Global Relay Communications Inc. ("Global Relay") has developed and owns all the rights to its enterprise message archiving ("Global Relay Archive"), compliance supervision ("Compliance Reviewer"), web and mobile archive access ("Global Relay Search") and instant messaging ("Global Relay Message") services, and specializes in industry-specific online messaging and data compliance solutions.
1.1. Agreement Documents. These Master Terms of Service set forth the framework terms and conditions on which Global Relay, either directly or through one of Global Relay's partners ("Partner"), provides the Services to Customer and, if applicable, any Customer Affiliates (collectively "Customer"). These Master Terms of Service also govern the subscription and use of Global Relay's Services by Customer under any Statement of Work, Fee Agreement, or Change Order, each an "Order Form". Any then-current Order Form(s) together with the Master Terms of Service form the "Agreement" between the parties.
1.2. Updates. Global Relay may update these Master Terms of Service from time to time without further notice. The most current version will take effect upon posting at http://www.globalrelay.com/policies/terms. Except as authorized by this Agreement, no provision of the Order Form(s) may be amended without mutual agreement in a writing signed by the parties. By subscribing for, accessing, or using any services provided by Global Relay, Customer agrees, without limitation or qualification, to be bound by these Master Terms of Service.
1.3. 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 in all material respects; 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.
1.4. Affiliates. Upon mutual agreement between the parties, Global Relay will provide the Services or any part of the Services to any other Customer Affiliate as if such Services were provided directly to Customer. Except where Customer Affiliate has directly entered into an agreement or Statement of Work with Global Relay 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 Agreement applicable to Customer; (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 this 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 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 this Agreement.
2.2. Order Form. The Order Form that initiates the Services will at a minimum set forth, in addition to the specific Services subscribed for by Customer, the Initial Term, Fees, Prices, initial User count, payment method, Billing Cycle and Effective Date for the commencement of the Services.
2.3. Activation. On or after the Effective Date of the Agreement, Global Relay will initiate activation of the Services subscribed for by Customer.
2.3.1. Provisioning. Global Relay will setup, activate, and test the Services on its Systems for Customer ("Provisioning").
2.3.2. Configuration. Upon completion of the Provisioning by Global Relay, Global Relay will provide Customer 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, (a) the timely and accurate completion of the Configuration (including configuration of Users and User aliases, and supported versions of Third Party Networks if applicable) and (b) where Customer is using Global Relay Archive, verifying with Global Relay the secure and proper end-to-end connection and message flow, including the sending, receipt, and archiving of messages in Global Relay Archive. 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. Unless otherwise scheduled between the parties in advance, Global Relay will be available to assist with Configuration during Business Hours.
2.4. Evaluation. For evaluation purposes, Global Relay may make available trial services, demo Accounts, or a proof of concept (POC) Environment for testing of certain Services (collectively, "Trial"). The scope, cost, and Trial Period for the Trial of any Services shall be determined by the parties and set out in an Order Form. Services provided during the Trial are subject to the Agreement from the Effective Date unless otherwise agreed in writing by the parties.
2.5. Service Availability. Global Relay will make commercially reasonable efforts to cause the Services to be available to Customer at all times, except for Scheduled Down Time, which will be scheduled to the extent possible outside Business Hours. Global Relay reserves the right to immediately implement Emergency Maintenance to prevent or remediate a Service impacting situation or security concern. Global Relay will endeavor to apply any such Emergency Maintenance during Scheduled Down Time, and to make commercially reasonable efforts to provide Customer with as much advance notice as possible before any Emergency Maintenance.
2.6. Updates & 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 this 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 this Agreement. Global Relay will endeavor to provide Customer with reasonable advanced notice of any Release.
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 forth in a Statement of Work, with applicable Acceptance Criteria, mutually agreed in writing by the parties.
2.8.1. Standard Support. Standard Support. Included with the Services, the following types of standard support (“Support”) are provided at no additional charge by Global Relay during Business Hours to Customer’s Administrative User(s), requesting support on behalf of Customer’s end Users, via email, phone, webinar, or remote desktop:
(a) Technical Support to assist with troubleshooting and resolving Provisioning, Configuration, and operational 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 email@example.com, or
(ii) a phone call from Customer to Support at 604.484.6630 or 866.484.6630.
(b) Training Support to assist with setup of compliance and supervision tools, setup for data exports or self-directed eDiscovery/audit projects, and other training support related to the use of the Services.
