Terms & Agreements

Article 1                BACKGROUND AND DEFINITIONS

1.1          Purpose.  This Agreement sets out the terms and conditions under which E-Tech will provide the CloudBAK Services to Client and how Client may use the CloudBAK Services.

1.2          Definitions.  In this Agreement, the following definitions apply unless the context clearly indicates otherwise:

(a)            “Acceptable Use Policy” means E-Tech’s Acceptable Use Policy as modified by E-Tech from time to time, subject to section 4.2 of this Agreement.

(b)           “Business Day” means Monday to Friday, inclusive, other than a day that is observed as a statutory holiday in the Province of Ontario.

(c)            “Client Content” means all files, information, data or code that Client uploads, stores, transmits, receives or processes in connection with the CloudBAK Services.

(d)           “Help Desk” has the meaning ascribed to it in Article 2 of CloudBAK Services document.

(e)            “CloudBAK Hardware” means servers (including application and database/storage servers), networking equipment (including routers, switches, communications cabling and network connectivity cards), peripherals and other hardware installed at E-Tech’s Hosting centre, purchased, leased or otherwise acquired by and controlled by E-Tech.

(f)            “CloudBAK Services” has the meaning ascribed to it in Article 3.

(g)           “Laws” means any laws, rules or regulations, judicial decisions, administrative orders, or other decisions or enactments of the Province of Ontario or of Canada applicable therein as created or amended from time to time.

(h)           “Personal Information” means any personal information which is required to be protected pursuant to PIPEDA or any Laws pertaining to the protection of personal, healthcare or insurance information as are in effect at this time or may be in effect during the term of this Agreement. Personal Information is a subset of Confidential Information.

(i)             “PIPEDA” means the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, as amended from time to time.

(j)              “Representatives” means, in the case of E-Tech or Client, its directors, officers, employees, agents, consultants or subcontractors, and their directors, officers, employees or agents of any subcontractor.

(k)           “Term” has the meaning ascribed to it in section 2.

(l)             “Confidential Information” means all information and materials disclosed or made available by one party to the other under this Agreement that may be confidential or proprietary to, or may contain valuable trade secrets of, the disclosing party, and Confidential Information of Client includes any passwords used in connection with the CloudBAK service, all User Content and any Client Content which Customer designates as confidential.

Article 2                TERM AND TERMINATION

With the E-Tech CloudBAK 15 day trial, you may cancel or downgrade your account, free of charge, at any time up until 15 days after your account was created (the day your account is created, and not the date you first utilized the service, is considered the first day of your 15 day trial period).

Article 3                CLOUDBAK SERVICES

3.1          CloudBAK Services.  Subject to the other provisions of this Agreement, Client agrees to retain E-Tech to provide, and E-Tech agrees to provide the services described in CloudBAK Services document.

3.2          Service Level Commitment.  E-Tech will use commercially reasonable efforts to provide the CloudBAK Services, but E-Tech makes no service level commitments in this Agreement except those expressly set out in CloudBAK Services document.

3.3          End Users.  Client shall cause its end users to comply with this Agreement and is responsible for the acts and omissions of its end users as if such acts and omissions were the acts and omissions of Client.

3.4          Insurance.  Client shall maintain, at its sole cost, insurance against such risks and in such amounts that could reasonably be expected by persons acting prudently and engaged in similar activities as Client.

3.5          Additional Services.  Any additional services related to the CloudBAK Services that are requested by Client and that E-Tech in its sole discretion provides are deemed to be CloudBAK Services provided pursuant to the terms and conditions of this Agreement.  Any such CloudBAK Services will be provided at E-Tech’s rates.

Article 4                ACCEPTABLE USE

4.1          Compliance.  Client acknowledges that it has read E-Tech’s Acceptable Use Policy and agrees to comply with it. Any violation of E-Tech’s Acceptable Use Policy or any Laws by Client (or by any end user) is a material breach of this Agreement by Client and E-Tech may, in its sole discretion, restrict, suspend or terminate the CloudBAK Services, upon written notice, without an opportunity to cure notwithstanding section 2.  When exercising its rights under this section 4.1, to the extent possible, E-Tech will attempt to minimize the disruption to Client’s operations while addressing the breach.

