TERMS OF SERVICE
The Text of This Agreement was Last Updated on: May 25, 2018
Please read the terms and conditions of this TERMS OF SERVICE AGREEMENT (this “Agreement”) carefully before using (the term “use” when used herein in respect of the Services (as defined below) shall mean access, receipt or use, and using shall have a corresponding meaning) the Services. By clicking on the appropriate checkbox underneath this Agreement or using the Services, Customer (as defined below) agrees to be bound by and comply with this Agreement. If Customer does not accept and agree to be bound by this Agreement, or is not capable of agreeing to the terms of this Agreement, Customer may not use the Services.
As a condition of entering into this Agreement and using the Services, Customer represents and warrants that: (a) Customer has reached the age of majority in Customer’s jurisdiction of residence and has the capacity to enter into a binding legal obligation; (b) if Customer agrees to be bound by this Agreement on behalf of another person or entity, Customer has full legal authority to bind such person or entity to this Agreement; (c) Customer shall comply with this Agreement; and (d) all information supplied by Customer to StockTree Inc. D/B/A OpenChannel (as described below) is true, accurate, current and complete.
OpenChannel offers web-based API and managed hosting services that provides Customer with support tools and an online marketplace for applications (the “Market”) where third-party developers approved by Customer (“Developers”) can offer applications to anyone who is allowed access to the Market by Customer (collectively, the “Services”).
(a) “Customer” means the person or entity that enters into this Agreement with OpenChannel. For greater certainty, if a person or entity agrees to be bound by this Agreement on behalf of another person or entity, and has the necessary legal authority to do so, “Customer” will be construed herein to refer to that other person or entity.
(b) “Customer Data” has the meaning ascribed to it in Section 6(b).
(c) “Effective Date” means the date on which Customer completes the sign-up process and is issued a Subscription Account by OpenChannel.
(d) “Pricing Chart” means the chart of subscription account types and corresponding pricing terms located at https://openchannel.io/plans/ or sent as part of a private quote, as updated from time to time by OpenChannel in its sole discretion.
(e) “Services” means the services described in the Background section of this Agreement.
(f) “OpenChannel” means StockTree Inc., a corporation existing under the Canada Business Corporations Act.
(g) “Subscription Account” means a subscription account of one of the types set out in the Pricing Chart that is chosen by Customer during the sign-up process and that allows the Customer access to and use of the Services.
“Subscription Fee” means a charge in the amount corresponding to the type of Subscription Account (as determined by reference to the Pricing Chart) payable monthly in connection with Customer’s ongoing access to and use of the Services, as may be updated from time to time by OpenChannel in its sole discretion.
“Beta” means any product or service provided by OpenChannel that has not yet been made freely available for use.
2. Provision of the Services.
(a) Setup of the Services. Conditional on Customer making commercially reasonable efforts to cooperate with the reasonable requests of OpenChannel, including providing OpenChannel required access to internal and third party systems (and obtaining all required third party consents to such access, and making all required third party disclosures regarding such access) which Customer wishes the Services to obtain data from, OpenChannel shall provide Customer with reasonable assistance and, if applicable, specialized software to be installed on Customer’s systems which facilitate the transfer of information from Customer’s systems to the Services (“Local Software”) to allow the Services to obtain data from such systems.
(b) Provision of the Services. OpenChannel shall: (i) provide to Customer basic support through the OpenChannel website for the purchased Services at no additional charge as described more fully in Section 9 (Customer Support) below; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime and scheduled upgrades (as described more fully in Section 9 (Customer Support) below), or (b) any unavailability caused by circumstances beyond OpenChannel’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving OpenChannel employees), Internet service provider failures or delays, or the unavailability or modification by third parties of third party sites (including the modification of or removal from the Market of applications by Developers).
3. License Grants.
(a) License Grants by OpenChannel. Subject to the terms and conditions of this Agreement, OpenChannel grants to Customer (i) a non-exclusive, non-transferable license during the Term to permit Customer to access and use the Services over the Internet and through the then available standard interface for the Services; (ii) a non-exclusive, non-transferrable license to use and run the Local Software solely for the purpose of facilitating the transfer of information from Customer’s systems to the Services.
