TERMS & POLICIES
Master Terms of Service
Master Terms of Service
Global Relay has developed and owns all the rights to its enterprise information archiving platform (“Global Relay Archive”), and specializes in industry-specific online messaging and data compliance and information governance solutions.
1.1. Agreement Documents. These Master Terms of Service (or “MTOS”) set out the framework terms and conditions on which Global Relay directly provides the Services to Customer and, if applicable, Customer Affiliates (collectively “Customer”). This MTOS also governs the subscription and use of Global Relay’s Services by Customer under any Order Form. The “Agreement” between Customer and Global Relay is comprised of: (a) the MTOS, including any amendments, addendums or specific terms or licenses applicable to a service or service component, and the most current version of all Schedules or policies referred to in the Agreement; and (b) any then-current applicable Order Form(s).
1.2. Amendments. Global Relay may update this MTOS from time to time without further notice. The most current version will take effect upon posting at https://www.globalrelay.com/policies/master-terms-of-service/. Except as authorized by the Agreement, no provision of any Order Form(s) may be amended without the parties’ mutual written agreement and signed by Customer. By subscribing for, accessing, or using any services provided by Global Relay, Customer agrees, without limitation or qualification, to be bound by the Agreement.
1.3. Representation and Authority. Each of Global Relay and Customer represents and warrants that: (a) it is lawfully 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 the Agreement; (b) it has all rights and authority required to enter into, and to fully perform its obligations under the Agreement; (c) the entering into and performance of the Agreement will not violate, conflict with, or result in a material default or breach under any other agreement to which it is a party, or by which it is bound; (d) the information it has provided the other party under the Agreement is true, accurate, and complete in all material respects; and (e) it will conduct all of its activities under the Agreement in an honest, legal, ethical, businesslike, and professional manner.
1.4. Affiliates. Upon written mutual agreement between the parties, Global Relay will provide the Services or any part of the Services to any Customer Affiliate as if such Services were provided directly to Customer pursuant to the following: by Customer Affiliate (i) executing an Order Form directly with Global Relay under this Agreement; and/or (ii) receiving the benefit of the Services through Customer’s purchase of the Services. Except where a Customer Affiliate has directly entered into a separate MTOS or participation agreement with Global Relay which includes accepting responsibility for items (a) to (c) below, or unless otherwise agreed in writing by the parties, Customer shall: (a) ensure that its Affiliates receiving the Services hereunder comply with all provisions of this MTOS including all applicable Schedules, policies, and Order Forms under the Agreement; (b) continue to act as a key point of contact with Global Relay with respect to facilitating the Services provided to its Affiliates; and (c) remain liable to Global Relay and, as between the parties, to all other Persons, for: (i) the failure of Customer’s Affiliates to comply with the Agreement to the same extent that Customer would have been had Customer failed to comply; (ii) the acts and omissions of its Affiliates to the same extent that Customer would have been had Customer failed to comply; and (iii) all payments of the Fees owed by Customer’s Affiliates under the Agreement. For clarity, extending the Services to Customer Affiliates will not have the effect of increasing the limitation of liability applicable to Customer set out in this Agreement.
2. GLOBAL RELAY SERVICES
2.1. Services Subscription. The services of Global Relay subscribed for or procured by Customer that are specifically itemized in the applicable Order Form shall be the “Services” provided by Global Relay pursuant to the Agreement.
2.2. Order Form. The Order Form that initiates the Services will at a minimum set out, in addition to the specific Services subscribed for by Customer, the Term, Fees, Prices, initial Account numbers, payment terms, Billing Cycle, and Effective Date for the commencement of the Services.
2.3. Implementation. On or after the Effective Date of the applicable Order Form, Global Relay will initiate implementation of the Services subscribed for by Customer.
(a) Provisioning. Global Relay will setup, activate, and test the Services on its Systems for Customer (“Provisioning”).
(b) Configuration. Upon completion of Provisioning by Global Relay, Global Relay will provide Customer or Customer’s IT contact with applicable Specifications to enable Customer to setup, configure, and test the Services, Accounts, and Users in Customer’s Environment (“Configuration”). Customer has responsibility for, and control over, (i) the timely and accurate completion of the Configuration (including configuration of Accounts and User aliases, and supported versions of Third Party Platforms if applicable); and (ii) where Customer is using Global Relay Archive, verifying with Global Relay the secure and proper end-to-end connection and data flow, including the sending, receipt, and archiving of each Data Type in Global Relay Archive. Customer acknowledges that Global Relay is not liable for any loss resulting from Configuration regardless of whether Global Relay supplied the software, instructions, or representatives of Global Relay to provide assistance with Configuration. Unless otherwise scheduled between the parties in advance, Global Relay will be available to assist with Configuration during Business Hours.
2.4. Demos and Betas; Test Environment. Any Services provided in connection with testing as set out in this Section 2.4 are subject to this MTOS from the Effective Date, unless otherwise agreed in writing by the parties:
(a) Demos and Betas. Demos and Betas are optional and may only be used for Customer’s internal evaluation during the Test Period designated by Global Relay (or if not designated, 30 days). Either party may terminate Demos and Betas at any time for any reason. Demos and Betas may be inoperable, incomplete or include features that Global Relay may never release, and their features and performance information are Global Relay’s Confidential Information.
(b) Test Environment. If Global Relay makes available to Customer an Environment to perform testing of certain Services in the form of a proof of concept (POC), or user acceptance testing (UAT) (collectively, “Test Environment”), the scope, cost, and Test Period of such Test Environment shall be set out in an Order Form.
Archived Data in connection with Demos and Betas, or the Test Environment, is subject to deletion at the end of the Test Period unless otherwise set out in an Order Form, or where the Beta is within Customer’s production Environment. Notwithstanding anything else in this MTOS, Global Relay provides no warranty, indemnity, service level metric or support for Test Environments, Demos and Betas and its liability for Test Environments, Demos and Betas will not exceed US$50.
2.5. Service Availability. Global Relay will make commercially reasonable efforts to provide Customer a high level of service availability, provided that Global Relay reserves the right to perform Regular Maintenance, or immediately implement Emergency Maintenance to prevent or remediate a Service impacting situation or security concern. Global Relay will endeavor to apply Emergency Maintenance during the time window set for Regular Maintenance, and to provide Customer with as much advance written notice as possible where the Maintenance will materially affect Customer’s use of the Services.
