1. Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of MissingTooth Designs
credit approval requirements; MissingTooth Designs agrees to provide the maintenance and/or hosting services
described in the Order for the fees stated in the Order.
2. Term
The initial service term of the Agreement shall begin on the date that MissingTooth Designs generates an
e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement
Date") and shall continue for the number of months stated in the Order (the "Initial Term").
Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of
the same length as the Initial Term (each "Renewal Term") unless MissingTooth Designs or Customer
provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of
the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be
referred to collectively in this Agreement as the "Term."
3. Payments
- Fees
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be
monthly, annually or as indicated on the Order, beginning on the Service Commencement Date. MissingTooth
Designs may require payment for the first billing cycle before beginning service. If the Order provides
for PayPal billing, Customer authorizes MissingTooth Designs to bill subsequent fees to the PayPal
account on or after the first day of each successive billing cycle during the Term of this Agreement;
otherwise MissingTooth Designs will invoice Customer via electronic mail to the Primary Customer Contact
listed on the Order. Invoiced fees may be issued on the or before the 30 days of each billing cycle, and
the fees shall be due on the 30th day following invoice date, but in no event earlier than the first day
of each billing cycle.
Payments must be made in Canadian dollars. Customer is responsible for providing MissingTooth Designs
with changes to billing information (such as PayPal account, change in billing address). At its option,
MissingTooth Designs may accrue charges to be made to a PayPal account until such charges exceed $10.00.
MissingTooth Designs may charge interest on overdue amounts at 5.0% per month or the maximum non-usurious
rate under applicable law. MissingTooth Designs may suspend the service without notice if payment for the
service is overdue. Fees not disputed within thirty (30) days of due date are conclusively deemed
accurate. Customer agrees to pay MissingTooth Designs reasonable reinstatement fee following a suspension
of service for non-payment, and to pay MissingTooth Designs reasonable costs of collection of overdue
amounts, including collection agency fees, attorney fees and court costs.
- Fee Increases
MissingTooth Designs may increase its fees for services effective the first day of a Renewal Term by
giving notice to Customer of the new fees at least thirty (30) days prior to the beginning of the Renewal
Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer
shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms
(unless the fees are increased in the same manner for a subsequent Renewal Term).
- Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay
the fee for the entire Initial Term, or Renewal Term, as applicable. In the event MissingTooth Designs
terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9
(Termination), or Customer terminates the service other than in accordance with Section 9 (Termination)
for MissingTooth Designs breach, the unpaid fees for each billing cycle remaining in the Initial Term or
then-current Renewal Term, as applicable, are due on the business day following termination of the
Agreement.
4. Law/AUP
Customer agrees to use the service in compliance with applicable law and MissingTooth Designs Acceptable Use
Policy posted at http://www.missingtooth.net/aup.asp
(the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that
MissingTooth Designs may, in its reasonable commercial judgment consistent with industry standards, amend the
AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use
of the Services. Amendments to the AUP are effective on the earlier of MissingTooth Designs notice to
Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the
amendment. Customer agrees to cooperate with MissingTooth Designs reasonable investigation of any suspected
violation of the AUP. In the event of a dispute between MissingTooth Designs and Customer regarding the
interpretation of the AUP, MissingTooth Designs commercially reasonable interpretation of the AUP shall
govern.
5. Customer Information
Customer represents and warrants to MissingTooth Designs that the information he, she or it has provided and
will provide to MissingTooth Designs for purposes of establishing and maintaining the service is accurate. If
Customer is an individual, Customer represents and warrants to MissingTooth Designs that he or she is at
least 18 years of age. MissingTooth Designs may rely on the instructions of the person listed as the Primary
Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice
changing the Primary Customer Contract.
6. Indemnification
Customer agrees to indemnify and hold harmless MissingTooth Designs, MissingTooth Designs' affiliates, and
each of their respective officers, directors, agents, and employees from and against any and all claims,
demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest,
expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by
a third party under any theory of legal liability arising out of or related to the actual or alleged use of
Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log
on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
MissingTooth Designs DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR
COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW MissingTooth Designs DISCLAIMS ANY AND ALL
WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS"
BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE
OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR
SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF
MissingTooth Designs AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING
BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE
AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination
- Suspension of Service
Customer agrees that MissingTooth Designs may suspend services to Customer without notice and without
liability if:
- MissingTooth Designs reasonably believes that the services are being used in violation of the AUP;
- Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP;
- MissingTooth Designs reasonably believes that the suspension of service is necessary to protect its network or its other customers, or
- as requested by a law enforcement or regulatory agency. Customer shall pay MissingTooth Designs a reasonable reinstatement fee if service
is reinstituted following a suspension of service under this subsection.