4.2          Revisions.  E-Tech may revise its Acceptable Use Policy, from time to time, in its sole discretion, and Client agrees to abide by the Acceptable Use Policy as amended from time to time.  E-Tech will give Client notice of any such changes to the Acceptable Use Policy by e-mailing the revised policy to Client’s Primary Contact.  If the revised version of the acceptable use policy is unacceptable to Client, Client’s only recourse is to terminate this agreement  Client’s continued use of the CloudBAK Services constitutes acceptance of the change.

4.3          End Users.  Client is responsible for communicating any revisions to the E-Tech Policies to Client’s end users.

Article 5                PRIVACY AND CONFIDENTIALITY

5.1          Confidentiality.  E-Tech and Client acknowledge that Confidential Information of each party will be exchanged during the term of this Agreement and agree to be bound by the terms and conditions regarding such Confidential Information set out in the Confidentially Obligations document.

5.2          Personal Information.  Each party will comply with any Laws pertaining to the privacy protection of Personal Information to which it is subject.

5.3          Publicity.  Neither party will use the other party’s name in any publicity, publication, announcement, marketing or press release or otherwise make use of its association with the other party or this Agreement, without the other party’s written consent.  Notwithstanding the above, the Client consents to E-Tech listing Client as one of its clients on its website and for business referrals.

Article 6                PRICING AND PAYMENT

6.1          Fees.  The fees applicable to the CloudBAK Services are set out in the E-Tech CloudBAK sign up page (http://www.etechcomputing.com/e-tech-cloudbak/signup/).

6.2          15 Day Trial.   You will receive a notification of billing after the completion of your trial period and your method of payment will be charged monthly. At this point, you are no longer in the trail period.

6.3          Taxes.  Client will pay any present or future sales, HST, excise, value-added, or other similar taxes including any related interest or penalties (imposed at any time by any governmental authority) arising from or related to any transactions under this Agreement other than taxes based on E-Tech’s net income.

6.4          Late Payment.  Any payment not received on the payment date will be subject to their account being terminated within 30 days.

Article 7                WARRANTIES AND INDEMNITIES

7.1          Warranty.  E-TECH WILL PROVIDE THE CLOUDBAK SERVICES IN A PROFESSIONAL AND WORKMAN-LIKE MANNER.

7.2          Disclaimer. Client acknowledge that the CloudBAK Services may not always be available, and with the exception of any express warranties contained in this agreement, E-Tech expressly disclaims any other representations, warranties or conditions with respect to the CloudBAK Services or otherwise arising from this agreement whether express or implied, past or present, statutory or otherwise, including without limitation, any implied warranties or conditions of merchantability or fitness for a particular purpose and any warranty that the CloudBAK Services will be uninterrupted or error free.

7.3          Indemnity.  Client agrees to indemnify and hold E-Tech and its employees, agents, suppliers or subcontractors harmless from all losses, damages and expenses incurred in connection with any allegations, claims, demands and other liabilities asserted against any of them as a result of or relating to Client’s Content, Client’s use of the CloudBAK Services or any wilful misconduct of Client. E-Tech agrees to indemnify and hold Client harmless from all direct losses or damages suffered in connection with any claims or demands asserted against it as a direct result of a breach by E-Tech of its obligations under Article 5 of this Agreement.

Article 8                LIMITATION OF LIABILITY

8.1          Indirect Damages.  E-Tech (including its representatives and suppliers) shall not be liable to Client or its end users in any way whatsoever, for any indirect, punitive, incidental, special or consequential damages, including but not limited to loss of data, revenue or profit resulting from or arising in connection with this agreement or the provision or use of the CloudBAK Services.  This limitation shall apply whether or not such damages are foreseeable, or whether E-Tech has been advised of the possibility of such damages.

8.2          Exclusions.  The limitations of liability set out in this Article 8 do not apply to any claim arising from wilful misconduct of E-Tech.  Otherwise, the foregoing provisions limiting the liability shall apply regardless of the form or cause of action, whether in contract or tort (including negligence), or a breach of a fundamental term or condition or a failure of essential purpose.