(b) License Grant by Customer. Subject to the terms and conditions of this agreement, including OpenChannel’s confidentiality obligations, Customer grants to OpenChannel a royalty-free, fully paid-up, worldwide license to access, collect, store and use the Customer Data solely to provide the Services to Customer.
(b) Data Processing Policy. To the extent that Customer Data may contain any personally-identifiable data, Customer agrees to OpenChannel’s use, collection and disclosure of such personally identifiable information for the purposes authorized under this Agreement and in accordance with OpenChannel’s Data Processing Policy located at; https://my.openchannel.io/agreement/data_processing_policy.html (the “Data Processing Policy”). The Data Processing Policy is hereby incorporated by reference and forms a part of this Agreement.
(c) Disclaimer. As between OpenChannel and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer understands that the technical processing and transmission of Customer Data is fundamentally necessary to use of the Services. Therefore, Customer expressly consents to OpenChannel’s storage of Customer Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by OpenChannel. OpenChannel shall endeavour to provide industry-standard secure data transmission channels for use by Customer to upload, enter or transmit Customer Data to the Services, for example through the use of the HTTPS protocol. However, despite such efforts, Customer acknowledges and understands that Customer Data may be accessed by unauthorized third parties when communicated across the Internet, network communications facilities, telephone or other electronic means. OpenChannel is not responsible for any Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned and/or operated by OpenChannel, including, but not limited to, the Internet, third party websites, and your local network. Customer agrees that OpenChannel is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet and Customer waives any and all claims against OpenChannel in connection therewith.
(d) Suspension of Access. In addition to any other suspension or termination rights of OpenChannel pursuant to this Agreement, certain extraordinary circumstances may require OpenChannel to suspend or terminate (where appropriate), as determined in OpenChannel’s discretion, Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (a) prevent damages to, or degradation of the integrity of, OpenChannel’s network; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect OpenChannel from potential legal liability or harm to its reputation or business. OpenChannel shall use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, OpenChannel shall promptly restore Customer’s access to the Services as soon as the event giving rise to the suspension has been resolved as determined in OpenChannel’s discretion. Nothing contained in this Agreement will be construed to limit OpenChannel’s actions or remedies or act as a waiver of OpenChannel’s rights in any way with respect to any of the foregoing activities. OpenChannel shall not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services under this provision.
5. Customer ID; Limitations; Customer Responsibilities.
(a) Limitations. Customer shall not permit any other person to: (a) modify, adapt, alter or translate any software underlying the Services (including the Local Software), except as expressly allowed hereunder; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any other person; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services (including the Local Software); or (d) use or copy the any software underlying the Services (including the Local Software) except as expressly allowed hereunder.
(b) Customer Responsibilities. For greater certainty but without limiting the generality of the foregoing, Customer shall not:
(i) use or permit any other person to use the Services except as permitted by this Agreement;
(ii) use or permit any other person to use the Services to collect, transmit or process: (A) infringing, obscene, threatening, offensive, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (B) any non-public or personally-identifiable data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity;
(iii) use or permit any other person to use the Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(iv) continue to use the Services in a manner that interferes with or disrupts the integrity or performance of the Services following a notice from OpenChannel of such use;
(v) attempt to gain unauthorized access to the Services or its related systems or networks;
(vi) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services;
(vii) use any data mining, robots or similar data gathering or extraction methods;
(viii) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or
(ix) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.
6. Reservation of Rights.
(a) Rights Reserved by OpenChannel. OpenChannel expressly reserves all rights in the Services and all other materials provided by OpenChannel hereunder not specifically granted to Customer. It is acknowledged that all right, title and interest in the Services and all other materials provided by OpenChannel hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with OpenChannel (or third party suppliers, if applicable) and that the Services and all other materials provided by OpenChannel hereunder are licensed on a subscription basis and not “sold” to Customer.
