Global Relay Communications Inc. ("Global Relay") has developed and owns all the rights to its enterprise message archiving (“Global Relay Archive”), compliance monitoring (“Compliance Reviewer”), mobile archive access (“Global Relay Search”) and instant messaging (“Global Relay Message”) services, and specializes in industry-specific online messaging and compliance solutions.

1. Acceptance of Terms of Agreement

These Services Terms & Conditions (the "Services Terms & Conditions”), together with the Fee Agreement (defined in Section 9.1) which incorporates by reference these Services Terms & Conditions, comprise the Master Services Agreement (the "Agreement") and establish the terms and conditions on which Global Relay, either directly or through one of Global Relay's partners ("Partner"), provides services to Customer, and any Customer Affiliates, if applicable (collectively, the “Customer”). The Services Terms & Conditions may be updated from time to time without further notice, so please check back periodically to: http://www.globalrelay.com/policies/terms-and-conditions. By subscribing for, accessing, or using any services provided by Global Relay, Customer agrees, without limitation or qualification, unless otherwise mutually agreed between the parties in writing, to be bound by the following terms and conditions.

2. Services

2.1 Description of Services. A general overview of the services that may be available to Customer is posted at: www.globalrelay.com, subject to change from time to time at Global Relay's reasonable discretion. The services of Global Relay subscribed for by Customer and specifically itemized in the Fee Agreement shall be the "Services" provided by Global Relay pursuant to this Agreement. 

2.2 Representation & Eligibility. Each of Global Relay and Customer represents and warrants that: a) it is properly licensed to do business and is in good legal standing in the jurisdictions in which it does business and will remain so during the term of this Agreement; b) it has the right, power and authority to enter into, and to fully perform its obligations under this Agreement; c) the information it has provided the other party under this Agreement is true, accurate and complete; and d) the entering into and performance of this Agreement does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party, or by which it is bound. Each of Global Relay and Customer further represents and warrants that it shall conduct all of its activities under this Agreement in an honest, legal, ethical, businesslike and professional manner.

2.3 Activation. Upon execution of the Fee Agreement, Global Relay will initiate activation of the Services subscribed for by Customer. Global Relay will be responsible for the setup, configuration and testing of the Services on its Systems for Customer ("Provisioning").

2.4 Trial Services. At its sole discretion, Global Relay may temporarily provide Customer with one or more of its Services on a testing basis with no financial condition attached ("Trial"). Trial Services may be provided for an appropriate period as determined by the parties and set out in the Fee Agreement ("Trial Period"). Customer shall instruct Global Relay by Notice before the expiry of the Trial Period if it wishes to cancel and disable one or more of the Trial Services, otherwise the Trial Services will be deemed to be accepted and automatically converted into ongoing Services subject to billing and payment terms in accordance with the Fee Agreement. Trial Services converted into ongoing Services shall be billed commencing as of the Effective Date set out in the Fee Agreement.

2.5 Service Availability. Global Relay will make commercially reasonable efforts to cause the Services to be available to Customer at all times, excluding Scheduled Down Time (down time resulting from the normal scheduled Maintenance Window, Releases or Emergency Maintenance, which will be scheduled outside Business Hours (as defined in Section 2.6.1), to the extent possible). Global Relay reserves the right to immediately implement Emergency Maintenance to repair or prevent a Service impacting situation. 

2.6 Support.

2.6.1 Hours of Operation. Normal business hours are 9:00 to 5:00 pm, Monday to Friday, five days per week (North America is based on each North American time zone; Europe is based on GMT; Asia is based on SGT (“Business Hours”)). 

2.6.2 Technical Support.  Technical support is provided to Customer by Global Relay support technicians via email, phone and Go-to-Assist (“Support”). Support is provided at no charge to Customer’s Administrative User(s) on behalf of all Customer’s end users, to assist in troubleshooting and resolving Provisioning and operational issues. Support is provided during Business Hours. Additionally, Support for network-related and urgent technical issues is provided 24/7. Global Relay’s systems are monitored 24/7. Customer may open a Support Ticket via: 

  1. an email notification from Customer to support@globalrelay.net, or 
  2. a phone call from Customer to Support at 604.484.6630 or 866.484.6630.

2.6.3 Compliance & eDiscovery Support. Global Relay's Legal and Compliance, Audit & eDiscovery teams will provide reasonable amounts of guidance via email and telephone at no charge to Customer in connection with compliance and supervision requirements, or setup for eDiscovery, audit or data requests or extractions.  As an additional service, Customer may optionally engage the Professional Services of Global Relay’s Compliance, Audit & eDiscovery teams for conducting independent third party audit and eDiscovery projects, in accordance with the Fees as set out in the Fee Agreement.

2.6.4 Additional Support Services. Global Relay will provide direct email and telephone support to all other Users either on demand at an hourly rate, or as a company-wide support package, as may be agreed to by Customer. Information regarding the support that may be available to Customer will be provided upon request, and is set out in the Fee Agreement.

