Soulpepper Hosting Terms and Conditions
- By clicking through these terms, or signing the Order to which they are attached, you are entering into an agreement with Soulpepper Digital Ltd to provide Services to you. That agreement between us is comprised of these Terms of Service and the Order to which they are attached or by which they are referenced, and any other terms, exhibits, schedules, or addenda which are referenced by any of the preceding (collectively the “Agreement”). The Agreement sets forth the exclusive terms and conditions between the Parties and supersedes all previous proposals, agreements, negotiations, and other written or oral communications between the Parties with respect to the Services provided hereunder.
- If there is a conflict between the terms of the Agreement, the terms shall govern according to the following order of precedence: 1) the Order, 2) these Terms of Service, and 3) any terms incorporated by reference by either of the above. The substantive terms contained in your purchase order, order confirmation, notice of receipt, vendor registration portal, or any other transactional document, form, or notice provided by you shall be void and without effect, even where your customary business practices require a showing of assent to such terms by us such as by signature or reference in an invoice.
- We may update these Terms of Service from time to time in our sole discretion; the current version may be found at https://www.soulpepper.com/hosting-terms-and-conditions . In the event of any material change, we will provide you with written notice. Your continued use of the Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate the Agreement in accordance with the Termination section below.
- We will provide the Services in accordance with the terms of the Agreement. You acknowledge that we may engage third parties to provide or enable elements of the Services, provided that we are responsible to you for the performance of such third parties as if we performed the Services ourselves. You shall use the Services solely for the intended purpose in accordance with the Agreement, and provide us with all information, assistance, and materials reasonably required for our ongoing provision of the Services.
- We will provide support to you through the standard means we make available to our customers (e.g. account manager, [email protected] ticket). Authorized Users seeking support must have a basic understanding of the systems and technology related to the Services.
- The scope of Services provided under the Agreement may be amended by any reasonable means showing mutual agreement between the Parties including click-through terms, email, support ticket, or your selections in the User Portal. Any associated fees will be clearly and conspicuously provided to you before you agree to any such change.
- From time to time, we may provide replacements for certain components of the Services or cease supporting them altogether. No such replacement or end of life shall constitute a breach of the Agreement.
- You agree to pay the Fees beginning on the Effective Date and according to the payment terms set out in the Order. If no payment terms are specified, Fees shall be due in full in advance, except for usage or overage fees which are invoiced monthly in arrears. If the Order sets any limit on your use of Services (such as number of visitors) and that limit is exceeded, you will be responsible for the applicable overages. You agree to pay any applicable taxes (excluding taxes on our income) which we are required to collect unless you provide us with a valid tax exemption certificate. Any applicable overages, taxes, or transfer fees will be added to the Fees. Fees applicable to any Renewal Term will be at our then-current rates, provided that we have notified you of any applicable increase prior to the date by which you may opt out of the renewal. Fees are payable in the currency specified in the Order and are not refundable except as expressly stated herein.
- You agree to the issue and acceptance of invoices in electronic format. We will invoice you immediately upon execution of the Order and on each renewal date thereafter. Invoices will be sent to the billing contact you designate in the Order Form. If you elect to pay via credit or debit card, we will charge the provided credit or debit card immediately upon account activation and on each renewal date thereafter.
- It is your responsibility to maintain accurate and up-to-date billing details and ensure the Fees are paid by the due date. If you fail to maintain accurate and up-to-date billing details, your account may be suspended until such details are provided. If you are overdue on any Fees, we may: (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, (ii) suspend provision of the Services, and (iii) terminate the Agreement in accordance with Section 5(b) below. You will be responsible for any charges associated with our collection efforts related to unpaid Fees.
- Upon expiration of the Initial Term, this Agreement will renew for successive Renewal Terms, each equal to the immediately preceding term, unless one Party notifies the other in writing of its intent not to renew no later than 30 days prior to the expiration of the then-current term.
