WebSan Solutions Hosting and Services Agreement
This is a Contract between you ("Company" or "Client") and WebSan Solutions Inc. ("WebSan") of 245 Fairview Mall Drive, Suite 200, Toronto, ON M2J 4T1, Canada. This contract applies to any WebSan software service, including, but not limited to: Moniroo® portal as well as Hosted and Online (Microsoft) Dynamics GP/NAV/Business Central and Dynamics CRM (365). This also governs all professional services delivered by WebSan to Company.
BACKGROUND:
(A) The Client has identified a need for expert help and assistance in the performance and completion of a specific Project (defined below) and wishes to engage the services of WebSan Solutions Inc.
(B) WebSan Solutions Inc. has the required level of expertise and is in the business of providing the Services.
(C) The Client wishes to obtain and WebSan Solutions Inc. has agreed to provide the Services on the terms of this Agreement. ACCEPTANCE:
BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING OR ENTERING INTO AN ORDER THAT REFERENCES THIS AGREEMENT, OR (3) BY EXECUTING A PHYSICAL COPY OF THIS AGREEMENT, COMPANY ACCEPTS THIS AGREEMENT AND AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (INCLUDING WHERE SUCH INDIVIDUAL IS A USER ACCEPTING AN ORDER ON BEHALF OF SUCH COMPANY OR OTHER LEGAL ENTITY), SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS (INCLUDING UNDER APPLICABLE AGE OF MAJORITY LAWS), IN WHICH CASE THE TERM “COMPANY” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS OR SERVICES.
EFFECTIVE DATE:
THIS AGREEMENT MAY BE ACCEPTED BY ANY OF THE METHODS OF ACCEPTANCE AS NOTED ABOVE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF SUCH ACCEPTANCE.
THIS AGREEMENT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PREVIOUS AND CONTEMPORANEOUS AGREEMENTS, PROPOSALS OR REPRESENTATIONS, WRITTEN OR ORAL, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. WEBSAN RESERVES THE RIGHT TO UPDATE AND CHANGE THIS AGREEMENT FROM TIME TO TIME AND THE COMPANY'S CONTINUED USE OF THE SERVICES NOTES YOUR ACCEPTANCE AND AGREEMENT TO THE UPDATED TERMS. WE WILL NOTIFY YOU OF ANY SUCH CHANGES BY WAY OF EMAIL OR NOTICE ON OUR WEBSITE.
TERMS:
- DEFINITIONS
Associates
Those persons engaged by or on behalf of WebSan Solutions Inc. to provide the Services to the Client in connection with the Project on a consultancy basis or otherwise.
Billing Rates WebSan Solutions Inc. applicable charges for the Services set out in Schedule A as amended from time to time and notified to the Client. Business Days A day other than a Saturday, Sunday or public holiday in Canada. Document Includes, in addition to any document in writing, any diagram, design, plan, picture or other image, tape, disk or other device or record embodying Information in any form. Information All and any information and materials owned and disclosed by the Client to WebSan Solutions Inc. or its Associates or which WebSan Solutions Inc. or its Associates obtains while visiting the Client's premises without limitation. Intellectual Property Rights Patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Product Any computer program that is produced as a result of the execution of the Services. Project
The work to be carried out by WebSan Solutions Inc. for the Client as set out in the Statement of Work.
Services
The services to be provided by WebSan Solutions Inc. or its Associates under this agreement as set out in the Statement of Work including any and all Documents, goods, services or advice provided by WebSan Solutions Inc. or its Associates in connection with the Project.
Specified Sum
The amount to be paid by the Client to WebSan Solutions Inc. as detailed in the Statement of Work.
Start Date
The date for the commencement or provision of the Services.
Statement of Work
The statement of work entered into between the Client and WebSan Solutions Inc. setting out the Services that the Client has requested from and to be provided by WebSan Solutions Inc.
2. PROPOSED SERVICES AND CONSIDERATION
2.1. WebSan Solutions Inc. shall provide the Services (as set out in the Statement of Work) to the client subject to the terms of this agreement.