2.7 Control and Operation. Global Relay will have control over the Provisioning, maintenance and support of the Services and will determine the manner, methods, techniques and procedures that Global Relay uses in providing the Services. Customer acknowledges that Global Relay cannot guarantee the successful operation of a Service where the Service may be affected by other systems of Customer or Customer’s suppliers that are not maintained or controlled by Global Relay.

2.8 Preservation of Rights in Services Other than the limited rights of the subscribing Customer to access and use the Services under this Agreement, no Intellectual Property Rights of a party will be transferred to the other. Customer and Global Relay each acknowledges and agrees that Global Relay, and its licensors where applicable, shall have and retain sole rights, title, and interest in and to the Services and all its related Intellectual Property Rights, including without limitation all goodwill and other proprietary rights.

3. Customer Configuration & Service Obligations

3.1 Configuration. Upon completion of the Provisioning by Global Relay, Global Relay will provide Customer with sufficient instructions and assistance with respect to the setup, configuration, installation (if applicable) and testing of a Service or Account on Customer's Systems ("Configuration") to permit Customer using reasonable skill and effort to set up and configure all Services, Accounts and Systems to perform substantially in accordance with the Services specifications. Customer is responsible for, and has control over, the Configuration (including the accurate set up of Users and User aliases, and supported versions of Third Party Networks). Customer acknowledges that Global Relay is not liable for any loss resulting from the Configuration regardless of whether Global Relay supplied the software, instructions, or representatives of Global Relay to provide assistance with the Configuration. It is advised for Customer to provide advance notice to Global Relay of the time of Configuration, as Global Relay technicians prefer to oversee and initially verify the secure receipt and archiving of messages in Global Relay Archive. Unless otherwise scheduled between the parties in advance, Global Relay will be available to assist with Configuration during Business Hours.

3.2 Access. Customer, to the extent of its control, shall be responsible and liable for any and all access to and use of the Services by Customer’s Users. Accordingly, Customer must determine, through each Administrative User, the appropriate access rights in connection with the Services, the Accounts and its Users.

3.3 User Accounts and Passwords. Customer understands and acknowledges that Global Relay is not responsible for maintaining Accounts and Passwords of Users. The Administrative User(s) of Customer have full privileges to the online Control Center site to directly manage Customer's Users. Accordingly, it is the policy of Global Relay to not provide Accounts and Passwords of Users to a Person, unless Customer has previously authorized Global Relay by a Customer Instruction detailing and directing the terms under which Global Relay is able to provide Accounts and Passwords to Users. Customer agrees that Global Relay may, pursuant to a Customer Instruction, rely on a Person requesting the Account or Password from Global Relay without incurring any liability. Customer, to the extent of its control, agrees to be solely responsible for: (a) maintaining the confidentiality and security of Customer access information, such as Accounts and Passwords and other account identifiers which Customer chooses or is assigned; and (b) all activities that occur under such Accounts and Passwords in connection with the Services. Customer and Global Relay agree to take commercially reasonable precautions to ensure that the Passwords in their respective access and control are never disclosed, accidentally or otherwise. Global Relay shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, Customer's failure to comply with this Section 3.3.

4. Customer Instructions

4.1 Administrative User. Subject to Section 4.2, Customer agrees that each Administrative User will have principal responsibility for all Customer Instructions. For security purposes, each Administrative User is required to be appointed and removed (as applicable) via the Direction & Release for Appointment of Administrator form, one of which must be executed and delivered to Global Relay before any part of the Services can be accessed by Customer and which form effectively comprises part of this Agreement. Customer authorizes Global Relay to accept all directions provided pursuant to a Customer Instruction or otherwise from an Administrative User. Customer acknowledges that a Customer Instruction is final until withdrawn, that Global Relay is entitled to rely on any Customer Instruction until and unless withdrawn, and that any withdrawal must be communicated in writing.

4.2 Assigned Administrative Privileges. Each Administrative User has the ability, at the sole discretion of Customer, to assign its administrative privileges under the Administrative Account to other Accounts or Users. Given the ability to assign these privileges, Customer agrees that Global Relay may rely on a Person requesting support or access to the Services or to any Account pursuant to a Customer Instruction. In no event will Global Relay be liable to Customer or any third party for reliance by Global Relay on a Customer Instruction.

4.3 Decline to Act. For security purposes, Global Relay may, at its reasonable discretion, decline to act on a Customer Instruction until it is able, through reasonable and prompt means, to verify a Customer Instruction or the validity of the Administrative User. So long as Global Relay acts in good faith, Global Relay will not incur any liability by reason of acting or failing to act in respect of a Customer Instruction or Administrative User.

5. Archived Data & Global Relay Archive

This Section 5 applies where Customer is using Global Relay Archive Services:

5.1 Ownership and Control of Archived Data. Global Relay acknowledges that any Data of Customer that has been ingested and preserved in Global Relay Archive ("Archived Data") is proprietary to and exclusively owned by Customer. Nothing in this Agreement grants Global Relay any right, title or interest in or to any Archived Data. Customer’s Archived Data is managed and controlled via the actions of Customer and Customer's Users, accordingly, to the extent of its control, Customer is responsible for the Archived Data it stores in Global Relay Archive.