8.3          Allocation of Risk.  Client and E-Tech understand and agree that, to the extent permitted by applicable law, the foregoing exclusions and limitations of liability represent the parties’ agreement as to allocation of risk between them in connection with their respective obligations under this Agreement.  The fees payable to E-Tech reflect, and are set in reliance upon, this allocation of risk and the exclusions and limitations of liability set forth in this Agreement.

Article 9                MISCELLANEOUS

9.1          Entire Agreement.  This Agreement includes the following documents: Terms and Conditions, CloudBAK Services, Acceptable Use Policy and Confidentiality Obligations. All documents incorporated herein by reference constitutes the complete agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter.  This Agreement is for the benefit of, and binding upon the parties, their successors and permitted assigns.  Unless otherwise expressly indicated, any inconsistency between the body of this Agreement and any other document shall be resolved in favour of this Agreement.

9.2          Amendment.  Except as expressly set out in herein, this Agreement may be changed only by a written document signed by authorized representatives of E-Tech and Client.

9.3          Severability.  Should any provision of this Agreement be held to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the extent permissible, and all other provisions will remain in effect and are enforceable by the parties.

9.4          Waiver.  No waiver of any part of this Agreement will be deemed to be a waiver of any other provision. No term of this Agreement will be deemed to be waived by reason of any previous failure to enforce it. No term of this Agreement may be waived except in a writing signed by the party waiving enforcement.

9.5          Assignment.  Client may not assign this Agreement, either in whole or in part, without the prior written consent of E-Tech.

9.6          Governing Law.  This Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to the conflict of laws provisions.  The parties consent to the jurisdiction of the courts of Ontario.

9.7          Independent Contractors.  The relationship between the parties is that of independent contractors, and not that of partnership, joint venture, employment, franchise or agency.  Neither party may incur any obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

9.8          Force Majeure.  Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight provided that such party gives the other party prompt notice of such cause and uses reasonable commercial efforts to correct such failure or delay in performance.

9.9          Interpretation.  No provision of this Agreement will be interpreted against any party merely because that party or its legal representative drafted the provision

Article 1              CloudBAK Environment

1.1          CloudBAK Environment.  E-Tech shall, in accordance with the terms of this Agreement:

(a)           host the CloudBAK application;

(b)           maintain and operate the CloudBAK Hardware;

(c)           monitor the CloudBAK Hardware, by way of automated tools or by routinely reviewing server and service reports to verify the condition, availability and performance of the CloudBAK Hardware and establish audit trails.

1.2          Internet.  E-Tech shall provide a high performance Internet network that connects directly to major Internet backbones in North America.

Article 2              Support

Help Desk.  E-Tech will establish a help desk (the “Help Desk”) to provide technical support and assistance relating to the CloudBAK Services.  The Help Desk will operate on Business Days from 08:00 hours to 20:00 hours (8:00 a.m. to 8:00 p.m. EST). E-Tech offers an easy to use web interface for managing and tracking technical support problems -  http://www.etechcomputing.com/support; email and web-based support is available during non-business hours.

Article 3              Availability

3.1          Availability.  The CloudBAK Services are “available” if the:  (a) the network connection between the CloudBAK Hardware and E-Tech’s Internet connection is operational; and (b) the CloudBAK Hardware is operational.

3.2          Measure:  E-Tech will use commercially reasonable efforts to ensure that the CloudBAK Services will be available other than for scheduled maintenance at least 99.9% of the time, measured monthly.

1. Both parties recognize that the protection of the Confidential Information (as defined below) by the receiving party (the “Recipient”) is of vital importance to the party disclosing that information (the “Disclosing Party”).
2. “Confidential Information” means any and all information and materials, which:  (i) are designated in writing, as confidential at the time of disclosure; (ii) if disclosed orally or visually, are designated in writing, as confidential, within thirty (30) days of disclosure; or (iii) a reasonable person, having regard to the circumstances and the information, would regard as confidential.
3. Confidential Information does not include information which:

(a)      is or at any time becomes in the public domain other than by a breach of this Agreement or breach of any agreement between the Disclosing Party and a third party;

(b)     is known to the Recipient (as substantiated by cogent and reliable written evidence in the Recipient’s position) free of any restrictions at the time of disclosure;

(c)      is independently developed by the Recipient through individuals who have not had either direct or indirect access to the Disclosing Party’s Confidential Information; and

(d)     is disclosed to the Recipient by a third party who had a right to make such disclosure.