2.2. The Statement of Work shall be agreed by the parties in the following manner:
a) The Client shall provide WebSan Solutions Inc. with a request for a Statement of Work setting out the requirements and specifications of the services which it requires,including a description of what work is to be done and such other information as WebSan Solutions Inc. may request to allow it to prepare the Statement of Work for approval;
b) WebSan Solutions Inc. shall, as soon as reasonably practicable, provide the Client with a draft Statement of Work for approval and the parties shall discuss and agree the Statement of Work;and
c) Once agreed, the Statement of Work shall be signed by both parties and form part of this agreement.
2.3. Once the Statement of Work has been agreed and signed in accordance with clause 2.2.c), no amendment shall be made except in accordance with the terms of this agreement.
2.4. The Statement of Work does not form a separate contract and shall be part of this agreement and subject to its terms.
2.5. In consideration of the performance of the Services, the Company shall pay to WebSan the fees outlined in SOW governing the implementation or setup of the Services. Additional modules may be added to the scope of the hosted services (eg: payroll). Any implementation fees will be determined outside the terms of this agreement. If the Company is delinquent with its payment, WebSan reserves the right to terminate this agreement and discontinue hosting/software and professional services. 10 days notice will be given to the Company. WebSan shall be reimbursed for all reasonable travel and other related project expenses, on a time and materials basis, incurred by WebSan in the course of providing services. All expenses will be approved in advance by the Company.
2.6. Post-Implementation (completion of terms of the SOW), and on a month to month basis, user license subscription counts (Dynamics and Microsoft 365) are subject to the terms which can be seen in the chart below in section 2.6 a)
b) WebSan and other 3rd party apps follow the "annual" terms as above.
c) All software licenses and adjustments in the period, are billed on a monthly cycle on the 10th of each month with payment due/processed on the 15th.
d) In the event the Client terminates Microsoft licensing issued under NCE as above, pursuant to Section 17, WebSan shall invoice FULL balance of fees due for licenses up through the renewal date. Such invoices will be Due Upon Receipt. Payment in full must be remitted within 5 business days, or else all licenses will be suspended.
2.7. The client hereby agrees to pay the project management fees to WebSan for the duration of the ERP project at a rate of $1000 per week, notwithstanding any budgeted amount or schedule. WebSan shall provide project management services for the duration of the project, regardless of any delays or issues that may arise, including those attributable to the client's actions or inactions. The project management fees cover the services provided by WebSan for overseeing the project's progress, ensuring timely completion, and managing any issues that may arise during the project. Payment of the project management fees shall be made by the client to WebSan within 10 days of the receipt of the invoice. Any late payment may result in additional fees or suspension of services until payment is received. This agreement shall be binding upon the parties and their respective successors and assigns.
3. CHANGES TO SERVICES
Because of the nature of the work to be undertaken by WebSan Solutions Inc., both parties accept that it may be necessary to agree to alter or adapt the Statement of Work and the Services to be provided. If the Client wishes to change the scope or execution of the Services, the provisions of this clause 3 shall apply.
3.1. If the Client wishes to make a change to the Services, the Client shall submit details of the requested change to WebSan Solutions Inc. in writing to
3.2. WebSan Solutions Inc. shall be entitled to review the requested change and shall provide the Client with written details of the impact the proposed change will have on:
a) the Services;
b) the Specified Sum;
c) the time for completion of the Project and the likely time required to implement the proposed change; and
d) any of the terms of this agreement and the Statement of Work.
3.3. WebSan Solutions Inc. may at any time and without giving the Client prior notification make any changes to the Services that are necessary to comply with any applicable safety or other statutory requirements, or make any changes to the Statement of Work which does not materially affect the nature or quality of the Services.
3.4. Unless both parties agree to any changes or additions to the Statement of Work or the Services and provide written confirmation to that effect, there shall be no change to the Services or any other terms of this agreement and any relevant Statement or Work.