5.2 Access to Archived Data. Customer has immediate online access via any secure web browser, via Global Relay’s Outlook plug-in or via BlackBerry, Android, iPhone or iPad devices, to its Archived Data for the Contract Term (including access by end Users, if enabled).  For compliance and eDiscovery purposes, online compliance, audit and review tools are available for use by Customer’s authorized Users, or may be used by Customer to facilitate authorized online access to Archived Data for an external auditor or legal review.

5.3 Archive Data Capture. Global Relay Archive is engineered to capture and archive incoming, internal and outgoing electronic communications of Customer. Customer expressly agrees that it is the responsibility of Customer to ensure that:  a) Global Relay is fully notified of all email domains and other types of electronic communications required by Customer to be archived;  b) Global Relay is provided an accurate list of Customer’s Users and User aliases, as applicable, as well as updates to the same;  c) all electronic communications of Customer required to be archived are properly formatted and forwarded to Global Relay Archive;  d) any historical Data of Customer that is to be imported to Global Relay Archive (“Legacy Data Import”) is provided to Global Relay in an industry standard format which has been tested and verified by Global Relay as supportable by Global Relay Archive;  and  e)  Customer verifies with Global Relay that the message types, versions, formats and Third Party Networks that it requires to be archived, are in fact supported by Global Relay Archive (see www.globalrelay.com or contact Global Relay to inquire about a message type or version not listed). Global Relay shall not be liable to Customer for any message types, versions, formats or Third Party Networks that are not supported, or not technically able to be captured or ingested by Global Relay Archive for reasons beyond the control of Global Relay.

5.4 Monitoring Message Flow. Customer is responsible to monitor its delivery of each message type to Global Relay Archive. Global Relay will generate a daily email to Customer that reports statistics on Global Relay’s receipt and processing of each message type from Customer, and on each User of Customer. It is the responsibility of Customer to review and reconcile these reports, and Customer will notify Global Relay of any mail flow issues, anomalies or delivery failures. Customer shall also notify Global Relay of any upgrades, patches, or maintenance to Customer’s servers or message feeds which will result in an outage, disablement of journaling or other disruption of message flow by Customer, and Customer shall ensure that no messages are transmitted through its email/IM server(s) or otherwise until Customer’s upgrade, patch, or maintenance is complete, and that journaling or message flow is enabled again by Customer or Customer’s third party vendors.

6. Instant Messaging, Social Networks and Email Services

This Section 6 applies where Customer is using Global Relay's Archive Services for capture of public or enterprise instant messaging (IM) or social networks, or is using Global Relay hosted email, email continuity, or email filtering service(s) (“Email Services”):

6.1 Availability of IM, Social Networks, and Third Party Email.  Notwithstanding Section 2.5, Customer understands that Global Relay cannot guarantee the availability or performance of any third party email hosting, public, consumer or private instant message network, social network or service, including but not limited to AIM, Yahoo!, MSN, Skype, GoogleTalk, Actiance, Bloomberg, Thomson Reuters, ICE Chat (YellowJacket), Pivot (CME), OCS/Lync, CiscoWebex, BlackBerry, LivePerson, OpenFire, Chatter, Yammer, ePulse, Omnipod, LinkedIn, Twitter and Facebook (collectively, "Third Party Networks"). Such Third Party Networks may change their formats, APIs, delivery methods and posting times without notice to Global Relay, or may have inaccuracies in format schemas, corruptions or other changes. Accordingly, Global Relay and its Partners expressly disclaim any and all liability relating to, connected with, or arising from Third Party Networks including any outages, schema changes, version changes, delivery delays, failures, corruptions, discontinued services or termination of service. Additionally, Customer is responsible to ensure its end Users only use versions of the applicable Third Party Network clients that are expressly supported by Global Relay Archive. Customer may contact Global Relay Support to confirm an updated list of supported Third Party Networks. To assist with the administration and maintenance of accurate data flow and user statistics, where an end User of a particular Third Party Network or an Email Service has not accessed that particular Third Party Network or Email Service for more than 90 consecutive days, the User’s license related to such Third Party Network or Email Service will be deemed abandoned. To regain access, Customer may simply contact Global Relay Support.

6.2 Third Party Networks Terms of Use.  Customer must comply with any terms of service or terms of use provided by, or any usage fees required by, any Third Party Network or federation of Third Party Networks, including any limitation with respect to restricted or illegal activities. Global Relay shall not be liable for Customer's violation of any such Third Party Network's requirements and Customer shall hold Global Relay harmless for any liability for such violations.

7. Security

7.1 Security Procedures. Global Relay will maintain electronic and physical security procedures, and shall cause interfaces between any servers used in providing the Services and the internet to include firewalls or other online security infrastructure, in order to reasonably guard against accidental, unauthorized or unlawful access, destruction, use, alteration, modification, disclosure or loss of Archived Data. Such procedures shall be commensurate with commercially reasonable industry standards.