2.6. New Releases. Customer acknowledges that Global Relay may provide automatic Releases to the Services from time to time, provided that with any such Release: (a) the Services will continue to meet all of Global Relay’s obligations under the Agreement; and (b) there will be no material deprecation, reduction, or degradation of the Services from the performance levels or material functionality of the Services contracted for under the Agreement. Global Relay will endeavor to provide Customer with reasonable advanced notice of any Release that will materially affect Customer’s use of the Services.
2.7. Development Work. In special circumstances, Global Relay may agree to perform certain customized Work requested by Customer related to the Services. The scope and cost of the Work to be performed by Global Relay must be set out in a Statement of Work, with applicable Acceptance Criteria, mutually agreed in writing by the parties.
2.8. Standard Support. Included with the Services, the following types of standard support (“Support”) are reasonably provided at no additional charge by Global Relay during Business Hours for Customer’s Administrative User(s), requesting support on behalf of Customer’s end Users, via email, phone, Help Center, webinar, or remote desktop:
(a) Technical Support to assist with troubleshooting and resolving Provisioning and Configuration issues. Additionally, support for network-related and urgent technical, security, or operational issues, is provided 24/7/365. Customer may open a Support Ticket via:
(i) an email notification from Customer to firstname.lastname@example.org, or
(ii) a phone call from Customer to Support at 604.484.6630.
(b) Training Support to assist with basic setup and use of the Global Relay Archive, setup for data exports or self-directed eDiscovery/audit projects, and other basic training support related to the use of the Services via conference call or webinar.
2.9. Professional Services. Customer may optionally engage Global Relay to perform professional services (“Professional Services”) in accordance with the Fees set out in the applicable Order Form or as otherwise agreed in writing by the parties. Professional Services include:
(a) Audit, Compliance, and eDiscovery Services to assist with independent third party audit and eDiscovery projects, or consultative or customized support with respect to setup and/or management of advanced legal controls, compliance policies, Data Subject requests related to Personal Data, or functions, carried out by Global Relay’s Compliance, Legal, and Data Services teams;
(b) Data Services to assist with consultative or customized support with respect to special requests or issues related to Customer’s Legacy Data Import or Archived Data; or
(c) Technical Services to assist with Standard Support outside of Business Hours, customized Provisioning, Configuration, other consultative or project management services, or other advanced training or support beyond the scope of Support services outlined in Section 2.8 (Standard Support).
(d) Function, Classification, and Policy Customization Services to assist with configuring advanced functions, data classification, lexicon and/or policy customization.
(e) Due Diligence Services to assist with the review and/or response to due diligence questionnaires and/or vendor assessments and the provision of applicable documentation.
2.10. Control and Operation. Subject to the terms of the Agreement, Global Relay will have control over Provisioning, Support, operation, and Maintenance of the Services and will determine the manner, methods, techniques, and procedures that Global Relay uses in providing the Services. Customer acknowledges and agrees that Global Relay cannot guarantee the successful operation of a Service where the Service may be affected by Customer’s Systems, Customer’s Environment, or Customer’s suppliers that are not maintained, operated, or controlled by Global Relay.
2.11. FINRA Compliance Program. This paragraph only applies to FINRA CRP and FINRA CVD customers under the FINRA Compliance Program. The Global Relay FINRA Compliance Program bundled Services offerings are exclusive to FINRA CRP and FINRA CVD customers of Global Relay. Notwithstanding Section 9.7 (Price Adjustments), Global Relay reserves the right to modify its Global Relay FINRA Compliance Program bundled Services offering in the event FINRA makes any changes to the scope or status of Global Relay’s participation in the FINRA Compliance Program.
3. PROPRIETARY RIGHTS
3.1. Ownership and Control of Customer Data. As between Global Relay and Customer, Customer will have sole and exclusive ownership of all right, title, and interest in and to Customer Confidential Information. Where Customer is using Global Relay Archive, Global Relay acknowledges that all Archived Data is proprietary to and exclusively owned by Customer. Nothing in the Agreement grants Global Relay any right, title, or interest in or to any Archived Data or other Customer Confidential Information other than as necessary to perform the Services. Customer’s Archived Data is managed and controlled via the actions of Customer and its Users. Accordingly, to the extent of its control, Customer is responsible for the Archived Data it stores in Global Relay Archive.
3.2. Reservation of Rights in Services. Other than the limited rights of Customer to access and use the Services in accordance with the Agreement, no Intellectual Property Rights of a party will be transferred to the other. No other rights or ownership in the Services, express or implied, or any Intellectual Property Rights thereto are conveyed to Customer. Global Relay (or its licensors where applicable) is the exclusive owner of the Services and Works and reserves all of its rights, titles, and interest in and to the Services and Works, and any related Intellectual Property Rights, including all goodwill and any derivative works thereof, and anything developed or delivered by or on behalf of Global Relay under the Agreement. Global Relay may generate and use anonymized Usage Data to operate, improve, analyze and support the Services and for other lawful business purposes. All rights, now and in the future, in and to the Services not expressly granted to Customer are reserved by Global Relay.
3.3 License Grant of Global Relay’s Customer-Side Software. To the extent Customer and/or its Users are required to install and operate any Customer-Side Software on Customer Devices in order to access and use the Services, upon delivery of the Customer-Side Software, Global Relay hereby grants to Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license, subject to and in accordance with the Agreement, to: (a) download, install and run the Customer-Side Software on applicable Customer Devices, and (b) access and use the Customer-Side Software for the sole purposes set out in the applicable Order Form, and Customer may not use or disclose, nor permit the use or disclosure of, the Customer-Side Software, nor any Documentation or other materials related to its use, to any other party without the express written authorization of Global Relay in each case. All rights, now and in the future, in and to the Customer-Side Software not expressly granted to Customer are reserved by Global Relay. The license Term shall be the term stated in the applicable Order Form.
3.4. Customer Feedback. Global Relay shall have the right and sole discretion to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users, relating to the operation of the Services, without restriction, payment to or ownership by Customer.
4. CUSTOMER RESPONSIBILITIES AND USE OF SERVICES
4.1. Administrative User. Customer shall appoint one or more Administrative User(s) to be responsible for the internal management and administration of the Services for Customer including management of Customer’s Users, Accounts and User IDs, as well as communicating Customer Instructions. Customer is fully responsible for its choice of Administrative Users and any actions they take. For mutual security of Customer and Global Relay, each Administrative User must be appointed and removed (as applicable) by Customer delivering to Global Relay an executed Appointment of Administrator Form. At least one Administrative User must be appointed before any part of the Services can be accessed by Customer.