3.5. WebSan Solutions Inc. reserves the right to revise the Specified Sum to take into account any changes to the Services or additional works requested by the Client in accordance with clause 3.2 and shall be entitled to charge for the time it spends on dealing with any such requests on a time and materials basis. WebSan Solutions Inc. will inform the Client of any changes in the Specified Sum in writing in advance and these changes will not be valid until accepted in writing by the Client.
3.6. Except in the case of emergency, all changes shall be agreed in advance. Where a change is requested as a result of an emergency, the Client and WebSan Solutions Inc. agree that the changes shall take effect immediately and WebSan Solutions Inc. shall be entitled to confirm the changes made and any revision to the Specified Sum at a later date.
4. NON-DISCLOSURE AND CONFIDENTIALITY
4.1.WebSan Solutions Inc. acknowledges that:
a) the Information is of commercial value and may be of interest and value to the competitors of the Client and accordingly considerable loss to the Client could be caused by a failure to
keep the Information confidential; and
b) certain of the Information may be patentable or capable of being the subject of a registered design or capable of obtaining similar protection anywhere in the world and premature disclosure of it may prejudice the ability of the Client to obtain such protection.
4.2. Where required, WebSan Solutions Inc. provides an agreed form of Reciprocal Confidentiality Agreement which can be found in the proposal. If the Client wishes to enter into a formal confidentiality agreement, it is the Client’s responsibility to sign and return a completed form of this agreement to WebSan Solutions Inc. which will act as a binding document on both parties. No other confidentiality agreement shall be accepted or entered into by WebSan Solutions Inc..
4.3. In consideration of the Client agreeing to disclose the Information to WebSan Solutions Inc., WebSan Solutions Inc. undertakes to:
a) use such Information only for the provision of the Services as part of the Project
b) keep secret and confidential all Information that it may acquire in any manner;
c) permit access to all Information only to such of its employees and contracted Associates, as need such Information to provide the Services provided that the WebSan Solutions Inc.
informs each of them of the confidential nature of the Information and procures compliance with WebSan Solutions Inc.’s obligations under this agreement;
d) make copies of or record the Information only to the extent strictly necessary for the Project. Any such copies and records shall be the property of the Client; and
e) disclose the results of the Project to the Client on terms that they may freely use or disclose them.
4.4. WebSan Solutions Inc. shall not publish or otherwise disclose the results of the Project to any third party without the Client’s prior written consent.
4.5. This obligation of confidentiality will remain in force beyond the cessation or other termination of this agreement.
4.6. This clause shall not apply to any Information, Documents, or any other materials and data which are already in the public domain at the time when they are provided to WebSan Solutions Inc. and shall cease to apply where WebSan Solutions Inc. is required by law to make a disclosure or if at any time the information becomes public knowledge through no fault of WebSan Solutions Inc.
5. TERM OF THIS AGREEMENT
The term of this Agreement shall commence on the date of this Agreement and shall continue for successive one year periods, which shall automatically renew under the same terms and condition set forth herein without further documentation being required, subject to WebSan's rights of revision as described below, and unless and until either party terminates the Agreement in accordance with section 17 herein (the "Term").
6. SUPPORT SERVICES (WebSan Hosted Software only)
WebSan shall provide technical and support services ("Support Services") to Company on a daily basis via telephone/web support, however WebSan's Support Services shall be limited to providing matters pertaining to WebSan's servers, Internet connection, WebSan's corporate policies and this Agreement. WebSan does not provide technical support for any third-party software of any kind, downloaded from the Internet or otherwise acquired, and incorporated by the Company into the server site. WebSan does not provide Dynamics CRM application support of any kind, including the Microsoft Outlook plug-in or server-side synchronization. Support Services are not included in the Services Fee and is invoiced to the Company according to Schedule A.
7. THIRD-PARTY SOFTWARE PROHIBITED
(WebSan Hosted Software only) Company is strictly prohibited from installing any third-party software on WebSan's servers without the express written authorization of WebSan. In the event that the authorized third-party software disrupts WebSan's server, WebSan shall have the right to temporarily disable the software until the problem can be resolved. In the event that the Company installs third party software on WebSan's servers without the express written authorization of WebSan, WebSan shall have the right to terminate the Services without notice pursuant to section 17 herein.