7.2 Security Breaches. Notwithstanding the provisions of this Agreement, Global Relay reserves the right, in the event of a reasonable detection or perceived detection of suspicious activity or other security issues whatsoever, including a disaster that impacts internet security infrastructure or transmissions in a manner which may cause undue risk to Global Relay, Customer, or Archived Data, to temporarily suspend Customer’s access to any of the Services as is necessary. During any such suspension, Global Relay will use commercially reasonable efforts to resolve and mitigate the risk and resume Customer's use of the Services and access to the Archived Data as soon as possible, and will use commercially reasonable efforts to ensure the integrity of the Archived Data. Any such suspensions will only be in effect during and no longer than a period equal to the time necessary to eliminate risk to Global Relay Services and the Archived Data. 

8. Confidentiality & Non-Disclosure

8.1 Confidential Information. The parties to this Agreement will not use any Confidential Information (which term shall include Archived Data, as well as the terms of this Agreement) obtained from the other party for its own benefit or for any purpose other than as intended by the parties under this Agreement. The parties further agree that neither will use the Services or any Confidential Information of the other to compete with the other party in its business, nor provide Confidential Information to any third party.

8.2 Disclosure. Neither party will use any of the other party’s Confidential Information for any purpose except to fulfill its respective obligations under this Agreement, and shall not disclose Confidential Information to any Person except to its representatives who need to know the information for purposes of this Agreement or the Services, or except where disclosure is required or authorized by law or requested or required by administrative process or proceeding or governmental/regulatory authority (including any self-regulatory organization having jurisdiction or claiming to have jurisdiction over the receiving party)(”Legal Process“), or with prior written consent of the other party. In the event that a party is legally compelled under Legal Process, through whatever means, to provide access to the Archived Data or other Confidential Information, then the disclosing party undertakes, to the extent legally permissible, to provide the other party with notice of such an event as promptly as is reasonably practicable, so as to afford the other party the opportunity to limit, monitor, control or prevent the disclosure, unless the disclosing party is requested during an inspection, investigation or examination, or is otherwise prohibited by law, from providing notice to the other party. Customer is responsible for all costs associated with any legally compelled disclosure of its Archived Data. Nothing in this Agreement shall cause a party to fail to honor or comply with any Legal Process on a timely basis.

8.3 Privacy of Information. For information on how User information is collected, used and disclosed by Global Relay, please refer to Global Relay's Privacy Policy. Notwithstanding this policy, by accepting the Services Terms & Conditions, Customer is deemed to have consented to the use and disclosure of information of Customer by Global Relay for purposes relating to the Services, including marketing and promotion initiatives of Global Relay.

8.4 Marketing. Global Relay has the right to refer to Customer, directly and indirectly, in marketing materials, case studies and on Global Relay's website to indicate that Customer uses the Services and for general information and marketing purposes regarding Global Relay's customer base. Global Relay shall not issue any press release announcing the engagement or use by Customer of the Services without the express prior written consent of Customer. Any press release or case study shall be subject to the review and prior written approval of both parties and this approval shall not be unreasonably delayed or withheld.

9. Fees and Payments

9.1 Fee Agreement. Customer will execute a Fee Agreement which sets forth the specific Services subscribed for by Customer during the Contract Term, as well as the Fees, Prices, initial User count, payment method, Billing Cycle and Effective Date for the commencement of this Agreement. Customer agrees to pay all Fees due under this Agreement. In the event Customer continues to use the Services beyond the expiry of any Trial Period, the Contract Term or after a termination date (as applicable), then, without Notice to the contrary, the terms of the most recent Fee Agreement together with any subsequent Change Orders will be deemed to have been accepted or continued (as applicable). 

9.2 Change Orders. Where Customer makes adjustments to its Services after the Effective Date, including (as applicable) reported or actual changes to the number of Users or Accounts, adding or deleting Services, adding or deleting archived message types, exceeding storage usage allotments, customization of support packages, the import and export of Legacy Data or Archived Data, or other demands of Customer that alter the numbers or the Services set forth in the Fee Agreement, corresponding adjustments will be made to Customer’s Fees (each a “Change Order”). Any Change Order will be based on the standard Global Relay Prices unless as otherwise set forth in the Fee Agreement, and be reflected in the invoice for a subsequent Billing Cycle or billed at the time of order (as applicable). During the Contract Term, Customer will maintain a minimum of 75% of the initial User count stated in Customer’s Fee Agreement, unless otherwise mutually agreed by the parties in writing. Accordingly, for any Change Order for a decrease in Fees due to a drop in User count below this minimum, the minimum will apply.

9.3 Dispute, Discrepancy and Refund. The Fees billed on any invoice will be deemed to be correct if not disputed by Notice within 30 days of the invoice date. Any Notice by Customer must provide Global Relay with sufficient detail of the Fee discrepancy, in addition to other information that Global Relay may reasonably request, in order to review and resolve the dispute. The parties will work together in good faith to promptly and efficiently resolve the discrepancy to the satisfaction of both parties. During any resolution period, Customer will continue to pay all undisputed amounts to Global Relay. Where a discrepancy is determined, refunds will apply as follows: (i) if Customer has paid the invoice in full, a credit note for the discrepancy will be applied against future Fees; or (ii) if Customer has not paid the discrepancy, a credit note will be applied to the unpaid portion of Customer’s invoice. Alternatively, if the discrepancy is greater than $200.00, Customer may request a refund.