(b) Rights Reserved by Customer. Customer expressly reserves all rights in (collectively, the “Customer Data”) any data, information, records and files that Customer or any other person acting with Customer’s permission loads, transmits to or enters into the Services, including (i) data that the Services is configured to obtain from Customer’s servers or systems or from third parties on Customer’s behalf, and (ii) data that is transmitted from Customer’s servers or systems to third parties (including Developers) in connection with the Services, in each case including all results from processing such data, including compilations, and derivative works thereof, subject to the license that Customer grants OpenChannel in accordance with the provisions of this Agreement, and provided that Customer does not acquire any intellectual property rights in the Services, or any elements thereof.
7. Customer Data.
(a) Responsibility. Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data. Customer represents and warrants that Customer has all necessary third party consents and permissions, and has made all required third party disclosures, regarding all uses, disclosure and transmission of Customer Data in connection with this Agreement, including to OpenChannel and third parties (including Developers). OpenChannel shall use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.
(b) Restrictions. Customer agrees not to upload or transmit, or ask OpenChannel to obtain from third parties, any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; or (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.
(c) Indemnity. Customer agrees to indemnify and hold harmless OpenChannel, its employees, officers, directors and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including, but not limited to, any clients, the Canadian government and provincial taxing authorities) relating to: (a) Customer Data, (b) Customer’s breach of any of its obligations, representations and/or warranties under this Agreement; or (c) except for claims for which OpenChannel is liable under Section 13 (IP Indemnity) below, Customer’s use of the Services, including in combination with any third party software, application or service.
This Agreement shall commence on the Effective Date and continue in force until terminated by either Customer or OpenChannel in accordance with its provisions (the “Term”).
9. Customer Support.
OpenChannel shall provide the following standard customer support to Customer:
(a) Web Support. Customer shall have access to OpenChannel’s technical support web site and may use the web site to submit service requests. OpenChannel shall use reasonable efforts to respond within three business days to such service requests. Web support will not include, and OpenChannel shall not provide, any tax or other professional or expert advice of any kind, including, but not limited to any advice regarding the appropriate handling of tax and accounting issues. OpenChannel shall use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation; provided, however, that OpenChannel will not be required to provide a correction for all such nonconformities.
(b) Service Upgrades and Scheduled Downtime. OpenChannel shall update the Services in its sole discretion. OpenChannel may from time to time schedule downtime for maintenance and upgrades.
(c) Data Storage and Backup. It is Customer’s responsibility to backup onto Customer’s own local system all Customer Data, including all data, files and records that Customer submits to OpenChannel.
10. Fees and Payment.
(a) Subscription Fee. Customer shall pay to OpenChannel a monthly or annual Subscription Fee during the Term.
(b) Invoices. From time to time, OpenChannel shall prepare and send to the Customer, at the contact information on file with OpenChannel, invoices for any fees and charges that have become due and payable under this Agreement. Unless otherwise expressly stipulated in an invoice, Customer shall pay (or, if Customer is paying through a credit card, Customer authorizes OpenChannel to charge to Customer’s credit card) all invoiced amounts within five calendar days of the invoice date.
(c) Late Payment. Customer may not withhold or “setoff” any amounts due under this Agreement. OpenChannel reserves the right to suspend Customer’s access to the Services until all due amounts are paid in full.
(d) Certain Taxes. Fees and charges quoted in this Agreement do not include, and Customer shall pay, defend, indemnify and hold OpenChannel harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of OpenChannel.
11. Confidential & Proprietary Information.
Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential & Proprietary Information” includes (i) all information disclosed by Discloser to Recipient during the Term of this Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; (ii) all parts of the Service, whether marked as “confidential” or “proprietary” or not, will be considered to be OpenChannel Confidential & Proprietary Information; and (iii) all Customer Data, whether marked as “confidential” or “proprietary” or not, will be considered Customer’s Confidential & Proprietary Information; provided, however, that Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(a) Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than due diligence and reasonable care be exercised. Each party shall be deemed to have fulfilled its confidentiality obligations under this Section 11 (Confidential & Proprietary Information ) if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of Discloser’s written request or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. OpenChannel may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, and/or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
(b) Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
12. Warranties and Disclaimers.
Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 12 (WARRANTIES AND DISCLAIMERS) THE SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OpenChannel TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. OpenChannel HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. OpenChannel DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
13. Limitation of Liabilities.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND SUBJECT TO SECTION 14(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES AND CHARGES COLLECTED BY OPENCHANNEL FROM CUSTOMER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTH PERIOD. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT SET OUT ABOVE. IN NO EVENT SHALL OpenChannel’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL OpenChannel BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
(c) THE PROVISIONS OF SECTIONS 14(a) AND 14(b) SHALL NOT BE APPLICABLE TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES DIRECTLY FROM:
(i) CUSTOMER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT; OR
(ii) A BREACH OF A PARTY’S OBLIGATIONS UNDER SECTION 11.