8. DISK SPACE (WebSan Hosted Software only)
WebSan will provide the amount of hard disk storage space required for Dynamics GP/NAV and/or Dynamics CRM and/or Moniroo® to function properly within the scope of the SOW hosted on WebSan servers. In the event that the Company exceeds its allotted disk space (more than 20GB) due to modifications of the scope of implementation services (eg: storing employee pictures/files, etc), WebSan shall notify the Company to delete the additional files and the Company agrees to delete such additional files or pay supplemental charges for additional disk space. Online software provisioned by Microsoft is subject to the terms and conditions and licensing of that software.
9. MINIMUM USER REQUIREMENTS (WebSan Hosted Software only)
a. Min PC operating system requirements are:
- Windows 7 with SP 1 or higher
- IE 10 or higher preferred, Google Chrome with IETab plugin supported
- All Citrix or RDP capable printers support, certain consumer-grade printers may not work with the WebSan Cloud environment, in such rare circumstances we are unable to support these devices.
b. Portable device support includes:
- All devices capable of running Microsoft RD Client 8.1.28 (For Android) or 8.1.17 (For iOS)
10. SECURITY (WebSan Hosted Software only)
The Company's Dynamics GP/NAV and/or Dynamics CRM environment will be protected by the WebSan firewall and other related security measures, which will consist of hardware and software designed and configured to control or limit access to our computer and network resources.
11. BACK-UP DATA, DISASTER RECOVERY and SERVICE LEVELS (WebSan Hosted Software only)
WebSan shall back up the Dynamics GP/NAV environment and Company's data daily and retain those back-ups on site.
(i) Note that remote backups are taken every 30 minutes offsite to a disaster recovery facility In the event that Company's data is lost from Company's servers, WebSan shall restore the back¬up data to Company's servers.
WebSan shall not be responsible for files that cannot be recovered due to corrupt data, fires or any other disaster or event not in control of WebSan.
WebSan shall provide Company the ability to access system data on Company's Dynamics GP/NAV and/or Dynamics CRM environment and make changes with a password set by the Company.
Company's connection will be secured by the firewall referred to above. The system will be accessible by the Company 24/7 with a 99.5% uptime (calculated monthly) guarantee (.85 hrs/week downtime allotted but not expected) unless the Company is notified of required downtime for maintenance, upgrades, etc. The Company will be notified in advance of planned downtime and all efforts will be made to perform system maintenance outside of normal business hours.
(i) Planned downtime requires 1-hour minimum notice from WebSan
(ii) Recourse to the Company if WebSan fails to maintain a 99.5% SLA is as follows:
99.5%-100%: 0% credit for the month
98.5%-99.5%: 25% credit for the month
97%-98.5%: 50% credit for the month
Under 97%: 100% credit for the month
- These would all be calculated monthly and the credit would be in the form of credit for future service.
12. COMPANY ACCESS & OBLIGATIONS
12.1. The Client shall co-operate with WebSan Solutions Inc. or any Associate appointed by WebSan Solutions Inc. in all matters relating to the Services and shall, at its own expense,
a) provide WebSan Solutions Inc. with, in a timely manner, all Documents and data or other information necessary for the completion of the Services, to enable WebSan Solutions Inc. to provide the Services in accordance with the Statement of Work agreed in writing between the parties; and
b) retain duplicate copies of all documents or other material and data or other information provided to WebSan Solutions Inc. and shall insure against its accidental loss or damage. WebSan Solutions Inc. shall have no liability for any such loss or damage, howsoever caused.
12.2. The Client shall be responsible for the content of all Documents or other materials and shall ensure the accuracy of all data or other information provided to WebSan Solutions Inc. in the course of this Agreement.