4.2. Customer Instructions. Customer agrees that each of its Administrative User(s) will have responsibility for all Customer Instructions. Each Administrative User, as a representative of Customer, has the ability, at the sole discretion of Customer to further assign its administrative privileges and access controls under the Administrative Account to other Accounts or Users of Customer. Customer hereby authorizes Global Relay to accept and act on any requests or directions pursuant to a Customer Instruction or otherwise from an Administrative User or any Person that has been assigned such administrative privileges or access controls by an Administrative User. In no event shall Global Relay be liable to Customer or any third party for such reliance by Global Relay on any Customer Instruction in a manner consistent with this paragraph.
4.3. Decline to Act. For mutual security of Customer and Global Relay, Global Relay may, in its reasonable discretion and in good faith, decline to act on a Customer Instruction until it is able to verify the validity of the Customer Instruction or the requesting Administrative User. Global Relay shall not incur any liability for exercising its discretion in a manner consistent with this paragraph.
4.4. Access. Only Users may access or use the Services. Without limiting the security obligations of Global Relay and Customer which are further set out in Section 7, Customer understands and acknowledges that Global Relay is not responsible for maintaining Accounts and User IDs for Users of Customer. Customer’s Administrative User(s) will have access rights to the online Management Portal to directly manage Customer’s role-based access controls and use of the Services. Unless otherwise specified in an Order Form or SOW, each subscribed User will be assigned by Customer a unique User ID for access to and use of the Services, and such User IDs shall only be used by the designated Users only and cannot be shared. Customer shall be responsible and liable for any and all access to and use of the Services by Customer’s Users. Specifically, Customer’s responsibilities shall include, but are not limited to: (a) maintaining and managing User Accounts and User IDs; (b) maintaining the confidentiality and security of Customer access information associated with Accounts and User IDs, or other account identifiers which Customer chooses or is assigned for its Users; (c) all activities that occur under such Accounts and User IDs in connection with the Services; (d) Users identification and authentication for access to the Services; and (e) the security of Customer’s own password authentication servers if Customer’s servers are used by Customer as part of the login authentication process. Global Relay may immediately suspend access to the Services if (i) Global Relay reasonably believes that a User or Customer is in material breach of this Agreement; (ii) a User or Customer engages in excessive utilization of the Services which affects, or is reasonably likely (in Global Relay’s sole opinion) to affect the availability, quality, or performance of Global Relay Systems or Services; or (iii) Global Relay in good faith suspects that any unauthorized third party has gained access to the Services using a credential issued to Customer.
4.5. Restrictions on Use. Customer is responsible for its Users’ compliance with the Agreement and Applicable Law. Except as expressly provided under the Agreement, Customer shall not and shall not cause or permit others to: (a) rent, sell, assign, lease, sublicense, transfer, redistribute, or encumber the Services, or otherwise make the Services available to or for the benefit of any other Person who is not a subscriber of the Services via Customer; (b) derive or attempt to derive or access the source code, source files, non-public APIs, or structure of all or any portion of the Services by reverse engineering, scraping, data mining, disassembly, de-compilation, or any other means, or otherwise modify, adapt, or create derivative works from the Services; (c) send or store infringing or unlawful material or malware; (d) circumvent access restrictions, attempt to otherwise gain unauthorized or wrongful access to, or disrupt the integrity or performance of, the Services or data contained in the Systems; (e) use or access the Services for the purpose of developing any application, software, product, or service that does or could in any way compete, interact, or interfere with the Services, except as permitted in writing by Global Relay; (f) use or access the Services for the purpose of building a competitive product or service or copying its features or user interface; (g) use the Services, or permit them to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication, or to share, distribute, or disclose the results of any benchmarking tests, comparative evaluations, or its internal assessments or audits of the Services with any third party without Global Relay’s prior written consent in each case; (h) use or combine the Services with other software, hardware, network, systems, products, processes, methods, material, or data (including Third Party Platforms), that are harmful to or manipulate proper use of the Services. Additionally, for security and performance purposes, Customer shall not, and shall not cause or permit others to: (i) perform social engineering, penetration, or other similar security or vulnerability testing on Global Relay’s Environment without the prior written consent of Global Relay in each case; (j) cause or use any application, bot, script, or other unauthorized automation, to negatively impact, including overloading, spamming, mass data downloading, obstructing, or interfering with, the stability or performance of Global Relay’s Systems or Environment; or (k) access, or use the Services, any Account, or Custom SMTP Delivery or APIs, in a manner not reasonably intended or inconsistent with the Agreement. Any illegal or unauthorized use or abuse of the Services or data is strictly prohibited. Global Relay reserves the right to charge the Tariff Rate or other Fees retroactively for any unauthorized use or bypassing of normal processes. Global Relay also reserves the right to suspend, throttle, or terminate access, Users, Accounts, or the Services, in whole or in part, if in its reasonable discretion it determines that any component of the Services or data is being used by or via Customer for an illegal or unauthorized purpose or in any manner inconsistent with the terms of the Agreement. Customer agrees to notify Global Relay promptly upon becoming aware of any unauthorized access or use.
4.6. Acceptable Use Policy. Customer acknowledges that the Services provided to Customer pursuant to the Agreement are also subject to, and Customer agrees that it shall comply with, Global Relay’s Acceptable Use Policy located at http://www.globalrelay.com/policies/acceptable-use, as updated from time to time.
5. GLOBAL RELAY ARCHIVE
These additional terms apply where Customer is using Global Relay Archive Services.
5.1. Archived Data Capture. Customer shall ensure that: (a) Global Relay is provided a complete and accurate list of all email domains, web domains, and other Data Types required to be archived, including any updates to the same; (b) Global Relay is provided a complete and accurate list of Customer’s Accounts, Users, User aliases, and relevant Customer Devices, as applicable, including any updates to the same; (c) Global Relay is provided with any requirements regarding physical and logical segregation of Customer Archived Data within Global Relay Archive before Provisioning commences; (d) Configuration of all Data Types required to be archived is completed in accordance with Global Relay’s Specifications; (e) all Data Types required to be archived are properly formatted in accordance with industry standards supported by Global Relay’s Specifications, and successfully delivered to Global Relay Archive for ingestion; (f) any Legacy Data Import is provided to Global Relay in an industry standard format which has been tested and verified by Global Relay as supported by Global Relay Archive, and is delivered to Global Relay using encrypted media; (g) any Data Type or Third Party Platform (including versions and formats) it requires to be archived are in fact supported by Global Relay Archive (see Section 6 (Third Party Platforms) for details); and (h) any and every Data Type it requires to be archived must be individually and expressly set out in the applicable Order Form. Specifically, (i) any SMTP forwarding of a Data Type (other than standard email) must be itemized as a separate Data Type Account from Archive for Email, and must be delivered in accordance with Global Relay’s Specification for Custom SMTP Delivery; and (ii) any API or similar capture and delivery of a Data Type must be itemized as a separate Data Type Account from any other Data Type (for example, LinkedIn, Twitter, and Facebook count as three separate Data Types, not one ‘social media’ feed). Global Relay reserves the right to charge a Fee from inception for each such SMTP forwarded Data Type, and/or each such API or similarly captured Data Type. Global Relay is not responsible to Customer for any Data Type or Third Party Platform (including versions and formats) that is not supported, or that is not technically able to be captured or ingested by Global Relay Archive for reasons beyond the control of Global Relay.