9.4 Payment. Unless alternative payment terms have been specified in the Fee Agreement or are otherwise mutually agreed to by the parties in writing, Customer will pay all undisputed Fees (i) on the invoice due date, (ii) in advance, based on a monthly Billing Cycle, and (iii) by pre-authorized credit card. Customer, if paying by credit card, hereby gives its authorization for all payments required to keep its accounts current, such payments to normally be debited in the amount of the Fees established in the Fee Agreement or as is calculated after any subsequent Change Order. All credit card payments will normally be processed on the invoice due date. 

9.5 Non-Payment. Any undisputed Fees due and owing by Customer (or disputed in bad faith) under this Agreement that are not received by Global Relay within 30 days of receipt of the invoice may be subject to a service charge of one and one half percent per month, or the maximum charge permitted by law, whichever is less, as calculated from the invoice due date until the date payment is received by Global Relay. Such non-payment is also deemed to be a material default by Customer, and Global Relay may suspend Customer's Services pursuant to the notice requirements and procedures of Section 14.2. Where Customer has been suspended for non-payment, the Services will not be reactivated until Global Relay receives payment in full of the outstanding balance, in addition to a $200.00 reactivation fee. Global Relay has no obligation to return Archived Data to Customer until Global Relay receives payment in full of the outstanding balance and any payment disputes are resolved. Customer shall not be entitled by reason of set-off, counterclaim, abatement or other similar deduction to withhold any amount due to Global Relay.

9.6 Taxes of Customer. Global Relay is not responsible for any additional fees, charges, or taxes imposed by Customer's local authorities, State or Province, other than any applicable GST/HST in Canada, in which case Global Relay, or a Partner, will bill to and collect from Customer and remit to the government authorities. Any other taxes or fees which may be due must be paid to the proper authorities directly by Customer.

10. Limited Warranty

GLOBAL RELAY IS COMMITTED TO MAKING COMMERCIALLY REASONABLE EFFORTS TO PROVIDE CUSTOMER WITH ACCESS TO THE SERVICES AND TO ENSURE A HIGH LEVEL OF SERVICE AVAILABILITY, SECURITY AND REDUNDANCY, SUBJECT TO CUSTOMER’S AND CUSTOMER’S THIRD PARTY VENDORS’ COOPERATION AND COMPLIANCE WITH THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, TEMPORARY UNAVAILABILITY OF THE SERVICES MAY OCCUR AS A RESULT OF SCHEDULED MAINTENANCE, SOFTWARE RELEASES, HARDWARE RELEASES, SECURITY ISSUES OR CONNECTIVITY ISSUES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT ITS SOLE RISK. THE SERVICES ARE PROVIDED BY GLOBAL RELAY, AND ACCEPTED BY CUSTOMER, ON AN "AS IS" AND "AS AVAILABLE" BASIS. GLOBAL RELAY AND ITS SUPPLIERS AND PARTNERS, TO THE FULLEST EXTENT PERMITTED BY LAW, OTHERWISE DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF PROPRIETARY OR THIRD PARTY RIGHTS, OR ABOUT THE ACCURACY, SECURITY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ITS SERVICES, SOFTWARE, OR CONTENT. FURTHER, NOTWITHSTANDING THE FOREGOING, GLOBAL RELAY DOES NOT WARRANT THAT THE SERVICES ARE ERROR FREE. HOWEVER, GLOBAL RELAY AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO ADDRESS AND/OR CORRECT ANY ERRORS, CONCERNS AND MALFUNCTIONS REPORTED BY CUSTOMER DURING THE TERM OF THIS AGREEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER'S DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM GLOBAL RELAY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

11. Release

Customer releases Global Relay from and agrees to defend, indemnify, and hold harmless Global Relay, its Affiliates, officers, directors, employees, agents and Partners from and against any claims, actions, suits, demands, proceedings (collectively “Claims”) and damages, liabilities, obligations, costs or expenses, including without limitation, reasonable legal fees (collectively “Damages”), in any way directly or indirectly connected with, arising out of or resulting from Customer's: (a) negligent or wrongful use of the Services, (b) breach of this Agreement, or (c) combination of the Services with other products, processes, or material not provided or approved in writing by Global Relay, whether or not due to any act, error, omission or negligence by Global Relay or any of its affiliates, officers, directors, employees, agents or others whom it is in law responsible.