12.3. The Client shall ensure that WebSan Solutions Inc. is accorded sufficient access to any of the Client's premises, information, data or personnel and use of any equipment, including remote access to its computer systems, as is reasonably necessary for the completion of the Specified Services. Where WebSan Solutions Inc. requires access to any third-party premises, information, data or personnel the Client will make all reasonable efforts to arrange this for WebSan Solutions Inc.
12.4. At any time after the date of this Agreement and for a period of 12 months after completion of the Services, the Client hereby undertakes not to directly or indirectly attempt to solicit, entice away, use the services of or employ (whether as an employee, consultant or otherwise), any person who is, or has been, engaged as an employee or Associate of WebSan Solutions Inc. in the provision of the Services. The restrictions contained in this Clause shall not apply to the extent that the parties agree otherwise in writing.
12.5. In the event that the Client breaches the provisions of clause 12.4 then it shall forthwith pay WebSan Solutions Inc. by way of liquidated damages (and as genuine pre-estimate of WebSan Solutions Inc.’s losses) an amount equal to:
a) In the case of an employee, the maximum salary of such employee at the time that the employee left the employment of WebSan Solutions Inc.; or
b) In the case of an Associate, an amount equal to 220x WebSan Solutions Inc.’s then current list (i.e. undiscounted) daily fee rate for such Associate.
12.6. For the avoidance of doubt both parties agree that WebSan Solutions Inc. is not supplying consultancy services as an Employment Business as defined in the Employment Agencies Act 1973 and that accordingly the Conduct of Employment Agencies and Employment Business Regulations 2003 shall not apply.
13. COMPANY DATA AND INTELLECTUAL PROPERTY RIGHTS
WebSan owns and shall continue to own all proprietary rights in all custom code and content that WebSan supplies as part of the Services. Company owns and shall continue to own all proprietary rights to the system data (Company database(s)).
13.1. Unless agreed otherwise in writing between the Client and WebSan Solutions Inc.:
a) WebSan Solutions Inc. does not assign to the Client the Intellectual Property created by WebSan Solutions Inc. in providing the Services as part of the Project or provision of the Product, but throughout the term of this Agreement, shall grant the Client a temporal, revocable, royalty-free licence to use, edit, modify, or create derivative works of the customer code developed by WebSan for the Client and any associated documentation and document templates provided by WebSan for the Client's internal business purposes
13.2. Each party warrants to the other that no Documents or other material and data or other information and devices or processes provided for use in the provision of the Services infringe any third-party intellectual property rights.
13.3. If a claim for the infringement of third-party Intellectual Property Rights is made or threatened against WebSan Solutions Inc. in relation to Documents or other material, data and other information or devices and processes provided to WebSan Solutions Inc. by the Client for use in the provision of the Services or which the Client specified should be used by WebSan Solutions Inc. in the provision of the Services, the Client shall indemnify WebSan Solutions Inc. against any and all costs, expenses, damages or other losses suffered, or payments made by WebSan Solutions Inc. in connection with the claim and any associated judgment or settlement whether or not such infringement was reasonably foreseeable.
14. REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATIONS
a) WebSan represents and warrants to the Company that:
(i) It has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;
(ii) it shall use commercially reasonable efforts to perform the Services as described in Schedule "A" attached hereto (except to the extent the Services modified by the parties from time to time by mutual written agreement) and shall provide such Services in a professional manner consistent with industry standards.
(iii) OTHER THAN THE EXPRESS WARRANTIES STATED ABOVE, WEBSAN MAKES NO OTHER REPRESENTATIONS OR WARRANTIES HEREUNDER OF ANY KIND, EITHER EXPRESS OR IMPLIED, IN RELATION TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL WEBSAN BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL OR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, LOSS OF REVENUE OR LOSS OF DATA, OR AS A RESULT OF ANY INTERRUPTION OF SERVICE.
b. Company Represents and warrants to WebSan that:
(i) It has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;
(ii) All Company data provided hereunder shall be wholly original to the Company, and Company data shall not violate any laws of any country and shall not infringe any other party's copyright, patent, trademark or other intellectual property right.