5.2. Monitoring Data Flow. Customer shall monitor its delivery of each Data Type to Global Relay Archive. Upon Customer’s written request, Global Relay will generate a daily email to Customer that reports statistics on Global Relay’s receipt and processing of each Data Type from Customer and each Customer User. Customer is responsible to review these reports and to 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 Data Types which may result in an outage, disablement of journaling, or other disruption of data flow to Global Relay Archive. Customer shall ensure that no data or messages are transmitted through its email/IM server(s) or otherwise, until Customer’s upgrade, patch, or maintenance has been completed and journaling or data flow to Global Relay Archive has been enabled or reactivated.
6. THIRD PARTY PLATFORMS
These additional terms in Section 6 apply where Customer is using any Services that interoperate with any Third Party Platforms or Email Services.
6.1. Availability of Third Party Platforms. Global Relay does not control and is not responsible for any Third Party Platforms. Such Third Party Platforms may change their formats, APIs, delivery methods, or posting times without notice to Global Relay, or may have inaccuracies in format schemas, corruptions or other changes, which may affect the availability or performance of the Services that interoperate with Third Party Platforms. Notwithstanding anything else in the Agreement, Global Relay does not and cannot warrant the availability or performance of any Third Party Platforms, and Global Relay expressly disclaims any and all liability related to, connected with, or arising from Third Party Platforms including any outages, delivery delays, delivery methods, corruption of data, processing failures, failure to format data in accordance with such Third Party Platform’s data schema, changed or discontinued or failed services, or termination of service. Additionally, Customer is responsible to ensure its Users only use versions of the applicable Third Party Platform or Email Services clients that are expressly supported by Global Relay Archive Services (currently listed here: https://www.globalrelay.com/discover/#data-feeds-tab). Customer may contact Global Relay Support to confirm an updated list of supported Third Party Platforms. Global Relay also reserves the right to modify or discontinue support for any Third Party Platform service, temporarily or permanently, upon reasonable advanced Notice. 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 with reasonable advanced notice. To assist with the administration and maintenance of accurate data flow and Account statistics, where a User of an Account associated with a particular Third Party Platform or an Email Service has not accessed that particular Account for more than 60 consecutive days, the User’s license related to such Account will be deemed abandoned and Global Relay may adjust Global Relay’s license count with such Third Party Platform or Email Services to account for such User’s inactivity. To regain access, Customer may contact Global Relay Support.
7.1. Global Relay. In connection with delivery of the Services and its obligations under the Agreement, Global Relay has implemented and will continually maintain appropriate security procedures, measures, and controls, including appropriate electronic, physical, and organizational security procedures, measures, and controls to reasonably guard against accidental, unauthorized, or unlawful access, destruction, use, alteration, modification, disclosure, or loss of Archived Data.
7.2. Customer. In connection with its use of the Services and its obligations under Section 4 (Customer Responsibilities and Use of Services), Customer will continually maintain appropriate security procedures, measures, and controls, including appropriate electronic, physical, and organizational security procedures, measures and controls to reasonably guard against accidental, unauthorized, or unlawful access, destruction, use, alteration, modification, disclosure, or loss of Archived Data or a Data Breach.
7.3. Suspicious Activity. Notwithstanding any other provisions of the 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 an incident that impacts internet security infrastructure or transmissions in a manner which may cause security or performance 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 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 AND NON-DISCLOSURE
8.1. Protection of Confidential Information. The parties to the Agreement shall not use any Confidential Information (which term includes Archived Data and Personal Data) of the other party for its own benefit or for any purpose other than to fulfill its respective obligations under the Agreement. Each party agrees to receive and preserve such Confidential Information as proprietary and confidential information, exercising the same degree of care a reasonable and careful person would exercise with its own confidential information, and in no case will it use less than commercially reasonable efforts consistent with the standards of practice in the industry to prevent unauthorized access to and disclosure of the other party’s Confidential Information. The parties further agree that neither will make Confidential Information of the other party available in any form to, or for the use or benefit of, any Person except as provided in the Agreement, and that neither will use any Confidential Information of the other, or the Services, to compete with the other party in its business.
8.2. Non-Disclosure Obligations. Neither party shall disclose the Confidential Information of the other party to any Person except:
(a) to its employees and non-employee representatives who need to know the information to fulfill its respective obligations under the Agreement or in connection with the Services, and are bound by confidentiality obligations no less protective than those in the Agreement;
(b) where disclosure is required or authorized by Applicable Law or required, compelled, or requested by Governmental or Regulatory Authority or administrative or judicial process or proceeding (collectively “Legal Process”); or
(c) with prior written consent of the other party.
8.3. Notice. In the event that a party is legally compelled under Legal Process to provide access to the Archived Data or other Confidential Information of the other party, then the Disclosing Party undertakes, to the extent legally permissible, to promptly provide the other party with written notice of such an event so as to afford the other party the opportunity (at such other party’s cost) to limit, monitor, control or prevent the disclosure. A party’s obligation to provide written notice and the opportunity under the foregoing sentence shall not be interpreted as preventing that party from meeting a deadline or other requirements under Applicable Law or Legal Process. Customer is responsible for all costs to comply with Legal Process and any related disclosure of its Archived Data.
8.4. Publicity. 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 for general information and business 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.
8.5. Data Privacy. The parties acknowledge and agree that each of Global Relay and Customer may have certain responsibilities prescribed by applicable Data Protection Law in connection with the safeguarding and privacy of certain Personal Data and PII. Global Relay hereby acknowledges such responsibilities to the extent required thereby as the archive service provider or Processor of the Archived Data. Global Relay agrees, and will cause Global Relay Personnel to agree, that any Personal Data related to Customer shall be treated as Customer’s Confidential Information hereunder. Customer agrees, and will cause Customer personnel to agree, that any Personal Data related to Global Relay shall be treated as Global Relay’s Confidential Information hereunder.