(a) Notices to OpenChannel. Notices by Customer to OpenChannel shall be effective immediately upon being delivered by email, and must be in writing and sent to the email address set out below. OpenChannel may change its contact information by updating this Agreement on its website or by providing notice of such change to Customer.
OpenChannel Contact Information:
(b) Notices to Customer. Notices by OpenChannel to Customer shall be effective immediately upon being delivered by email to the email address associated with Customer’s Subscription Account. Customer is solely responsible for ensuring at all times that the email address associated with Customer’s Subscription Account is accurate. OpenChannel may also choose, in its sole discretion, to provide notice to Customer by displaying such notice through the available interfaces on the Services.
(a) On Notice. Either Party can terminate this Agreement at any time by providing the other Party with notice of such termination.
(b) Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party breaches any material provision thereof and fails within 15 days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.
(c) Survival . Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing, including any Termination Charge), including all licenses granted hereunder, shall immediately terminate except as provided below; (b) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 11 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 6 (Reservation of Rights), Section 7(b) and 7(c) (Customer Data), Section 11 (Confidential & Proprietary Information), Section 12 (Warranty Disclaimer), Section 13 (Limitation of Liabilities), Section 15(c) (Survival), and Section 16 (General Provisions).
16. General Provisions.
(a) Assignment. Neither Party may assign this Agreement to any third party without the other Party’s prior written consent, except this Agreement may be assigned by either Party (i) to any party that controls, is controlled by, or is under common control with such Party, or (ii) pursuant to a transfer of all or substantially all of such Party’s business or assets, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this section shall be void. The terms of this Agreement shall be binding upon permitted assignees. This Agreement will enure to the benefit of and be binding upon the Parties, their permitted successors and assigns.
(b) Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties shall initiate any lawsuits in connection with this Agreement in Toronto, Ontario, and irrevocably consent to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(c) Right to List As A Customer. Customer agrees that OpenChannel may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.
(d) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(e) Force Majeure. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision.
(f) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.
(g) Waiver. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions.
(h) Independent Contractors. Customer’s relationship to OpenChannel is that of an independent contractor, and neither Party is an agent or partner of the other. Customer shall not have, and shall not represent to any third party that it has, any authority to act on behalf of OpenChannel.
(i) Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and sets out all the covenants, promises, warranties, representations, conditions, understandings and agreements between the Parties pertaining to the subject matter of this Agreement. This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no covenants, promises, warranties, representations, conditions, understandings or other agreements, oral or written, express, implied or collateral between the Parties in connection with the subject matter of this Agreement except as specifically set forth in this Agreement or contemplated by this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
(j) Amendments. No amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, shall be binding unless executed in writing by the Party or Parties to be bound thereby. Any waiver by one Party of any default by the other Party shall not affect or impair any rights of the first Party arising from any subsequent default by that other Party.
(k) Further Assurances. The Parties agree to do or cause to be done all acts or things necessary to implement and carry into effect this Agreement to its full extent.
(l) English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
(m) Consent to Electronic Contract. OpenChannel and Customer agree that this contract shall be created in electronic form and may be executed by electronic means (including by signing up for a customer account). A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
SERVICE LEVEL TERMS
“OpenChannel Exclusion” has the meaning set out in Section 5 of this Appendix 1.
“Monthly Uptime Percentage” means, in respect of a calendar month, the percentage of monthly uptime for the OpenChannel Platform calculated as follows (and expressed as a percentage): A/(B-C), where “A” means the number of minutes when the OpenChannel Platform was available; “B” means the total number of minutes in that month; and “C” means the number of minutes in that month when the OpenChannel Platform was unavailable as a result of a OpenChannel Exclusion. As used in this definition, “available” means that the OpenChannel service has no external connectivity, and “unavailable” has the opposite meaning.