- You may terminate the Agreement prior to the end of the Term: (i) if we materially breach the Agreement and fail to cure such breach within 10 days of your notice to us; (ii) if you provide us with at least 30 days notice; or (iii) for any other cause stated herein. We may terminate the Agreement prior to the end of the Term: (i) if you materially breach the Agreement and fail to cure such breach within 10 days of our notice to you; (ii) if we reasonably believe that your use of the Services endangers or negatively affects our network or systems, violates the law, or interferes with our ability to provide services to our other customers; (iii) if you abuse, harass, or threaten any of our employees; (iv) if we provide you with at least 30 days notice; or (v) for any other cause stated herein.
- Customer Content is and remains your exclusive property, and we claim no rights whatsoever in the Customer Content except to the extent explicitly granted herein. For the Term of the Agreement, you hereby grant to us, our affiliates, providers of Third-Party Services, and subcontractors a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Customer Content (in whole or in part) solely and strictly to the extent required to provide the Services to you under the terms of the Agreement.
- We and our licensors own and shall continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. performance data), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant any other licenses, express or implied, to any of our intellectual property including software, services, or products.
- We may solicit and you or your Authorized Users may provide feedback about the Services. If you or your Authorized Users provide feedback, you agree that such feedback is provided freely. Except to the limited extent such feedback contains any of your Confidential Information, we are free to use and disclose such feedback for any purpose without an accounting to you or any other person, and we shall own all right, title, and interest in and to such feedback along with any changes, modifications, or upgrades we make to our current products or services and any new products or services that we develop using the feedback you or your Authorized Users provide.
Each Party agrees to preserve the confidential nature of the other Party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with the Agreement, and by using the same degree of protection that it uses to protect its own similar confidential information, which in no event shall be less than reasonable care. Notwithstanding the foregoing, either Party may disclose the other Party’s Confidential Information to the limited extent such disclosure is required by law, legal process, or court order, including any requirement under applicable data privacy regulations that a notice of data breach be given to a supervisory authority or regulatory agency. Information disclosed for these reasons will not cease to be Confidential Information. To the extent practicable, a Party will provide prompt notice of any such required disclosure and shall cooperate with all reasonable efforts by the disclosing Party to minimize or exclude the Confidential Information from such disclosure. Upon termination or expiration of the Agreement for any reason, any license granted herein to use the Confidential Information shall terminate immediately, and each Party will either return or destroy any Confidential Information in its possession which belongs to the other Party, or it shall continue to protect the Confidential Information in accordance with the Agreement for as long as it is retained as part of that Party’s customary business practices. Notwithstanding any other terms to the contrary herein, each Party will have the right to seek an injunction in any court of competent jurisdiction to prevent a breach or threatened breach of this Section.
- We will maintain commercially reasonable technical and operational measures designed to protect our internal networks from malicious activity and provide for the security and integrity thereof. You acknowledge that we are not responsible for any loss or harm suffered by you resulting from a security incident. You are responsible for determining whether the Services meet applicable regulatory standards and otherwise comply with your own security requirements. You agree to configure your use of the Services in such a way as to maintain the security of the Services and our network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords).
- Should we determine that our network has been accessed in an unauthorized manner, and that unauthorized access impacts your Services, we agree to notify you as soon as reasonably practicable after we have investigated the unauthorized access and fulfilled our legal obligations. Likewise, you agree to notify us should you identify unauthorized access to the Services.
Each Party represents and warrants that (i) it has the power, authority, and legal right to enter into the Agreement and perform the obligations and grant the licenses set out herein; and (ii) it will comply with all laws and regulations applicable to its performance under the Agreement.
You agree to indemnify, defend, and hold harmless Soulpepper Digital Ltd; its affiliates, subsidiaries, and vendors; and their respective officers, directors, agents, and employees from and against any and all liabilities, obligations, losses, damages, penalties, fines, amounts in interest, and other expenses (including reasonable attorney fees) in connection with a claim or demand brought by a third party related to your violation of this agreement. We reserve the right to control the defense of any indemnified matter under this Section and approve any proposed settlement. You will pay us the amounts due under this Section as they are incurred.
- Although we may perform regular backups of your site and Customer Content (as described in the Order), we do not guarantee there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. We will provide support to you and attempt to troubleshoot any known or discovered issues that may affect your backups, but you acknowledge that we have no liability related to the integrity of your backups or the failure to successfully restore your content to a usable state. You agree to maintain a complete and accurate copy of any Customer Content in a location independent of the Services.