8.6. Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 8 (Confidentiality and Non-Disclosure), the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to secure specific performance by the Receiving Party of its obligations in this Section 8 (Confidentiality and Nondisclosure) and to prevent a breach of this Section 8 (Confidentiality and Nondisclosure) by the Receiving Party.
9. FEES, PAYMENTS, AND CHANGE ORDERS
9.1. Fees and Payments. Customer will execute an Order Form which sets forth the specific terms and Services subscribed for by Customer during the Term. Customer agrees to pay all Fees due under any Order Form or otherwise due under the Agreement. Unless alternative payment terms have been specified in the applicable Order Form, Customer shall pay all undisputed Fees: (a) on or before the invoice due date; and (b) in advance, based on a quarterly Billing Cycle, provided that any additional Fees due under the Agreement that accrue in arrears may be billed separately or in a subsequent Billing Cycle. Customer may pay by ACH/EFT, check, or credit card. If paying by credit card, Customer hereby gives its authorization for all payments required to keep its accounts current. All credit card payments will normally be processed on the invoice due date. Customer is responsible for providing complete and accurate billing and contact information, including updates to Account and User counts related to the Services, and for promptly reporting any changes to such information to Global Relay. Invoices will be presented in Global Relay’s standard format and billed to the entity stated on the Order Form. Global Relay will not use a third party electronic billing vendor to submit invoices to Customer. Billing administration Fees may apply if: (a) there is a payment method failure (including, but not limited to, insufficient funds or cancelled checks); (b) Global Relay is required to re-invoice Customer for any reason; (c) subject to Applicable Law, Customer makes credit card payments greater than $5,000.00; or (d) Customer requests, and Global Relay agrees to, any changes to Global Relay’s standard billing process and invoicing format.
9.2. Change Orders. Customer may request New Services from time to time during the Term. “New Services” are services that are materially different from or in addition to the Services described in the then-current Order Form(s). New Services may include, but not limited to, adding a new Data Type to be archived, adding ancillary Services, additional functionality, customization of support packages, Legacy Data Import, or other requirements of Customer that alter the original scope of the Services (but do not constitute Work under Section 2.7 (Development Work)). Customer may be required to execute a Change Order which sets out the New Services subscribed for by Customer, associated costs, scope, and any additional obligations, or effects on the Services set out in the then-current Order Form(s). New Services will be billable from the effective date of the Change Order at the standard Global Relay Prices unless otherwise specified therein. New Services will be coterminous with the Term for the existing Services.
9.3. True-ups . Customer may increase its User and Account subscriptions during the Term, provided that Customer promptly reports any such changes to Global Relay. Global Relay may charge Customer based on the greater of: (a) the minimum set out in Section 9.4 (Subscription Minimum); and (b) Customer’s actual User and Account numbers. Global Relay will invoice Customer (subject to any applicable minimums) based on User and Account counts from Global Relay’s Systems and, where applicable, from Customer’s Microsoft Active Directory and/or other means provided by Customer to Global Relay, in good faith, within 10 business days of the end of each Billing Cycle, or as reasonably requested by Global Relay. Customer may not decrease the number of Users or Accounts below any minimum set out in an Order Form during the Term. Global Relay reserves the right, with Customer’s reasonable cooperation, to perform a reconciliation of actual usage/Account numbers versus then-current quantities of Customer’s Services, Users, or Account subscriptions under the then-current Order Form(s) (“True-up”). If, as a result of any such True-up, Global Relay reasonably determines that Customer’s actual use of the Services has exceeded its subscription quantities, or where Customer has reported an increase in Account subscriptions, Global Relay will make the pro-rated adjustments to the corresponding Fees from the start of such excesses or changes and invoice these Fees in the subsequent invoice(s) or in a separate True-up invoice.
9.4. Subscription Minimum. Subject to Section 9.3 (True-ups), the initial Account numbers stated in Customer’s Order Form or the average Account numbers over the last 12 months (prorated if less than 12 months), whichever is higher, will be the minimum billable commitment of Customer unless otherwise agreed in writing by the parties.
9.5. Non-Payment. Any Fees due and owing by Customer under the Agreement (excluding solely any portion disputed in good faith) that are not received by Global Relay within 30 days of the invoice due date constitutes a Material Breach by Customer. Such overdue Fees are subject to a late fee of 1.5% per month, as calculated from the invoice due date until the date payment is received by Global Relay. Without limiting other remedies, if such default pursuant to this Section 9.5 (Non-Payment) is not promptly remedied to Global Relay’s reasonable satisfaction following Customer’s receipt of written notice of non-payment, Global Relay reserves the right to suspend Customer’s access to any and all of the Services until Customer has paid in full such overdue Fees, plus a $200.00 reactivation fee. Global Relay will not be liable to Customer for any suspension of access to the Services made in accordance with this Section 9.5 (Non-Payment), and the Fees will continue to apply and accrue during any such suspension. Customer shall not be entitled by reason of set-off, counterclaim, abatement, or other similar deduction to withhold any amount due to Global Relay. Each party agrees that, in addition to, and without limitation of, any right of set-off, lien or counterclaim a party may otherwise have, each party shall have the right and be entitled, at its option, to offset balances held by it or by any of its Affiliates for account of any other party and/or any of their respective Affiliates at any of its offices.
9.6. Fee Dispute. Customer has 30 days from the invoice date to notify Global Relay in writing if there is any Fee dispute or otherwise the invoice will be deemed correct. Any notice by Customer must provide Global Relay with sufficient detail of the claimed Fee discrepancy, and other information that Global Relay may reasonably request, in order to review and resolve the claimed Fee discrepancy. The parties will work together in good faith to diligently resolve the discrepancy. During any resolution period, Customer will continue to pay all undisputed portions of the invoiced amount to Global Relay. If the claimed Fee discrepancy is verified, a pro-rated refund will be issued as a credit note.
9.7. Price Adjustments. Global Relay may, on an annual basis, increase the Fees by amounts equal to 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. Prices are also subject to change on renewal, upon written Notice to Customer before the end of the then-current Term. Unless otherwise agreed in writing by the parties, continued use of the Services by Customer past the start of the Renewal Term constitutes acceptance by Customer of any refreshed Order Form or Price changes for the Services for the Renewal Term.