(iii) Company shall not, nor shall it allow, authorize or assist any third party to, use the system for any illegal purpose whatsoever.
c. Each of the Parties hereto agree to indemnify and save harmless the other, and any of its respective successors, licensees and assigns, from any and all losses, costs, liabilities, damages and expenses (including reasonable lawyers' fees) resulting any breach of any representation, warranty and/or covenant under this Agreement.
15. DISPUTE RESOLUTIONS
15.1. If any dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it, the parties will follow the procedure set out in this clause 15:
a) Either party shall provide the other with written notice of the dispute setting out its nature
and full particulars and shall attempt in good faith to negotiate a settlement.
b) If the matter is not resolved by negotiation within 30 days, the parties will attempt to settle the dispute by mediation.
15.2. No party may commence any court proceedings in relation to any dispute until 42 days after the service of the notice requesting mediation provided that the right to issue proceedings is not prejudiced by a delay.
15.3. If the parties fail to agree terms of settlement within 42 days of the start of the first meeting held under such mediation procedure, or fails to participate in the mediation, the dispute may be referred to resolution by the courts in the province of Ontario, Canada.
16. CHARGES AND PAYMENT
16.1. In consideration of the provision of the Services by WebSan Solutions Inc., the Client shall pay the Specified Sum.
a) An Accounts Payable email address and Contact information will be provided to
16.2. All Services are provided on a time and materials or fixed-fee basis (as outlined in the SOW) and are subject to an initial estimate being agreed between the parties in advance of the Services being provided by WebSan Solutions Inc. on the following basis:
a) The charges payable shall be calculated in accordance with WebSan Solutions Inc.’s standard daily fee rates, as amended from time to time in accordance with clause 16.5;
b) WebSan Solutions Inc.’s standard daily fee rates are calculated per person on the basis of a seven (7) hour day, worked during Working Hours;
c) WebSan Solutions Inc. shall be entitled to charge additional fees equal to an hourly rate calculated pro-rata accordingly to the applicable daily rate for each part day worked or for any time worked outside the Working Hours by any employee or Associate of WebSan Solutions Inc.; and
16.3.WebSan Solutions Inc. shall invoice the Client for the time, expenses and materials in advance of the Services being provided under each Statement of Work issued. Additional Statements of Work shall be subject to further charges and invoices.
16.4. Any daily rate contained in Schedule A and stated in any Statement of Work excludes the cost of hotels, subsistence, travelling and other ancillary expenses reasonably incurred by the employees or Associates of WebSan Solutions Inc. in connection with the Services, the cost of any materials and the costs of any services reasonably and properly provided by third parties where required by WebSan Solutions Inc. and such expenses, materials and third-party services shall be invoiced by WebSan Solutions Inc. to the Client in addition to the Specified Sum.
16.5.The parties agree that WebSan Solutions Inc. may review and increase its standard daily fee rates provided that such charges cannot be increased more than once in any 12-month period.
16.6. The Client shall pay each invoice submitted by WebSan Solutions Inc. in full and in cleared funds in advance of the Services being provided unless otherwise agreed in writing between the parties and set out in the Statement of Work.
16.7.Without prejudice to any other right or remedy it may have, if the Client fails to pay any invoice full in advance of the Start Date, WebSan Solutions Inc. reserves the right to delay providing the Services until full payment is received and to charge interest on the overdue invoice at the rate of 4% per annum above from time to time on a daily basis.
17. TERMINATION
17.1. This agreement remains in force until:
(i)The Services are completed as defined in the Statement of Work(s), or
(ii)The time paid for by the Client has been used in full.
Upon completion or exhaustion, both parties' obligations automatically end.
17.2. Either party may terminate this agreement with one month's written notice before the Start Date of the project referenced in the corresponding statement of work.
17.3. Either party may terminate this agreement immediately if:
(i) The other party is in fundamental breach and doesn't remedy it within five working days after being requested in writing to do so (assuming they are capable of remedy).