12. Limitation of Liability

12.1 No Liability for Loss. Notwithstanding any other provision of this Agreement, or any other related agreements, in no event shall either party be liable to the other party, its clients, or any other party (any of which, a "Person") under or in relation to this Agreement for any Claims or Damages for any special, direct, indirect, incidental, consequential, or punitive damages (including loss of use, loss of production, loss of profits or revenues, loss of markets, economic loss, loss of good will, exemplary loss, anticipated or otherwise), that may be suffered or incurred by any Person, resulting from any matter under or relating to this Agreement or the use of, inability to use or access, or performance of any of the Services, and notwithstanding that such party may have been advised of the possibility of any such Claims or Damages and regardless of whether any of the foregoing is determined to constitute a fundamental breach or failure of essential purpose.

12.2 Limit. Notwithstanding any other provision of this Agreement, the total monetary liability of each party to the other in respect of all Claims and Damages for any matter relating to the Services or this Agreement, whether in contract or tort or under any other theory of liability, including without limitation for any breach of or default under this Agreement or any misrepresentation or negligence, in the aggregate, shall not exceed the amount of Fees Customer has paid to Global Relay under this Agreement in the three months preceding the Claim. This limit is cumulative and the existence of more than one Claim will not enlarge the limit. The parties acknowledge that these limitations of liability and the allocation of risk, including waiver of consequential damages, are an essential element of the bargain between the parties and part of the consideration for the agreed upon Prices and Fees, and in their absence the Prices and Fees and this Agreement would be substantially different.

13. Amendments

13.1 Agreement. The Fee Agreement will only be modified upon prior written agreement of both parties.  Global Relay reserves the right to amend any provision of these Services Terms & Conditions from time to time, so long as amendments are posted at http://www.globalrelay.com/policies/terms-and-conditions

13.2 Fee Changes. Prices for the Services will not increase during the Initial Term. After the Initial Term, on an annual basis, Global Relay may increase the Fees by amounts equal to or less than the percent increases in the CPI-U, using the percent change in the level of the CPI-U between the month prior to the Effective Date and that same prior month in each subsequent year. In addition, Prices are subject to change and any price changes will take effect on renewal of the Contract Term set out in the Fee Agreement, upon written Notice to Customer of any changes in Prices and resulting Fees by the end of the Contract Term. Unless otherwise agreed by the parties in writing, continued use of the Services by Customer for 15 days past the end of the Contract Term constitutes acceptance by Customer of any modified Prices for the Services for the next Contract Term.

13.3 Service Changes. Customer acknowledges that Global Relay may provide automatic Releases to the Services from time to time, provided that any such Releases do not materially adversely detract from the performance levels of the Services. To the extent possible, Releases will be provided upon reasonable Notice by Global Relay. Global Relay also reserves the right to discontinue any Service, temporarily or permanently, upon Notice of at least 30 days. Customer agrees that Global Relay shall not be liable to Customer or any third party for any modification or discontinuance of any of the Services; provided however, that in the event Global Relay discontinues any Services, Global Relay will endeavor to provide Customer as much notice as is reasonably practicable.

14. Term, Suspension and Termination

14.1 Term. This Agreement will commence on the Effective Date. This Agreement will continue in effect, together with any subsequent renewals, revisions, or Change Orders until terminated pursuant to this Section 14, unless otherwise agreed by the parties in writing. The Fee Agreement sets out the initial Contract Term (the “Initial Term”). At the expiry of the Initial Term, the Fee Agreement (including any applicable Change Orders) shall, subject to Section 13.2, be automatically renewed annually for additional one year terms (each a “Renewal Term”), unless terminated by written Notice by either party at least 60 days prior to the expiry of the Initial Term or Renewal Term (as the case may be), or the parties otherwise negotiate terms of a new Fee Agreement.

14.2 Suspension. Without limiting other remedies, Global Relay reserves the right to suspend any and all of Customer’s Services if Customer is in material breach or default in performance of its obligations under this Agreement or has otherwise violated this Agreement, if the reason for that breach, default or violation is not remedied to Global Relay’s reasonable satisfaction within 30 days following Customer's receipt of written Notice of (i) the breach, default or violation, or (ii) non-payment pursuant to Section 9.5. The onus is on Customer to resolve or cure the specific concerns to Global Relay's (and to Partner's, if applicable) reasonable satisfaction prior to the Services being reinstated. Global Relay will not be liable to Customer for any suspension in accordance with this Section 14.2.  Fees will continue to apply and accrue during any suspension of the Services by Global Relay.

14.3 Termination. Subject to the provisions of this Section 14 and proper Notice pursuant to Section 15.4 to Global Relay Legal or Customer's Contact, as applicable, upon termination of the Services by either party, all rights under this Agreement and the provision of Services will terminate in accordance with this Agreement. If Customer is using Global Relay Archive Services, this includes termination of all access to Global Relay Archive. Continued use by Customer of the Services beyond the date of termination will result in a continuation of Fees in accordance with this Agreement. Neither party will be liable to the other for any termination of the Services in accordance with this Agreement and the following terms:

14.3.1 Termination by Customer. Customer may terminate this Agreement (i) at the expiration of the Contract Term or current Renewal Term (as the case may be) stated in the Fee Agreement; or (ii) upon Global Relay's material breach or default in performing its material obligations under this Agreement, if the reason for that breach or default is not remedied within 60 days following Global Relay's receipt of written Notice of such breach or default. In the case where there is not a Fee Agreement with a defined Contract Term, Customer may terminate this Agreement upon 120 days’ Notice. For termination under subsection 14.3.1(ii), Customer will not be charged for any and all Fees owed by Customer for the remainder of the Contract Term (or remainder of the Billing Cycle if the Contract Term is not defined) and a refund will be given for any Fees prepaid by Customer. In no event shall any termination relieve Customer of the obligation to pay any Fees payable to Global Relay for the period prior to the effective date of termination.