- Termination
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal
Term without further notice and without liability if MissingTooth Designs fails in a material way to
provide the service in accordance with the terms of the Agreement and does not cure the failure within
ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may
be terminated by MissingTooth Designs prior to the expiration of the Initial Term or any Renewal Term
without further notice and without liability as follows:
- upon ten (10) days notice if Customer is overdue on the payment of any amount due under the
Agreement;
- Customer materially violates any other provision of the Agreement, including the AUP, and fails to
cure the violation within thirty (30) days of a written notice from MissingTooth Designs describing the
violation in reasonable detail;
- upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP
more than once, or
- upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement.
Either party may terminate this agreement upon ten (10) days advance notice if the other party admits
insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar
protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a
substantial portion of its assets, or enters into an agreement for the extension or readjustment of all
or substantially all of its obligations.
10. Requests for Customer Information
Customer agrees that MissingTooth Designs may, without notice to Customer,
- report to the appropriate authorities any conduct by Customer or any of Customer's customers or end
users that MissingTooth Designs believes violates applicable law, and
- provide any information that it has about Customer or any of its customers or end users in response
to a formal or informal request from a law enforcement or regulatory agency or in response to a formal
request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by MissingTooth Designs notwithstanding any
agreement by MissingTooth Designs to provide back up services.
12. Changes to MissingTooth Designs' Network
Upgrades and other changes in MissingTooth Designs' network, including, but not limited to changes in its
software, hardware, and service providers, may affect the display or operation of Customer's hosted content
and/or applications. MissingTooth Designs reserves the right to change its network in its commercially
reasonable discretion, and MissingTooth Designs shall not be liable for any resulting harm to Customer.
13. Notices
Notices to MissingTooth Designs under the Agreement shall be given via electronic mail to the e-mail address
posted for customer support on http://www.missingtooth.net. Notices
to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on
the Order. Notices are deemed received on the day transmitted. Customer may change his, her or its notice
address by a notice given in accordance with this Section.
14. Force Majeure
MissingTooth Designs shall not be in default of any obligation under the Agreement if the failure to perform
the obligation is due to any event beyond MissingTooth Designs' control, including, without limitation,
significant failure of a portion of the power grid, significant failure of the Internet, natural disaster,
war, riot, insurrection, epidemic, strikes or other organized labour action, terrorist activity, or other
events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the Province of British Columbia, exclusive of its choice of
law principles, and the laws of Canada, as applicable. The Agreement shall not be governed by the United
Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR
RELATING TO THE AGREEMENT SHALL BE THE PROVINCIAL AND FEDERAL COURTS IN VICTORIA, BRITISH COLUMBIA, AND EACH
PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. Miscellaneous
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its
trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither
party may use the other party's name or trade mark without the other party's prior written consent. The
parties intend for their relationship to be that of independent contractors and not a partnership, joint
venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party
acknowledges that it has no power or authority to bind the other on any agreement and that it will not
represent to any person that it has such power or authority. This Agreement may be amended only by a formal
written agreement signed by both parties. The terms on Customer's purchase order or other business forms are
not binding on MissingTooth Designs unless they are expressly incorporated into a formal written agreement
signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be
deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement.
A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with
respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in
the Agreement are not part of the Agreement, but are for the convenience of the parties. The following
provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions
limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these
miscellaneous provisions, and other provisions that by their nature are intended to survive termination of
the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of
resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without
MissingTooth Designs' prior written consent. MissingTooth Designs' approval for assignment is contingent on
the assignee meeting MissingTooth Designs' credit approval criteria. MissingTooth Designs may assign the
Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the
parties regarding its subject matter and supersedes and replaces any prior understanding or communication,
written or oral.
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