Agreement upon
                                                                                  thirty (30) days notice if the other party breaches any of the terms or
3.4 Marks. Atum grants to Customer , and Customer grants to Atum, a               conditions of this Agreement and does not cure such breach within that
limited, revocable, non-transferable (except as otherwise set out in              thirty (30) day notice period. Atum may also terminate this Agreement
Section 13), non-exclusive, royalty-free, license to reproduce and                for its convenience at any time upon forty-five (45) days prior notice to
display the other’s logos, trade-marks, trade names and other similar             Customer. A party may also terminate this Agreement (i) immediately,
identifying material (the “Marks”). Any and all use of a party’s Marks            if the other party is declared insolvent or bankrupt; or (ii) if a petition is
hereunder will inure exclusively to the benefit of the owner of the               filed in any court to declare the other party bankrupt or for a
Marks. This Agreement does not convey any ownership interest in or to             reorganization under bankruptcy law or any similar statute and such
the other party’s Marks, but only a limited license that is revocable as          petition is not dismissed in ninety (90) days or if a trustee in bankruptcy
set forth in this Agreement. Atum will only reproduce and display                 or a receiver or similar entity is appointed for the other party. This
Customer ’s Marks that Customer uploads into the Services. Customer               Agreement may also be terminated as provided for and in accordance
will only reproduce and display Atum’s Marks as such Marks are                    with Section 5.1 (subject to the right of Atum to revoke the notice set
incorporated into and made available to Customer as part of the                   forth therein).
Services.
                                                                                  6.3 Effect of Termination. Termination or expiration of this
4.    CLIENT CONTENT                                                              Agreement will automatically terminate all Statements of Work entered
Customer grants to Atum, throughout the Term, a limited, revocable,               hereunder. Customer will pay in full for the Services up to and including
non-transferable, non-exclusive, royalty-free, license to use, reproduce,         the last day on which the Services are provided. Upon termination or
promote, distribute, modify, publicly display and perform, cache, and             expiration of this Agreement, all rights granted herein will revert to the
transmit Customer Content via the Services solely for the purposes of             granting party and all licenses will terminate, and Customer will make
this Agreement. Without limiting any of Customer ’s obligations under             no further use of the Services. All accrued rights to payment and
this Agreement, Customer will provide Atum, in the form and format                Sections 1, 3.2, 3.3, 3.4, 6.3, 6.4, 7, 8.3, 9, 10, 11, 12 and 13 of this
and on the schedule specified by Atum, all Customer Content                       Agreement will survive termination of this Agreement.
reasonably required for Atum’s performance hereunder. For avoidance               6.4 Return/Destruction of Customer Content/ Confidential
of doubt, although Atum will have the right hereunder to host, store,             Information. Within thirty (30) days of any termination or expiration of
encode and reproduce the Customer Content (among other things) in                 this Agreement, each party will return to the other party or destroy all
order to provide the Services in accordance with this Agreement, the              Confidential Information of the other party. Additionally, Atum will
parties agree that Atum does not take legal title to any Customer                 within thirty (30) days of any termination or expiration of this
Content supplied by Customer.                                                     Agreement, return or destroy all Customer Content that it had used to
5.    PAYMENT OF FEES                                                             perform the Services.

5.1 Fees. Customer will pay Atum fees for the Services as set forth in            7.   CONFIDENTIALITY
the Order Form (collectively, “Fees”) during the Term commencing the              7.1 Confidential Information. “Confidential Information” means any
Effective Date. Customer will be responsible for and will pay any                 and all data or information including specifications, documents,