14.3.2 Termination by Global Relay. Global Relay may terminate this Agreement (i) at the expiration of the Contract Term or current Renewal Term (as the case may be) stated in the Fee Agreement; or (ii) where Customer has been suspended pursuant to Section 14.2, or upon Customer’s material breach or default in performing its material obligations under this Agreement, if the reason for that suspension, breach or default is not remedied within 60 days following such suspension or Customer's receipt of written Notice of such breach or default (as applicable). For termination under subsection 14.3.2(ii), Customer will be charged for any and all Fees owed by Customer for the remainder of the Contract Term (or remainder of the Billing Cycle if the Contract Term is not defined) and no refund will be given for any Fees prepaid by Customer. 

14.3.3 Termination on Bankruptcy. This Agreement shall terminate upon Notice with proof of the dissolution or bankruptcy of either party where (a) a party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction or makes an assignment for the benefit of creditors; or (b) if a petition in bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within 60 days. Upon such termination, Customer will be charged for any and all Fees owed by Customer up to the date of termination, provided that, if Customer directs Global Relay to continue to preserve its Archived Data, the Fees for Services set forth in the Fee Agreement will continue to apply.

14.4 Return or Deletion of Archived Data. At any time, including up to 120 days following the effective termination of Global Relay Archive Services, Customer may request by written direction the return of a copy of its Archived Data stored by Customer in Global Relay Archive for a fee as set forth in the Fee Agreement, or otherwise at Global Relay’s standard rates, based on the digital media and format requested and amount of Archived Data to be returned. Alternatively, Customer may engage Global Relay to preserve a Static Archive of existing Archived Data with online access for Administrator(s), or may instruct Global Relay to delete the Archived Data upon written Direction to Global Relay. Upon request by Customer, Global Relay will provide written confirmation that the Archived Data has been properly disposed of. In the event that Global Relay does not receive written direction from Customer requesting the return of a copy of its Archived Data prior to the expiry of the 120 days following the effective termination (the “Abandonment Date”), then Customer is hereby put on notice that Global Relay may, without liability to Customer, delete all Customer's Archived Data after the Abandonment Date. Global Relay will provide at least 45 days’ Notice before any such deletion. Notwithstanding any of the above, Global Relay will not be liable to Customer with respect to Customer's Archived Data that remains in Global Relay Archive after the Abandonment Date.

14.5 Survival. Sections 5.1 ("Ownership and Control of Archived Data"), 8 ("Confidentiality and Non-Disclosure"), 10 ("Limited Warranty"), 11 ("Release"), 12 ("Limitation of Liability"), this Section 14 (“Term, Suspension and Termination”), and any other provisions of this Agreement that by their nature should survive termination of this Agreement.

15. Miscellaneous

15.1 Relationship of the Parties. Customer acknowledges that Global Relay, as a service provider, is an independent contractor, and the parties agree that no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither party shall have any authority to act for, bind, make any representations or warranties, or assume any obligation or responsibility, express or implied, on behalf of the other party, except as specifically authorized under this Agreement or by written direction of the other party. Each party is solely responsible for all expenses associated with its performance under this Agreement. Nothing in this Agreement shall restrict in any way the freedom of either party to conduct as it sees fit any other business or activity whatsoever.

15.2 Assignment. This Agreement may not be assigned by either party without the other party's prior written consent, which will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate or successor entity upon 30 days’ Notice to the other party.

15.3 Enurement. This Agreement will enure to the benefit of and is binding upon the parties to this Agreement and their respective heirs, executors, administrators, successors and permitted assigns.

15.4 Notices and Communications. All Notices and Customer Instructions required or provided by way of this Agreement shall be in writing and shall be deemed to have been given when delivered (with proof of successful delivery) via: (i) email (with confirmation of receipt), (ii) mail (registered or certified, postage prepaid with receipt requested), (iii) courier, or (iv) personally. With respect to Notice via email, each party may rely on Customer Instructions and Notices as if the sender, on behalf of the party, had given them signed and in writing. Any Notice delivered to Global Relay or Customer shall be sent to the following contacts, as appropriate, depending on the subject matter of the Notice:

To Global Relay Communications Inc.
220 Cambie St., 2nd Floor
Vancouver BC, V6B 2M9
Attention: Legal

To Customer:
The address set forth on the Fee Agreement.