(ii) The other party goes into liquidation, becomes bankrupt, or has a receiver appointed.
(iii)The other party suspends or ceases a significant part of its business.
17.4. If the Client terminates before Services completion, WebSan Solutions Inc. is entitled to payment for completed work.
17.5. Termination/expiration of this agreement ends all Statements of Work.
17.6. Termination/expiration doesn't affect accrued rights, remedies, obligations, or liabilities.
17.7. Either party may terminate this Agreement with 60 days' written notice after project commencement per the statement of work (termination for convenience).
17.8. Either party may terminate this Agreement with 10 days' written notice if the other is in material breach. WebSan can terminate immediately for:
(i) Illegal system use.
(ii) Company Content breaching laws or third-party rights.
(iii) Unauthorized third-party software installation.
(iv) Non-payment with a 10-day notice.
(v) Violation of SOW (Statement of Work) Terms and Conditions under Section 2, with two consecutive unresolved red flags.
18. NOTICE
a) Any notice required or permitted to be given hereunder shall be in writing and shall be deemed given
(i) when delivered personally to any officer of the party being notified; or (ii) on the third business day after being sent by registered or certified mail, postage prepaid, facsimile telecopier, addressed as follows:
To WebSan: Andrew King
WebSan Solutions Inc.
245 Fairview Mall Drive, Suite 200
Toronto, ON M2J 4T1
416-499-1235 ext. 214
19. INDEPENDENT CONTRACTORS
a) WebSan and Company are independent contractors and neither shall act as the other's agent, or be deemed an agent or employee of the other nor shall this Agreement be interpreted as creating a partnership or joint venture or otherwise.
20. FORCE MAJEURE
a) Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said party's obligations when caused by Acts of God, strike, acts of war, pandemic, inability of supplies or material or labor or any other cause beyond the reasonable control of the said party.
21. SEVERABILITY
a) In the event any portion of this Agreement is deemed to be invalid or unenforceable, such portion shall be deemed severed and the parties agree that the remaining portions of this Agreement shall remain in full force and effect.
22. ASSIGNMENT
a) Neither party may assign or otherwise transfer this Agreement without the written consent of the other party. This Agreement shall endure to the benefit of and bind the parties hereto and their respective legal representatives, successors, and assigns.
23. GOVERNING LAW
a) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario in the country of Canada.
24. ENTIRE AGREEMENT
a) This Agreement, including the recitals and Schedules, sets forth the entire agreement between the parties with respect to the subject matter hereof and, subject to WebSan's rights of revision as set out in subsection 4 herein; the Agreement shall be amended only by a writing signed by the parties.
25. COUNTERPARTS
a) This Agreement may be executed in counterparts in the same form and such parts so executed shall together form one original document and be read and construed as if one copy of the Agreement had been executed.
Schedule A - Hosting Services Agreement
Service Comparison |
Bronze Good Value |
Silver Better Value |
Gold Best Value |
|
High Quality of Service
|
 |
|
|
|
Priority of Call
|
3
|
2
|
1
|
|
Response Time (Business Hours 9-5 EST)
|
16-hour SLA
|
8-hour SLA
|
4-hour SLA
|
| Fee |
$225/hr
|
$240/hr
|
$260/hr
|
For more information on our support plans, click here.
SCHEDULE B: MICROSOFT SOFTWARE LICENSE TERMS
Hosting of Dynamics GP/NAV is subject to the Microsoft Software License terms available for download here: http://www.microsoft.com/en-ca/download/details.aspx?id=40729
Min PC operating system requirements are:
- Windows 7 with SP 1 or higher
- IE 10 or higher preferred, Google Chrome with IETab plugin supported
- All Citrix or RDP capable printers support, certain consumer-grade printers may not work with the WebSan Cloud environment, in such rare circumstances we are unable to support these devices.
Portable device support includes:
- All devices capable of running Microsoft RD Client 8.1.28 (For Android) or 8.1.17 (For iOS)
- Host a Dynamics GP/NAV hosted solution for the users specified in the Company's accompanying SOW.