INITIAL
correspondence, research, software, trade secrets, discoveries, ideas,          7.3 The Receiving Party will be entitled to disclose Confidential
know-how, designs, drawings, product information, Customer ’s                   Information if such disclosure is required by a court, administrative
Personal Information (as defined in s. 8.3), technical information and all      body, or regulatory body (including a stock exchange) of competent
information concerning the operations, affairs and businesses of a              jurisdiction, whether as a result of any application made by the
party, the financial affairs of a party and the relations of a party with its   Receiving Party or an investigation initiated by the regulatory body, or
clients, employees and service providers, and any such information of           otherwise, provided that the Receiving Party will:
employees, clients, affiliates or representatives of a party, which is
disclosed by such party (the “Disclosing Party”), whether directly in oral      (a)   give prompt notice of any such requirement for disclosure to the
or material form to the other party (the “Receiving Party”), or                       Disclosing Party so that the Disclosing Party may seek a protective
indirectly, by permitting the Receiving Party to observe the conduct of               order or other appropriate remedy;
the Disclosing Party’s various operations or processes or otherwise.            (b)   take such steps as are reasonably necessary and available to
Confidential Information also includes any data or information                        maintain the confidentiality of the Confidential Information by
described above which the Disclosing Party has obtained from a third                  such court, administrative or regulatory body; and
party and which the Disclosing Party treats as proprietary or designates
as Confidential Information, whether or not owned or developed by the           (c)   in any event, make such disclosure only to the extent so legally
Disclosing Party. The existence and terms of this Agreement will also be              required.
considered Confidential Information. Confidential Information does not
                                                                                8.    REPRESENTATIONS AND WARRANTIES
include data or information that:
                                                                                8.1 Customer Warranties. Customer represents, warrants and
(a)   is within the public domain at the date of disclosure by the
                                                                                covenants to Atum as follows: (i) Customer exists under the laws of its
      Disclosing Party or which thereafter enters the public domain
                                                                                own jurisdiction and is not under any contractual obligation that would
      through no fault of the Receiving Party or its representatives or
                                                                                preclude it from entering into this Agreement, granting the licenses
      affiliates (but only after it becomes part of the public domain);
                                                                                granted hereunder or would interfere with the use of the Customer
(b)   is already known to the Receiving Party at the time of its                Content provided under this Agreement; (ii) Customer owns or has
      disclosure by the Disclosing Party, and is not subject to                 properly licensed all rights in the Customer Content at all times during
      confidentiality restrictions;                                             the Term; (iii) the Customer Content is not, nor will be, in violation of
                                                                                any Canadian Requirements of Laws, Atum’s Acceptable Usage Policy or
(c)   following its disclosure to the Receiving Party, is received by the       Canadian third party Intellectual Property Rights; (iv) all Customer
      Receiving Party without obligation of confidence from a third             Content and Customer ’s use of the Services does and will comply with
      party who the Receiving Party had no reason to believe was not            all applicable Canadian Requirements of Law; (v) Customer will comply
      lawfully in possession of such information free of any obligation of      with all relevant Canadian export and encryption laws and regulations;
      confidence; or                                                            and (vi) neither this Agreement nor the performance of or exercise of
(d)   is independently developed by the Receiving Party without                 rights under this Agreement will violate, conflict with, or result in the