With respect to Notice via email, Global Relay may rely on Customer Instructions and Notices as if the sender, on behalf of Customer, had given them signed and in writing. Any Notice delivered via email shall be sent to the following contacts, as appropriate, depending on the subject matter of the Notice:

Party

Issue

Contact

Email Address

Global Relay

IT Support

Support Desk

support@globalrelay.net

Billing/Fees

Accounting

accounting@globalrelay.net

Legal/Contractual

Legal

legal@globalrelay.net

Customer

IT Support

Administrative User

admin@customerdomain

Fees

Administrative User

admin@customerdomain

Legal,Contractual

Administrative User

admin@customerdomain

15.5 Force Majeure. Neither party will be in default of this Agreement nor be liable in damages nor have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by a Force Majeure; provided that, as a condition to the claim of non-liability, the party whose performance is affected will provide the other party prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

15.6 Entire Agreement.

15.6.1

Entire Agreement. This Agreement, including the Services Terms & Conditions, the Fee Agreement, the Appointment of Administrator, and including any and all schedules or policies referred to in this Agreement, constitute the entire understanding and agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements, correspondence, understandings and discussions, whether written or oral, relative to the subject matter contained herein. In the event of any inconsistency between these Services Terms & Conditions and the Fee Agreement, the most recent Fee Agreement will prevail. In the event of any inconsistency between the Policies listed in Section 15.6.3 and either these Services Terms & Conditions or the Fee Agreement, the Fee Agreement and the Services Terms & Conditions will prevail. 

15.6.2

Definitions. In the Agreement, all defined terms, unless defined herein, have the meanings set forth in the Standard Definitions (incorporated by this reference) attached as Schedule A to this Agreement. In the event of any inconsistency between the Standard Definitions and the terms specifically defined in this Agreement (without reference to Schedule A), the parties intend for the definitions herein to prevail over the Standard Definitions in Schedule A.

15.6.3

Policies. Customer acknowledges, accepts and agrees that the Services provided to Customer pursuant to this Agreement are also subject to the following online policies, incorporated by these references below: 

  1. Acceptable Use Policy:
    http://www.globalrelay.com/policies/acceptable-use
  2. Privacy Policy:
    http://www.globalrelay.com/policies/privacy
  3. Website Terms of Use & Copyright Policy:
    http://www.globalrelay.com/policies/terms-of-use

15.7 Severability and Non-waiver. If any part of this Agreement is found to be invalid, all other parts of this Agreement remain enforceable. Either party's failure to act with respect to a breach or default by the other party does not waive the non-defaulting party's right to act with respect to subsequent or similar breaches or defaults.

15.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws applicable in the Province of British Columbia and the laws of Canada applicable therein, excluding that body of law governing conflict of laws. Any action or proceeding brought to enforce the terms of this Agreement will be brought in a court of competent authority in Vancouver, British Columbia. The parties submit to the exclusive jurisdiction of this court. EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT.

15.9 Dispute Resolution. In the event of a dispute between Global Relay and Customer, to promote resolution of the dispute will be escalated internally in good faith; first through designated Global Relay personnel and this person's equivalent at Customer; then through another designated Global Relay personnel and this person's equivalent at Customer. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. Any dispute arising out of or relating to this Agreement, including the breach, termination or validity hereof, which has not been resolved by the foregoing negotiation procedure within 90 days of the initiation of such procedure, may then otherwise be dealt with according to the provisions of this Agreement. This dispute resolution procedure will not affect the obligation of either party to perform, subject to Global Relay’s right to suspend Services in accordance with Section 14.2 or the right of either party to enforce this Agreement.

15.10 Currency. All amounts, Prices and Fees are in United States Dollars (USD), unless otherwise indicated.

15.11 Non-Solicitation. During the Term of this Agreement and for a period of six months after the end of last Term, Customer will not, directly or indirectly, (i) employ or hire any person who is at the time in question, or who was at any time during the immediately preceding six months, employed by Global Relay or (ii) cause, invite, solicit, entice or induce any person who is at the time in question, or who was at any time during the immediately preceding six months, employed by Global Relay, to terminate such person’s employment with Global Relay, unless expressly consented to in writing by Global Relay in each case.

15.12 Electronic Signatures and Contracts. Customer's use of the Services includes the ability to enable Customer's Administrative User(s) to: (i) electronically enter into agreements via Global Relay's website, digital signature or email, (ii) make Change Orders to the Services via the online Control Center, and (iii) make payments electronically. Customer acknowledges such electronic submissions by Customer’s Administrative User(s) constitutes Customer's agreement and intent to be bound by the same and to pay for such Services, Change Orders, agreements and purchases.

15.13 Accepted Terms. The Fee Agreement, incorporating by reference these Service Terms & Conditions, will be executed online by Customer via Echosign (a digital document service) unless otherwise agreed to be executed by original, or email transmission of an image file format document or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same document.

Additional Information

Any questions relating to the Services Terms & Conditions or other information may be directed to legal@globalrelay.net.


Schedule A

Standard Definitions

The Standard Definitions are located at: http://www.globalrelay.com/policies/standard-definitions

- End of Services Terms & Conditions -