2.8.2. Professional Services. Customer may optionally engage Global Relay to perform any of the following additional 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:
(a) Audit & eDiscovery Services to assist with independent third party audit and eDiscovery projects carried out by Global Relay’s Compliance, Audit & eDiscovery teams;
(b) Data Services to assist with consultative or customized support with respect to special requests or issues related to Customer’s Legacy Data or Archived Data; or
(c) Technical Services to assist with Standard Support outside of Business Hours, customized implementation/configuration, other consultative or project management services, or other advanced training or support beyond the scope of Support services outlined in Section 2.8.1.
2.9. Control and Operation. Subject to the terms of this Agreement, Global Relay will have control over the 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 other Systems of Customer, Customer’s Environment, or Customer’s suppliers that are not maintained, operated, or controlled by Global Relay.
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 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 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 the subscribing Customer to access and use the Services in accordance with this 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 this Agreement. All rights, now and in the future, in and to the Services not expressly granted to Customer are reserved by Global Relay.
3.3. 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 payment to or ownership by Customer.
4. CUSTOMER RESPONSIBILITIES AND USE OF SERVICES
4.1. Administrative User. Customer shall appoint Administrative User(s) to be responsible for managing Customer’s Users, Accounts and Passwords, as well as communicating Customer Instructions. 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 (the "AoA 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 Administrative User 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. Customer understands and acknowledges that Global Relay is not responsible for maintaining Accounts and Passwords for Users of Customer. Customer’s Administrative User(s) will have access rights to the online Control Center to directly manage Customer's role-based access controls and use of the Services. 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 Passwords; (b) maintaining the confidentiality and security of Customer access information associated with Accounts and Passwords, or other account identifiers which Customer chooses or is assigned for its Users; (c) all activities that occur under such Accounts and Passwords 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.
4.5. Restrictions on Use. Customer shall not rent, sell, assign, lease, sublicense, transfer or otherwise encumber the Services. Customer shall not, and shall not cause or permit others to, derive or attempt to derive the source code, source files, or structure of all or any portion of the Services by reverse engineering, disassembly, de-compilation, or any other means, or otherwise modify or create derivative works from the Services. Customer shall not 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. For security purposes, Customer shall not, and shall not cause or permit others to, (a) perform social engineering, penetration, and other similar security and vulnerability testing on Global Relay’s Environment without the prior written consent of Global Relay in each case; or (b) cause or use any application to negatively impact, including overloading, spamming, obstructing, or interfering with, the stability or performance of Global Relay’s Systems or Environment. Abuse or misuse of the Services is strictly prohibited.
4.6. Acceptable Use Policy. Customer acknowledges that the Services provided to Customer pursuant to this 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
5.1. Archive Data Capture. Customer shall ensure that: (a) Global Relay is provided a complete and accurate list of all email domains and other types of electronic communications to be archived, including any updates to the same; (b) Global Relay is provided a complete and accurate list of Customer’s Users and User aliases, as applicable, including any updates to the same; (c) Global Relay is provided with any requirements regarding physical and logical segregation of Customer Data within Global Relay Archive before Provisioning commences; (d) Configuration of all electronic communications required to be archived are completed in accordance with Global Relay’s specifications; (e) all electronic communications 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 (g) it verifies that the data types and Third Party Networks (including versions and formats) it requires to be archived are in fact supported by Global Relay Archive and set out in the applicable Order Form (see http://www.globalrelay.com/support/instant-messaging for supported data types and Third Party Networks (including versions and formats), or contact Global Relay to inquire about a data type or version not listed). Customer is prohibited from delivering Third Party Networks data types which have been converted into email formats to Global Relay Archive to be captured as standard email messages without formally adding such data types to the Services through a Change Order. Global Relay reserves the right to charge a Fee for each of such Third Party Networks data type delivered as email messages. Global Relay is not responsible to Customer for any message types or Third Party Networks (including versions and formats) 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.
5.2. Monitoring Data Flow. Customer shall monitor its delivery of each data 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 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 feeds 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 NETWORKS
These additional terms in Section 6 apply where Customer is using any Services that interoperate with any Third Party Networks, or Global Relay hosted email, email continuity, or email filtering service(s) ("Email Services").