- Except as expressly provided in the agreement, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and soulpepper digital ltd and its licensors specifically disclaim all implied warranties including, but not limited to, any warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted or error free service, availability, accuracy, and any and all implied warranties arising from statute, course of dealing, course of performance, or usage of trade to the maximum extent permitted by applicable law. other than as expressly set out in the agreement, the services are provided as-is, as available, and with all faults.
- In no event shall our liability arising out of or related to the agreement for any reason (including, but not limited to, contract, tort, or any other theory of liability) exceed in the aggregate the amount of fees paid or owed by you to us in the 3 months preceding the claim.
- In no event shall we or our licensors have any liability for indirect, special, incidental, consequential, or punitive damages, nor any cover or lost profits, however caused, arising out of or in any way connected with the agreement whether or not we have been advised of the possibility of such damages.
- The limitations in this Section 11 do not apply to the extent prohibited by applicable law or to your payment obligations for Services provided.
- Client’s Indemnification of Company Client agrees to indemnify, defend, and the Company harmless from any claims, judgments, lawsuits, actions, damages, liability, and/or obligations (including costs and attorneys’ fees), including, without limitation, claims arising in contract or tort, arising out of or related to any breach by Client of any representation, warranty or covenant made in this Agreement. Client further agrees indemnify, defend, and hold the Company harmless from any claims, judgments, lawsuits, actions, damages, liability, and/or obligations (including costs and attorneys’ fees), including, without limitation, claims arising in contract or tort, arising out of or related to Client’s conduct of its business activities either on the internet or through traditional business channels. The Company will retain the right to review and approve any proposed settlement of claims against the Company. Subject to Client’s indemnification the Company will not unreasonably withhold its consent to such settlements in exercising the Company’s review and approval rights.
- Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first representation, warranty, or covenant.
- Modification: This Agreement cannot be changed or amended in any way unless such change or amendment is in writing and signed by Company and the Client.
- Governing Law. The construction and performance of this Agreement will be governed by the laws of the Province of British Columbia, Canada, without regard to conflicts of laws principles. Any dispute arising hereunder shall be adjudicated solely in the applicable federal or state court located in Vancouver, BC, Canada.
- Assignment. Neither party may assign this Agreement or any of such party’s rights or obligations hereunder without the other party’s written consent except upon a merger, sale of all or substantially all of the assets of a party (or the assigning party’s assets to which this Agreement pertains) or similar reorganization. This Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the parties hereto and all entities controlled by them.
- Subcontracting Either party may subcontract the performance of any of its obligations under this Agreement without the prior written consent of the other party. Where either party sub-contracts the performance of any of its obligation under this Agreement to any person with the prior consent of the other party, that party shall be responsible for every act or omission of the subcontractor as if it were an act or omission of the party itself.
- Independent Contractors. This Agreement does not create a joint venture, partnership or other business relationship or entity of any kind between the Parties, or an obligation to form any such relationship or entity. Each Party is an independent entity and not an agent of the other Party for any purpose, and neither has the authority to bind the other with any third parties.
- Complete Agreement. This Agreement represents the complete agreement between the Parties with respect to the subject matter contained in this Agreement, and this Agreement replaces and supersedes all prior written and oral agreements or statements by and among the Parties with respect to the subject matter contained in this Agreement.
- Waiver. Nothing contained in this Agreement shall cause the failure of either Party to insist upon strict compliance with any covenant, obligation, condition or agreement contained in this Agreement to operate as a waiver of, or estoppel with respect to, any such covenant, obligation, condition or agreement. Waiver by any Party of any breach of any provision of this Agreement shall not be considered as, nor constitute a continuing waiver or waiver, breach or cancellation of, any other breach of any provision of this Agreement.
- Force Majeure. Neither party will be responsible for delays resulting from causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, war, strike, or riot, provided that the non-performing party uses commercially reasonable efforts to avoid or remove such causes of non-performance and continues performance under this Agreement with reasonable dispatch whenever such causes are removed. In the event the force majeure period continues for a period of thirty days or more, the other party may terminate this Agreement immediately upon written notice to the non-performing party.