      reference to or knowledge of the Disclosing Party’s Confidential          breach of any term, condition, or provision of any agreement or legal
      Information.                                                              obligation (whether or not existing at the Effective Date) to which
                                                                                Customer is a party or by which it may be bound, or constitute a default
7.2 The Receiving Party:                                                        thereunder.
(a)   will not, directly or indirectly, deal with, use, exploit or disclose     8.2 Atum Warranties. Atum represents, warrants and covenants as
      such Confidential Information or any part thereof to any person or        follows: (i) Atum exists under the laws of the Province of Ontario,
      entity or for any purpose whatsoever (including in any manner             Canada and is not under any contractual obligation that would preclude
      that would benefit any competitor of the Disclosing Party) except         it from entering into this Agreement; (ii) it is not under any contractual
      as expressly permitted hereunder or unless and until expressly            or other obligation that would preclude it from providing the Services
      authorized to do so by the Disclosing Party;                              or granting the licenses granted hereunder; (iii) it is the owner or
                                                                                creator or licensee of the Services and has all rights necessary to
(b)   will use and reproduce the Confidential Information of the                perform its obligations hereunder; (iv) it will perform the Services in a
      Disclosing Party only to the extent necessary to fulfill the              good, workmanlike and professional manner; and (v) the Services will
      Receiving Party’s obligations or exercise its rights under this           substantially conform to the SLA.
      Agreement;
                                                                                8.3 Data Protection and Privacy. In performing its obligations under
(c)   will disclose the Confidential Information of the Disclosing Party        this Agreement, Atum will use commercially reasonable efforts to
      only to its representatives and professional advisors, and those of       comply with all Canadian data protection and privacy Requirements of
      its affiliates, who have a need to know such Confidential                 Law (“Applicable Privacy Laws”). Atum will also use commercially
      Information for the purposes of fulfilling the Receiving Party’s          reasonable efforts to safeguard and prevent the misuse of all Personal
      obligations or exercising its rights under this Agreement, and who        Information disclosed to it under this Agreement or in the course of
      have assumed obligations of confidentiality equal to or greater           providing the Services. As used hereunder, “Personal Information” is
      than the obligations of the Receiving Party under this Section with       information that is capable of being associated with a particular
      respect to the Confidential Information. In all cases, the Receiving      individual, including social insurance or social security numbers, credit
      Party will be responsible for any loss, theft, unauthorized access        history and score, password and login information.
      of Confidential Information or breach of law by its
      representatives, professional advisors, affiliates, employees and         9.    DISCLAIMER
      subcontractors; and
                                                                                9.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2
(d)   will use reasonable efforts to treat, and to cause all its                AND THIS SECTION 9, THE SERVICES, DOCUMENTATION AND ALL OTHER
      representatives and those of its affiliates to treat, all Confidential    TECHNOLOGIES, INFORMATION AND MATERIALS PROVIDED BY ATUM
      Information of the Disclosing Party as strictly confidential,             HEREUNDER ARE PROVIDED “AS IS” WITHOUT REPRESENTATIONS,
      provided that in no event will such efforts be less than the degree       WARRANTIES OR CONDITIONS OF ANY KIND AND ATUM HEREBY
      of care that the Receiving Party exercises in protecting its own          DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND
      valuable confidential information.                                        CONDITIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS
                                                                                AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,