6.1. Availability of Third Party Networks. Global Relay does not control and is not responsible for any Third Party Networks. Such Third Party Networks 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 Networks. Global Relay does not and cannot warrant the availability or performance of any Third Party Networks, and Global Relay expressly disclaims any and all liability related to, connected with, or arising from Third Party Networks including any outages, delivery delays, delivery methods, corruption of data, processing failures, failure to format data in accordance with such Third Party Network’s data schema, changed or discontinued or failed services, or termination of service. Additionally, Customer is responsible to ensure its end Users only use versions of the applicable Third Party Network or Email Services clients that are expressly supported by Global Relay Services. Customer may contact Global Relay Support to confirm an updated list of supported Third Party Networks (currently listed here: http://www.globalrelay.com/support/instant-messaging). Global Relay also reserves the right to discontinue support for any Third Party Network 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 user statistics, where an end User of an Account associated with a particular Third Party Network or an Email Service has not accessed that particular Account for more than 90 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 Network or Email Services to account for such User’s inactivity. To regain access, Customer may contact Global Relay Support.
7.1. Security Procedures and Controls.
7.1.1. 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.
7.1.2. 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.
7.2. Data Security Breaches. Notwithstanding any other 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 security 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 & NON-DISCLOSURE
8.1. Protection of Confidential Information. The parties to this Agreement shall not use any Confidential Information (which term shall include Archived Data) obtained from the other party for its own benefit or for any purpose other than to fulfill its respective obligations under this 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 expressly provided in this 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.
8.2.1. Non-Disclosure. 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 this Agreement or in connection with the Services, and are bound by confidentiality obligations no less protective than those in this Agreement;
(b) to a Governmental or Regulatory Authority where disclosure is required or authorized by Applicable Law or requested or required by administrative process or proceeding ("Legal Process"); or
(c) with prior written consent of the other party.
8.2.2. 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.
8.3. Publication. 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 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.
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, including any Change Order, or otherwise under this Agreement. Unless alternative payment terms have been specified in the Order Form, Customer shall pay all undisputed Fees (a) on the invoice due date, (b) in advance, based on a quarterly Billing Cycle or an alternative Billing Cycle otherwise stated in the applicable Order Form, and (c) by pre-authorized credit card. Customer, if paying by credit card, 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 User counts related to the Services, and for notifying Global Relay of any changes to such information.
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 new data types to be archived, adding ancillary Services, additional functionality, customization of support packages, the import of Legacy Data, or other requirements of Customer that alter the original scope of the Services (but do not constitute Work under Section 2.7). Customer will execute a Change Order which sets forth the New Services subscribed for by Customer, associated costs, scope, and any additional obligations, or effects on the Services set forth 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 subscriptions during the Term, provided that Customer promptly reports any increases in User counts to Global Relay. Global Relay reserves the right to perform a reconciliation of actual usage/User count versus ordered quantities of Customer’s Service/User subscriptions under the then-current Order Form(s) ("True-up"). Upon reasonable advanced notice, Global Relay shall have the right to audit, and Customer agrees to make available, or provide access to, Customer’s internal controls and records reasonably necessary to assist with the True-up. If, as a result of any such True-up, Global Relay reasonably determines that Customer’s use of the Services has exceeded its subscription quantities, or where Customer has reported an increase in User subscriptions, Global Relay will make the pro-rated adjustments to the corresponding Fees invoiced in the subsequent invoice(s) or in a separate True-up invoice.
9.4. Subscription Minimum. During the Term, a minimum of 75% of the initial User count stated in Customer’s Order Form or the average User count over the last 12 months, whichever is higher, will be billable unless otherwise agreed in writing by the parties.
9.5. Fee Dispute. Customer has 30 days from the invoice date to notify Global Relay in writing if there is any Fee dispute on an invoice 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 portion 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.
9.6. Non-Payment and Suspension. Any Fees due and owing by Customer (excluding the portion disputed in good faith) under this Agreement that are not received by Global Relay within 30 days of the invoice due date may be subject to a late fee of one and one half percent per month, as calculated from the invoice due date until the date payment is received by Global Relay. Such non-payment constitutes a material default by Customer, and Global Relay may suspend Customer's Services until the overdue amount are paid in full plus a $200.00 reactivation fee. Such suspension will be effected in accordance with the notice requirements and procedures of Section 13.2. 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.
9.7. Price Adjustments. After the Initial Term, 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. In addition, Prices are subject to change on renewal, upon written Notice to Customer by the end of the then-current term. Unless otherwise agreed in writing by the parties, continued use of the Services by Customer for 15 days past the renewal constitutes acceptance by Customer of any Price changes for the Services for the Renewal Term.