9.8. Taxes of Customer. Fees and any other charges under the Order Forms do not include any local, provincial, state, federal, or foreign taxes, levies or duties of any nature, including value-added, sales, excise, use or withholding taxes assessable by any jurisdiction (“Taxes”). Customer is responsible for paying all Taxes (including withholding taxes that arise from instances where a tax treaty does not eliminate double taxation) assessable by any jurisdiction, excluding only taxes based on Global Relay’s net income. If Customer is obliged to withhold or deduct any portion of the Fees, then Global Relay shall be entitled to receive from Customer such amounts as will ensure that the net receipt, after Taxes, to Global Relay in respect of the charges is the same as it would have been were the payment not subject to the Taxes. If Global Relay has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Global Relay with a valid tax exemption certificate authorized by the appropriate taxing authority.
10. WARRANTIES AND DISCLAIMERS
10.1. GLOBAL RELAY AND CUSTOMER. GLOBAL RELAY AND CUSTOMER EACH WARRANT THAT IT SHALL PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT: (A) WITH WELL-TRAINED PERSONNEL WHO POSSESS THE REQUISITE SKILLS, QUALIFICATIONS, AND EXPERTISE, (B) IN A TIMELY AND PROFESSIONAL MANNER, (C) CONSISTENT WITH APPLICABLE GENERALLY ACCEPTED INDUSTRY STANDARDS, (D) IN MATERIAL COMPLIANCE WITH THE TERMS OF THE AGREEMENT, AND (E) IN A MANNER THAT COMPLIES WITH APPLICABLE LAW.
10.2. GLOBAL RELAY. GLOBAL RELAY FURTHER REPRESENTS AND WARRANTS THAT: GLOBAL RELAY IS COMMITTED TO MAKING COMMERCIALLY REASONABLE EFFORTS TO PROVIDE CUSTOMER A HIGH LEVEL OF SERVICE AVAILABILITY, EXERCISING THE SAME DEGREE OF CARE A REASONABLE AND CAREFUL PERSON WOULD EXERCISE IN SIMILAR CIRCUMSTANCES, AND SUBJECT TO CUSTOMER’S AND CUSTOMER’S VENDORS’ COOPERATION AND COMPLIANCE WITH THE AGREEMENT. NOTWITHSTANDING THE FOREGOING, TEMPORARY UNAVAILABILITY OF THE SERVICES MAY OCCUR AS A RESULT OF MAINTENANCE, SOFTWARE RELEASES, HARDWARE RELEASES, SECURITY ISSUES, INTERNET 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 EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND 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 AVAILABILITY, ACCURACY, SECURITY, SAFETY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ITS SERVICES, SOFTWARE, OR CONTENT, OR THAT THE SERVICES ARE ERROR-FREE, OR THAT ANY ERRORS IN THE SERVICES AND/OR DOCUMENTATION WILL BE CORRECTED. GLOBAL RELAY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES WILL SATISFY ANY OF ITS STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE, OR OTHERWISE ENSURE COMPLIANCE WITH CUSTOMER’S LEGAL REQUIREMENTS, OR ANY APPLICABLE LAW. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE SUFFICIENT FOR CUSTOMER’S PURPOSES WITH RESPECT TO CUSTOMER’S REQUIREMENTS UNDER APPLICABLE LAW. NO ADVICE, INFORMATION, INSTRUCTIONS, OR COST PROJECTIONS, WHETHER ORAL OR WRITTEN, FROM GLOBAL RELAY OR ITS EMPLOYEES, REPRESENTATIVES, OR AGENTS, OR THROUGH OR FROM USE OF THE SERVICES SHALL CREATE ANY PROMISE, WARRANTY, OR OBLIGATION NOT EXPRESSLY STATED IN THE AGREEMENT. ANY REPRESENTATION OR WARRANTY MADE UNDER THIS AGREEMENT DOES NOT APPLY TO THE EXTENT, AS APPLICABLE, (A) ISSUES ARE CAUSED BY MISUSE OR UNAUTHORIZED MODIFICATIONS TO THE SERVICES BY CUSTOMER OR A THIRD PARTY, (B) ISSUES ARE IN OR ARE CAUSED BY THIRD-PARTY PLATFORMS, OR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE GLOBAL RELAY’S CONTROL, OR (C) THE SERVICES ARE TEST ENVIRONMENTS, DEMOS AND BETAS, OR OTHER FREE OR EVALUATION USE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE FULLEST EXTENT AND SHORTEST PERIOD LEGALLY PERMITTED.
Customer releases Global Relay from and agrees to defend, indemnify, and hold harmless Global Relay, its Affiliates, directors, officers, employees, agents, and Partners from and against any Claims and for related Damages, to the extent connected with, arising out of, or related to Customer’s: (a) negligence, or misuse of the Services; (b) breach of the Agreement; or (c) use of the Services in combination with other software, hardware, network, system, products, processes, methods, material, or data that is not provided or approved in writing by Global Relay (including Third Party Platforms), if the alleged Claims or Damages relates to such combination; 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 for whom it is in law responsible.
12. LIMITATION OF LIABILITY
12.1. Exclusion of Consequential Damages. Notwithstanding any other provision of the Agreement or any other related agreements, in no event shall either party be liable to the other party, its clients, Affiliates, or any other Person under or in relation to the Agreement for any special, indirect, incidental, consequential, punitive damages, or loss of use, loss of production, loss or corruption of data, loss of profits or revenues, loss of business, 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 related to the 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 damages and regardless of whether any of the foregoing is determined to constitute a fundamental breach or failure of essential purpose.
12.2. Limit. Except for Customer’s obligations set out in Section 11 (Indemnity), notwithstanding any other provision of the Agreement, the aggregate liability of either party and its Affiliates to the other party or any Person whatsoever arising out of, in connection with, or related to the Services or the Agreement, whether in contract or tort or under any other theory of liability, including without limitation for any breach of or default under the Agreement or any misrepresentation or negligence, in the aggregate, shall be limited to proven direct Damages caused by the party in an amount not to exceed the amount of monthly recurring Fees Customer has paid or are payable to Global Relay under the Agreement in the three months preceding the event giving rise to the liability. This limit is cumulative and the existence of more than one event 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 the Agreement would be substantially different. No action, regardless of form, relating to the Agreement or the Services may be brought by either Party more than two years after the cause of action has accrued under Applicable Law. Notwithstanding any other provision of the Agreement or any other related agreements, neither party excludes or limits its liability hereunder for any liability which cannot under be excluded or limited under Applicable Law.