“Monthly Uptime SLA” has the meaning set out in Section 2 of this Appendix 1.
“Service Level” or “SLA” means each of the service level performance standards described in Section 2 of this Appendix 1.
“Service Credit” means an amount (expressed in US Dollars and calculated as set forth in Section 3 of this Appendix 1) that OpenChannel may credit to Customer for a SLA Failure as liquidated damages and a sole and exclusive remedy for the damages that may be suffered by Customer as a result of such SLA Failure.
“SLA Failure” means any failure by OpenChannel to attain an SLA in a calendar month that is not caused, directly or indirectly, by a OpenChannel Exclusion.
2. Service Levels
OpenChannel will use commercially reasonable efforts to make the OpenChannel Platform available with a Monthly Uptime Percentage of at least 99.99% in each case in any calendar month during the Term (the “Monthly Uptime SLA”).
3. Service Credits
If OpenChannel fails to meet the Monthly Uptime SLA in any month during the Term for reasons other than a OpenChannel Exception, OpenChannel may credit to Customer a Service Credit calculated as a percentage of the total fees and charges paid by Customer in respect of that month (excluding one-time payments), as determined by reference to the following table:
Monthly Uptime Percentage Service Credit Percentage
Less than 99.99% but equal or greater than 99.00% 10%
Less than 99.00% 25%
In any month when a Service Credit is due in accordance with this Section 3, OpenChannel will apply such Service Credit only against future OpenChannel payments otherwise due from Customer. At OpenChannel’s discretion, OpenChannel may issue the Service Credit as credit to the credit card on file for Customer. Except as expressly set out herein, a Service Credit will not entitle Customer to any refund or other payment from OpenChannel, and will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD). Customer’s sole and exclusive remedy for any SLA Failure or any other unavailability, non-performance, or other failure by OpenChannel to provide the OpenChannel Platform or the Services is the receipt by Customer of a Service Credit (if eligible) in accordance with the terms of this Appendix 1.
4. Credit Request and Payment Procedures
To receive a Service Credit, you must submit a claim to OpenChannel at the following email address: email@example.com. To be eligible, the Service Credit claim must be received by OpenChannel by the end of the second billing cycle after which the incident occurred and must include:
a. the words “SLA Credit Request” in the subject line;
b. the applicable calendar month and the specific dates and times of each alleged OpenChannel Platform unavailability incident in respect of which the claim is made;
c. the affected account name; and
d. your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).
If the Monthly Uptime Percentage for the calendar month in respect of which the Service Credit claim is made is confirmed by OpenChannel, and if OpenChannel determines, in OpenChannel’s sole discretion, that an SLA Failure has occurred, then OpenChannel will apply the Service Credit to Customer within one billing cycle following the month in which that Service Credit claim is confirmed in accordance with this Section. Notwithstanding anything in this Appendix 1, any failure by Customer to provide sufficient details and other information to confirm and corroborate the Service Credit claim as required above will disqualify Customer from receiving a Service Credit for such claim.
5. OpenChannel Exclusions
No failure by OpenChannel to attain an SLA will be considered an SLA Failure and no Service Credit will be provided in respect of such failure, if such failure to attain an SLA is caused, directly or indirectly, by (each, a “OpenChannel Exclusion”): any unavailability, suspension or termination of the OpenChannel Platform, or performance issues: (i) that result from a suspension due to scheduled downtime or emergency maintenance as described in this Agreement ; (ii) caused by any Force Majeure event or Internet access or related problems beyond the demarcation point of OpenChannel; (iii) that result from any actions or inactions of Customer or any third party; (iv) that result from (independently or in combination) Customer’s equipment, software or other technology or any third party equipment, software or other technology (other than third party equipment within OpenChannel’s direct control); (v) arising from OpenChannel’s suspension or termination of Customer’s right to use the OpenChannel Platform or the Services in accordance with this Agreement; or (vi) involves a product or service that is currently in Beta.