9.8. Taxes of Customer. Fees and any other charges under this Agreement do not include any local, provincial, state, federal, or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes assessable by any jurisdiction ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Global Relay's net income. 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
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 NETWORKS AND 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, 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 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, OR THAT THE SERVICES ARE ERROR-FREE. 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 LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE SUFFICIENT FOR CUSTOMER’S PURPOSES WITH RESPECT TO CUSTOMER’S REQUIREMENTS UNDER APPLICABLE LAWS. 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 ENVIRONMENT, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. 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 THIS AGREEMENT.
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, actions, suits, demands, proceedings brought by third parties (collectively "Claims") and any related damages, losses, liabilities, obligations, judgments, awards, costs or expenses, including reasonable legal fees (collectively "Damages"), to the extent connected with, arising out of, or related to Customer's: (a) negligence or misuse of the Services, (b) breach of this Agreement, or (c) use of Third Party Networks or combination of the Services with other products, processes, or material not provided 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. Exclusion of Damages. 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 special, direct, indirect, incidental, consequential, punitive damages, or loss of use, loss of production, loss of data, 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 related 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 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 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 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 be limited to proven direct damages caused by the party in an amount not to exceed the amount of Fees Customer has paid to Global Relay under this 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 this Agreement would be substantially different. No action, regardless of form, relating to this Agreement or the Services may be brought by either Party more than two years after the cause of action has accrued under Applicable Laws.
12.3. Mitigation. Each party will have a duty to mitigate damages for which the other party is responsible.
13. TERM, SUSPENSION, AND TERMINATION
13.1. Term. This Agreement will commence on the Effective Date. This 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. The Order Form sets out the initial Term for the Services (the "Initial Term"). At the expiry of the Initial Term, the Order Form (including any applicable Change Orders, which shall be coterminous) shall, subject to Section 9.7 (Price Adjustments), be automatically renewed annually for additional one year terms (each a "Renewal Term"), unless terminated by written Notice by either party at least 90 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 Order Form. In the event Customer continues to use the Services beyond the expiry of any Trial Period, the Term, or after a termination date (as applicable), then, without notice to the contrary, the terms of the most recent Order Form together with any True-ups and any subsequent Change Orders will be deemed to have been accepted or continued (as applicable).
13.2. 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, but only 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 (a) such breach, default or violation, or (b) non-payment pursuant to Section 9.6. Customer shall 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 effected in accordance with this Section 13.2, and the Fees will continue to apply and accrue during any such suspension.
13.3. Termination. Subject to the provisions of this Section 13 and proper Notice pursuant to Section 14.4 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, 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:
13.3.1. Termination by Customer. Customer may terminate this Agreement (a) at the expiry of the Term in accordance with the Notice requirement of Section 13.1; (b) for cause 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; or (c) in the case where there is not a governing Order Form, Customer may terminate this Agreement upon 120 days’ Notice. For termination under subsection 13.3.1(b), Customer will not be charged for Fees owed by Customer for the remainder of the Term due after the date of termination and a prorated 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 incurred for the period prior to the effective date of termination.
13.3.2. Termination by Global Relay. Global Relay may terminate this Agreement (a) at the expiry of the Term in accordance with the Notice requirement of Section 13.1; (b) for cause where Customer has been suspended pursuant to Section 13.2 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 the suspension or Customer's receipt of written Notice of the breach or default (as applicable); or (c) 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 13.3.2(b), 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.
13.3.3. Termination on Bankruptcy. A party may terminate this Agreement for cause (a) 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 (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, 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 forth in the Order Form will continue to apply.
13.3.4. Transition Assistance Services. Provided Customer’s Fees for the Services have been paid in full for the Term, then for such period as Customer may reasonably require, and up to a maximum of 12 months after the effective date of termination of this Agreement (the "Transition Assistance Period"), Global Relay may agree to provide the following transition assistance services (the "Transition Assistance Services"): (a) continue to preserve the Archived Data in accordance with this Agreement for the Fees as set forth in the applicable Order Form, or otherwise at Global Relay’s standard rates; (b) assist with the export or disposition of Archived Data pursuant to Section 13.4; and (c) perform the transition tasks reasonably requested by Customer for the Fees as set forth in the applicable Order Form, or otherwise at Global Relay’s standard time and materials rates. During the Transition Assistance Period, either party may terminate the Transition Assistance Services on 60 days written Notice to the other.