12.3. Mitigation. Each party will have a duty to mitigate damages for which the other party is responsible.
12.4. Relief. Where Global Relay is in Material Breach of the Agreement, and such breach is attributed to Customer’s act, omission, or breach of its obligations under the Agreement, Customer may not exercise any of its rights or remedies in association with Global Relay’s Material Breach, to the extent caused by Customer. Notwithstanding the foregoing, each of Global Relay and Customer will in such cases, continue to perform its respective obligations as otherwise set out in the Agreement and will use commercially reasonable efforts to cure any such breaches.
13. TERM AND TERMINATION
13.1. Term. The Agreement will commence on the Effective Date. The Agreement will continue in effect, together with any subsequent renewals, amendments, or Change Orders until terminated pursuant to this Section 13, unless otherwise agreed by the parties in writing. An Order Form sets out the initial Term for the applicable Services (the “Initial Term”). Unless specifically stated otherwise in the Order Form, at the expiry of the Initial Term, any applicable Order Form(s) (including any applicable Change Orders, which shall be coterminous) shall, subject to Section 9.7 (Price Adjustments), be automatically renewed for additional two-year terms (each a “Renewal Term”), unless either party gives written Notice to the other party of its intent not to renew at least 90 days prior to (and not more than 120 days before) the expiration of the Initial Term or then current Renewal Term, or the parties otherwise negotiate terms of a new Order Form. In the event Customer continues to use the Services beyond the expiration of any Test Period or the Term (after termination or non-renewal, as applicable) without a valid continuing Order Form, then Global Relay’s Tariff Rate will apply unless and until the parties mutually agree in writing otherwise.
13.2. Termination. Subject to the provisions of this Section 13 (Term and Termination) and proper Notice pursuant to Section 14.4 (Notices and Communications) to Global Relay Legal or Customer’s Contact, as applicable, upon termination of the Services by either party, all rights under the Agreement and the provision of Services will terminate in accordance with the Agreement. If Customer is using Global Relay Archive, this includes termination of all access to Global Relay Archive. Neither party will be liable to the other for any termination of the Services in accordance with the Agreement and the following terms:
(a) Termination by Customer. Customer may terminate the Agreement: (i) at the expiry of the Term in accordance with the Notice requirement of Section 13.1 (Term); or (ii) for cause upon Global Relay’s Material Breach in performing its obligations under the Agreement, if the reason for that breach is not remedied to Customer’s reasonable satisfaction within 30 days following Global Relay’s receipt of written Notice. For termination under subsection 13.2(a)(ii), Customer will not be charged for Fees owed by Customer for the remainder of the Term due after the effective date of termination of the Services, and a prorated refund will be given for any Fees prepaid by Customer. Subject to the foregoing, in no event shall any termination relieve Customer of the obligation to pay any Fees incurred for the period prior to the effective date of termination.
(b) Termination by Global Relay. Global Relay may terminate the Agreement: (i) at the expiry of the Term in accordance with the Notice requirement of Section 13.1 (Term); (ii) for cause upon Customer’s Material Breach in performing its obligations under the Agreement, including for non-payment in accordance with Section 9.5 (Non-Payment), if the reason for that breach is not remedied to Global Relay’s reasonable satisfaction within 30 days following Customer’s receipt of written Notice; or (iii) in the case where there is not a governing Order Form, Global Relay may terminate this Agreement upon 120 days’ Notice. For termination under subsection 13.2(b)(ii), Customer will be charged for any and all Fees owed by Customer for the remainder of the Term and no refund will be given for any Fees prepaid by Customer.
(c) Termination on Bankruptcy. A party may terminate the Agreement immediately: (i) if the other party, upon proof, is declared insolvent or adjudged bankrupt by a court of competent jurisdiction or makes an assignment for the benefit of creditors; or (ii) 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 as a result of Customer’s bankruptcy, all Fees owed by Customer up to the date of a valid termination shall immediately be due and payable. If Customer continues to use Global Relay’s Services to preserve its Archived Data, the Fees for Services set out in the Order Form will continue to apply.
(d) Transition Assistance. Provided Customer’s Fees for the Services have been paid in full for the Term, upon mutual written agreement of Global Relay and Customer, Global Relay will perform custom Services to facilitate Customer’s termination and related transition of Services (the “Transition Assistance Services”). A new Order Form will be executed by Customer detailing the Transition Assistance Services, which may include certain of the services set out in Section 13.3.
13.3. Return or Disposition of Archived Data. During the Term Customer may, and on termination Customer must, elect in writing to either:
(a) engage Global Relay to export a copy of its Archived Data stored by Customer in its Global Relay Archive, for a Fee as set out in the applicable Order Form, or otherwise at Global Relay’s standard rates, based on the digital media and file format requested and amount of Archived Data to be returned;
(b) engage Global Relay to preserve a Static Archive of existing Archived Data with online access restricted to the Administrative User, at Global Relay’s standard rates. Upon agreement by Global Relay, a new Order Form will be executed by Customer for this Static Archive Service and the applicable Fees will be paid in advance for the entire Term of such engagement; and/or
(c) direct Global Relay to permanently delete and dispose the Archived Data at the expiry of the Term or Retention Term, whichever comes first, (unless otherwise mutually agreed in writing), subject to any applicable Professional Services rendered.
In accordance with Global Relay policy on data retention, Archived Data will not be deleted during the Term until: (i) Global Relay has received express written direction from Customer; or (ii) the Retention Term has expired (subject to any applicable Legal Holds and subject to the remainder of this paragraph). In the event that Customer has not engaged Global Relay to either export a copy of its Archived Data or preserve its Archived Data in a Static Archive in accordance with Section 13.3(a) or (b) respectively within 120 days following the effective termination of Services, including termination of Services for non-payment (collectively, the “Abandonment Date”), then Customer is hereby put on notice that Global Relay may, without incurring any liability, securely delete Customer’s Archived Data after the Abandonment Date, and is otherwise not responsible for any of Customer’s Archived Data that remains in Global Relay Archive after the Abandonment Date.
13.4. FINRA Regulatory Notice 18-31. This paragraph solely applies to Customer or a Customer Affiliate that during the Term: (a) is or has been a registered FINRA member firm (or is otherwise subject to SEC 17a-4); and (b) where Global Relay is validly appointed and currently acts as its SEC 17a-4 record keeper and/or designated third party downloader (“D3P”). Provided Customer is acting in good faith, in connection with its role as D3P, Global Relay will not delete or discard applicable Archived Data in the event of non-payment by Customer of Fees due under the Agreement unless or until: (x) the Retention Term for the applicable Archived Data has expired; or (y) Global Relay has either: (i) made the applicable Archived Data available to the applicable Governmental or Regulatory Authority, or (ii) the applicable Governmental or Regulatory Authority provides written consent to such deletion. In the event of such non-payment, notwithstanding anything to the contrary in the Agreement, Global Relay has the right, without liability, to disclose such non-payment to the applicable Governmental or Regulatory Authority, and provide it with access to, or a copy of, the applicable Archived Data. Such non-payment is deemed a Material Breach by Customer under the Agreement, and any unpaid and associated Fees will continue to accrue and be owed by Customer.