The above listed exceptions do not apply in the case of Confidential Information that is also Personal Information.

1. Neither party shall be liable for disclosure of Confidential Information if disclosure is required by any law applicable in the Province of Ontario, provided that the Recipient, to the extent permitted by law, notifies the Disclosing Party of any such requirement as soon as legally permissible, so that the Disclosing Party may seek a protective order or other relief.
2. As between the Disclosing Party and the Recipient, the Disclosing Party is the owner of its Confidential Information, and except to the extent set out in this Agreement, no interest, license or other right in or to the Confidential Information is granted to the Recipient or implied simply by the disclosure of the Confidential Information.
3. EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THIS AGREEMENT:

(a)      ALL CONFIDENTIAL INFORMATION PROVIDED BY A DISCLOSING PARTY IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND.

(b)     WITHOUT LIMITING SECTION 6(a), THE DISCLOSING PARTY EXPRESSLY EXCLUDES THE FOLLOWING REPRESENTATIONS, CONDITIONS AND WARRANTIES WITH RESPECT TO ITS CONFIDENTIAL INFORMATION:  ACCURACY, COMPLETENESS OR NON-INFRINGEMENT OF TRADE-MARKS, PATENTS, COPYRIGHTS OR ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PERSONS.

1. The Recipient will:

(a)      use the Disclosing Party’s Confidential Information only in accordance with this Agreement and only for the purpose of fulfilling its obligations and exercising its rights under this Agreement and will not use, manipulate or exploit the Disclosing Party’s Confidential Information in any other manner;

(b)     use the same degree of care to protect the Disclosing Party’s Confidential Information as the Recipient would use to protect its own Confidential Information of a like nature and in any event using a standard no less than a reasonable degree of care;

(c)      disclose the Disclosing Party’s Confidential Information only to the Recipient’s employees, subcontractors or agents who have a need to know and are bound by a written contract to keep the Confidential Information of third parties confidential at least to the same extent as set forth in this Agreement;

(d)     not make copies of the Disclosing Party’s Confidential Information or modify it other than as expressly permitted under this Agreement; and

(e)      notify the Disclosing Party immediately upon becoming aware of any unauthorized copying, disclosure or use of the Confidential Information by the Recipient or by any employees, subcontractors or agents to whom the Recipient has disclosed Confidential Information pursuant to this Agreement and make a commercially reasonable effort to minimize the effect of any such use or disclosure.

1. The parties acknowledge that the Confidential Information (including but not limited to the copyright, proprietary rights, and/or trade secret interests that are embodied in the Confidential Information) of the Disclosing Party is of value to the Disclosing Party and that disclosure or unauthorized use of that Confidential Information by the Recipient will cause irreparable injury to the Disclosing Party.  Consequently, the Recipient agrees that in addition to any other remedies that the Disclosing Party may have, the Disclosing Party will be entitled to seek injunctive and other equitable relief, as a matter of right, to prevent the breach or the further breach this Agreement.
2. Upon expiration or termination of this Agreement or at the Disclosing Party’s request, the Recipient will:  (i) return all Confidential Information disclosed to it by the Disclosing Party and all copies thereof, regardless of form; (ii) destroy any such Confidential Information that cannot be returned; and (ii) furnish to Disclosing Party, as soon as reasonably practicable, a certificate signed by an executive of Recipient attesting to such return or destruction.  Notwithstanding the foregoing in this section 9:

(a)      E-Tech may retain any back-up tapes produced in conjunction with the Services until such time as they are scheduled to be destroyed in conjunction with E-Tech’s policies and procedures with respect to the retention of back-ups.

(b)     Either party may retain any Confidential Information of the other party that it is required to keep pursuant to any Laws, for so long as it is required to do so.