13.4. Return or Disposition of Archived Data. At any time during the Term or the Transition Assistance Period, upon mutual written agreement of the parties, Customer may:
(a) request the export of a copy of its Archived Data stored by Customer in Global Relay Archive, for a Fee as set forth 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, in addition to any Professional Services rendered;
(b) engage Global Relay to preserve a Static Archive of existing Archived Data with online access for Administrative Users, for a Fee as set forth in the applicable Order Form, or otherwise at Global Relay’s standard rates, based on the amount of Archived Data, in addition to any Professional Services rendered. A new Order Form, as applicable, 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; or
(c) direct Global Relay to permanently delete and dispose the Archived Data (and if so directed, to provide written confirmation to Customer that the Archived Data has been properly disposed of). Professional Services Fees may apply.
In accordance with Global Relay policy, Archived Data will not be deleted until Global Relay receives express written direction from Customer. Notwithstanding the foregoing, 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 13.4 (a) or (b) respectively before the expiry of (i) the Transition Assistance Period, or (ii) where there has been no Transition Assistance Period, 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. Global Relay will provide at least 45 days’ Notice before any such final disposition of Archived Data.
13.5. Survival. The following will survive the termination of this Agreement: Section 3 (Proprietary Rights), 8 (Confidentiality and Non-Disclosure), 10 (Warranties and Disclaimers), 11 (Release), 12 (Limitation of Liability), this Section 13 (Term, Suspension and Termination), Sections 14.4 (Notices and Communications), 14.8 (Governing Law), 14.9 (Dispute Resolution), 14.11 (Non-Solicitation), and any other provisions of this Agreement that by their nature should survive termination of this 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 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 unless otherwise specifically indicated. No third party beneficiary relationships are created by 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.
14.2. 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.
14.3. Enurement. This Agreement will enure to the benefit of and is binding upon the parties to this 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 this Agreement shall be in writing and shall be deemed to have been given when delivered (with proof of successful delivery) via: (a) email (with confirmation of receipt), (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
220 Cambie St., 2nd Floor, Vancouver, BC V6B 2M9, Canada,
General Phone: 604.484.6630
To Customer: the address set forth on the initial page of this Agreement.
14.5. Force Majeure. Neither party shall be liable nor have the right to terminate for any failure to perform any of its obligations under this Agreement during any period in which such failure to perform arises directly or indirectly out of a Force Majeure event, provided that the party so delayed promptly notifies the other party of such delay in writing and uses its commercially reasonable efforts to minimize the adverse effect of such events.
14.6. Entire Agreement.
14.6.1. Entire Agreement. This Agreement is comprised of the Master Terms of Service, including any amendments, applicable Order Form(s), and the most current edition of all schedules or policies referred to in this 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 or oral, relative to this subject matter.
14.6.2. Order of Priority. Any conflict or inconsistency in the interpretation of this Agreement shall be resolved by giving precedence according to the following order of priority: (1) the Master Terms of Service, (2) the applicable Order Form(s) with the most recent prevailing, and (3) any applicable Schedules or the Policies listed in Section 14.6.4, unless the Schedule or Policy specifically states that any part of it takes precedence over the provision of the Master Terms of Service. The parties agree that any other term or condition contained in Customer’s purchase order or in any other form or documentation of Customer (excluding Order Forms under this Agreement) is void.
14.6.3. Definitions & Interpretation. In this Agreement, all capitalized terms, unless specifically defined herein, have the meanings contained in the Standard Definitions (located here and at: https://www.globalrelay.com/policies/standard-definitions, incorporated by reference in Schedule A) to this Agreement. Any conflict or inconsistency between the Standard Definitions and the terms specifically defined in this Agreement (without reference to Schedule A), the parties intend for the definitions contained in this Agreement to prevail over the Standard Definitions. The word "including", "include" and "includes" shall be interpreted to be mean including/include/includes without limitation unless the context otherwise requires.
14.6.4. Schedules. As of the Effective Date, the following Schedule(s) are incorporated herein by reference and deemed to be a part of this Agreement:
Schedule A Standard Definitions
14.7. 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.
14.8. 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 the 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.
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 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 13.2 or the right of either party to enforce this Agreement.
14.10. Currency. All amounts, Prices and Fees are in United States Dollars (USD), unless otherwise indicated.
14.11. Non-Solicitation. During the Term of this 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 and AoA Forms, incorporating by reference these Master Terms of Service, will be executed online by Customer via EchoSign (a digital document service) unless otherwise agreed to be executed by an 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.
- 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.