13.5. Survival. The following will survive the termination of the Agreement: Section 3 (Proprietary Rights), 8 (Confidentiality and Non-Disclosure), 10 (Warranties and Disclaimers), 11 (Indemnity), 12 (Limitation of Liability), this Section 13 (Term and Termination), Section 14 (General), and any other provisions of the Agreement that by their nature should survive termination of the Agreement.
14.1. 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 the 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 the Agreement or by written direction of the other party. Each party is solely responsible for all expenses associated with its performance under the Agreement unless otherwise specifically indicated. No third party beneficiary relationships are created by the Agreement. Nothing in the Agreement shall restrict in any way the freedom of either party to conduct as it sees fit any other business or activity whatsoever.
14.2. Assignment. The Agreement, in whole or in part, 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 the Agreement to an Affiliate or successor entity upon 30 days’ Notice to the other party.
14.3. Enurement. The Agreement will enure to the benefit of and is binding upon the parties to the Agreement and their respective successors and permitted assigns.
14.4. Notices and Communications. All Notices (other than Customer Instructions) required or provided by way of the Agreement shall be in writing and shall be deemed to have been given when delivered (with proof of successful delivery) via: (a) email; (b) mail (registered or certified, postage prepaid with receipt requested); (c) courier; or (d) 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:
Attention: Legal, with a copy to: Shannon Rogers, President
Global Relay Communications Inc.,
220 Cambie St., 2nd Floor, Vancouver, BC V6B 2M9, Canada,
Email: email@example.com; Shannon.firstname.lastname@example.org
To Customer: the address set out on the Order Form.
|Global Relay||IT Support||Support Deskemail@example.com|
|Customer||IT Support||Administrative User||designated contacts set out in the AOA Form|
admin@customerdomain or alternatively designated contact
admin@customerdomain or alternatively designated contact
14.5. Force Majeure. Global Relay shall not be liable nor will Customer have the right to terminate for any failure of Global Relay to perform any of its obligations under the Agreement during any period in which such failure to perform arises directly or indirectly out of a Force Majeure event, provided that Global Relay promptly notifies the other party of such delay in writing and uses its commercially reasonable efforts to resume performance and minimize the adverse effect of such events.
14.6. Entire Agreement.
(a) Entire Agreement. The Agreement is comprised of this MTOS, including any amendments or addendums, applicable Order Form(s), and the most current version of all schedules or policies referred to in the Agreement. These together constitute the entire understanding and agreement between the parties for the provision and use of the Services and supersede any and all prior agreements, correspondence, understandings and discussions, whether written, oral, or electronic, relative to this subject matter.
(b) Order of Priority. Any conflict or inconsistency in the interpretation of the Agreement shall be resolved by giving precedence according to the following order of priority: (i) the applicable Order Form(s) with the most recent prevailing; (ii) this MTOS; (iii) any applicable Schedules listed in Section 14.6(d); and (iv) any applicable policies, unless the applicable Schedule or policy expressly states that any part of it is to have priority over the applicable Order Form(s) or provision of this MTOS. The parties agree that any other term or condition contained in a purchase order or in any other form or documentation of Customer (excluding Order Forms under the Agreement) is void.
(c) Definitions and Interpretation. In the Agreement, all capitalized terms, unless specifically defined herein, have the meanings ascribed to such terms in the Standard Definitions (located here and at: https://www.globalrelay.com/policies/standard-definitions/, incorporated by reference in Schedule A) to this Agreement. To the extent of any conflict or inconsistency between the Standard Definitions and the terms specifically defined in an Agreement document (without reference to Schedule A), the definitions contained in that Agreement document will prevail over the Standard Definitions. The word “including,” “include,” and “includes” shall be interpreted to mean including/include/includes without limitation unless the context otherwise requires.
(d) Schedules. As of the Effective Date, the following Schedule(s) are incorporated herein by reference and deemed to be a part of the Agreement:
Schedule A Standard Definitions
14.7. Severability and Non-waiver. If any part of the Agreement is found to be invalid, that part shall be construed in a manner consistent with Applicable Law to reflect, as closely as possible, the intention of the parties, and all other parts of the 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.
14.8. Governing Law. The 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. The parties agree that, to the extent permitted by law, the provisions of the following legislation shall not apply to this Agreement: (i) the United Nations Convention on Contracts for the International Sale of Goods, (ii) the Uniform Computer Information Transactions Act and/or (iii) any state statute related to electronic contracts, electronic signatures, or electronic records. Any action or proceeding brought to enforce the terms of the Agreement will be brought in a court of competent authority in the city of Vancouver, British Columbia. Each of the parties agree that the foregoing shall preclude the jurisdiction and application of any other forum and law and hereby irrevocably 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 THE AGREEMENT.
14.9. Dispute Resolution. In the event of a dispute between Global Relay and Customer, 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 the 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 the Agreement. This dispute resolution procedure will not affect the obligation of either party to perform, subject to Global Relay’s right to suspend access to the Services in accordance with Section 9.5 (Non-Payment) or the right of either party to enforce the Agreement.
14.10. Currency. All amounts, Prices and Fees are in United States Dollars (USD), unless otherwise indicated in the applicable Order Form.
14.11. Non-Solicitation. During the Term of the Agreement and for a period of six months after the end of the last Term, Customer will not, directly or indirectly: (a) 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 (b) 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.
14.12. Electronic Signatures and Contracts. Customer’s use of the Services includes the ability to enable Customer’s Administrative User(s) to: (a) electronically enter into agreements via Global Relay’s website, digital signature or email, (b) make Change Orders to the Services, and (c) 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.
14.13. Accepted Terms. Order Forms, AoA forms, and other Global Relay forms, incorporating by reference this MTOS, may be executed by original, digital signature, email transmission of a .pdf or image file format document, or otherwise, in one or more counterparts, each of which shall be deemed an original, but all of which together constitute one and the same document.
– End of Master Terms of Service –
Any questions relating to the Master Terms of Service or other information may be directed to firstname.lastname@example.org.