INITIAL
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A                       remedies of the terminating party under the Agreement, at law or in
PARTICULAR PURPOSE AND NON-INFRINGEMENT. ATUM DOES NOT                         equity.
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO                    13. MISCELLANEOUS
THE RESULTS THAT MAY BE OBTAINED FROM CUSTOMER’S USE OF THE                    Every use of the words “including” or “includes” in this Agreement is to
SERVICES.                                                                      be construed as meaning “including without limitation” or “includes
9.2 LIMITATION OF LIABILITY. EXCEPT IN RESPECT OF A BREACH OF                  without limitation”, respectively. If any provision of this Agreement is
SECTIONS 8.1 (CUSTOMER WARRANTIES) OR 11 (NON-SOLICITATION)                    found to be unenforceable or invalid, that provision will be limited or
OR ANY OF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN,                    eliminated to the minimum extent necessary so that this Agreement
NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO                    will otherwise remain in full force and effect and enforceable. This
ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT,                      Agreement is not assignable or transferable by a party except with the
NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A)                    other party’s prior written consent, provided that, a party may transfer
INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL                     and assign its rights and obligations under this Agreement without
DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS                     consent to a successor to all or substantially all of its assets or business
BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR                    to which this Agreement relates. This Agreement (including the Order
COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST                           Form, all Exhibits and Statements of Work (which are incorporated
BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE                        herein by this reference)) is the complete and exclusive statement of
EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF                       the mutual understanding of the parties and supersedes and cancels all
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (C) AMOUNTS IN                    previous written and oral agreements, communications, and other
THE AGGREGATE THAT EXCEED THE FEES PAID (OR, IN CUSTOMER’S                     understandings relating to the subject matter of this Agreement and all
CASE, PAYABLE) BY CUSTOMER TO ATUM UNDER THIS AGREEMENT IN                     waivers and modifications thereof must be in a writing signed by both
THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION                       parties, except as otherwise provided herein. No agency, partnership,
AROSE.                                                                         joint venture, or employment relationship is created as a result of this
                                                                               Agreement, and each party does not have any authority of any kind to
10. INDEMNIFICATION                                                            bind the other in any respect whatsoever and neither party shall make
                                                                               any contracts, warranties or representations or assume or create any
10.1 Customer Obligations. Customer will defend, indemnify and hold            other obligations, express or implied in the other party’s name or on its
Atum harmless from and against all third party claims (and all resulting       behalf. All notices, demands, consents, authorizations, approvals and
damages awarded, settlements and costs and expenses) arising from              other communications under this Agreement will be in writing and will
Customer ’s breach of Sections 8.1 or 11.                                      be deemed to have been duly given when received, in respect of
10.2 Requirements. Atum may, in its sole discretion, give Customer             Customer, at the applicable Customer address set forth in the first page
sole control of the defense and any settlement of such claim arising           of the Order Form or, in respect of Atum, at Atum’s address on the first
under Section 10.1, and shall provide to Customer, at Customer’s cost,         page of the Order Form, Attention: Billing Department or as a party
any assistance necessary to such defense or settlement.                        may otherwise direct, as follows: if personally delivered; when receipt is
                                                                               electronically confirmed, if transmitted by facsimile or email; the day
11. NON-SOLICITATION                                                           after it is sent, if sent for next day delivery by recognized overnight
                                                                               delivery service; and upon receipt, if sent by certified or registered mail,
Neither party will encourage or solicit any employee or consultant of
                                                                               return receipt requested. This Agreement will be governed by the laws
the other party to leave such other party for any reason for a period of
                                                                               applicable in the Province of Ontario without regard to the conflict of
one (1) year following any termination or expiration of this Agreement.
                                                                               law provisions thereof. With respect to all disputes arising in relation to
12. FORCE MAJEURE                                                              this Agreement, the parties consent to exclusive jurisdiction and venue
                                                                               in the courts located in the City of Toronto. The United Nations
Except for Customer’s payment obligations, neither party will be liable        Convention on Contracts for the International Sale of Goods will not
to the other party for any failure or delay in performance caused by           apply to this Agreement. This Agreement may be executed by the
reasons beyond its reasonable control, including, but not limited to,          parties in one or more counterparts, each of which will be considered
earthquakes, loss of utilities, and other disasters. Notwithstanding the       one and the same agreement, and will become effective when one or
foregoing, If a party seeks to excuse itself from its obligations under this   more counterparts have been signed by each party and delivered to the
Agreement due to a force majeure event, that party will promptly               other party. This Agreement may be delivered by facsimile, email or
notify the other party of the delay or non-performance, the reason for         other functionally equivalent electronic means of transmission.
such delay or non-performance and the anticipated period of delay or
non-performance. If the anticipated or actual delay or non-
performance exceeds thirty (30) calendar days, the other party may
immediately terminate the Agreement by giving notice of termination
and such termination will be in addition to the other rights and




INITIAL
E. AUTHORIZATION

I certify that the above Order Form information is true and correct and that I have the legal authority to bind the corporate
Customer described below. Additionally, I agree on behalf of the Customer to abide by Atum’s Acceptable Usage Policy as
well as the General Terms and Conditions above. I understand that any cancellation of Services must be done in writing to
the Billing Department via postal mail at the address listed above or via e-mail to sales@atum.com not less than one month
prior to the proposed termination date.

I hereby authorize Atum Corporation to bill the Customer’s Service fees to the charge account listed below:

Credit Card Type:                  VISA
Credit Card Number:
Expiry Date:
Name on Credit Card:

†   PAD Customers must complete and sign the “PAD Authorization Form”. Please allow 48 hours for processing of PAD accounts.


For Customer:                                                                  For Card Holder

Signature:                  _______________________________                    Signature:                 ______________________________

Name:                                                                          Name:
Date:                       July 19, 2011                                      Date:                      May 17, 2011




TOR_LAW\ 7660515\1




INITIAL

				
DOCUMENT INFO
Shared By:
Tags: Contract, 2011
Stats:
views:1
posted:8/13/2013
language:Latin
pages:9
Description: VPS Contract 2011