Terms and Conditions
Date of Last Revision: March 19, 2015
1. Definitions; Rules Of Interpretation
1.1 Definitions. In these Standard Terms, unless the context otherwise expressly requires, terms used without definition shall have the same meanings ascribed thereto in the Channel Partner Agreement. The following terms shall have the meanings indicated:
- “Business Centre” is the individual branded white label business center instance made available for each of the Channel Partner Customers.
- “Business Day” means any day other than a Saturday or a Sunday or a day which is a statutory holiday in Saskatoon, Saskatchewan.
- “CASL” means An Act to promote the efficiency and adaptability of the Canadian economy by
regulating certain activities that discourage reliance on electronic means of carrying out
commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Canada).
- “Channel Partner” means the reseller offering our Platform and Solutions to its customers pursuant to these Standard Terms and the Channel Partner Agreement.
- “Channel Partner Agreement” means the channel partner agreement entered into between Vendasta and the reseller offering our Platform and Solutions to its Customers, which agreement incorporates by reference these Standard Terms.
- “Claim” has the meaning set forth in Section 8 of these Standard Terms.
- “Confidential Information” means technical and business information, programming, software code, trade secrets, marketing strategies, software, documentation, financial information and any other information of a Party which in the circumstances
of its disclosure could reasonably be viewed as confidential to the disclosing Party. Confidential Information of a Party shall not include information that: (a) is or becomes a part of the public domain through no act or omission of a receiving Party;
(b) was in a receiving Party’s lawful possession prior to the disclosure and had not been obtained by a receiving Party either directly or indirectly from a disclosing Party; (c) is lawfully disclosed to a receiving Party by a third party without restriction on disclosure; (d) is Customer data; or (e) is independently developed by a receiving Party, without reference to Confidential Information of a disclosing Party, provided that the foregoing shall not be deemed to permit use or disclosure of information in breach of applicable law.
- “Customer” means an individual or legal entity that obtains the Solutions from the Channel Partner.
- “Data” means any information provided by Vendasta through its Software including but not limited to business information, Name, Address, Phone number, other business information, and on-line reviews, social comments and information obtained by Vendasta through various agreements and sources.
- “Documentation” means works of authorship that Vendasta makes generally available for Customer use with the Solutions and that comprises either (i) instructions for a Solution’s use, or (ii) descriptions of a Solution’s operational and/or design characteristics.
- “Effective Date” means the date of the applicable Channel Partner Agreement as indicated on the first page thereof.
- “Eligible Credit Period” has the meaning set forth in Section 2.3 of these Standard Terms.
- “Indemnifying Party” has the meaning set forth in Section 8 of these Standard Terms.
- “Marks” has the meaning set forth in Section entitled “Trademarks” of the Channel Partner Agreement.
- “Parties” means Vendasta and the Channel Partner.
- “Primary Function” means an essential function of the Vendasta Solution.
- “Resellers” has the meaning set forth in the recitals to the Channel Partner Agreement.
- “Scheduled Maintenance” has the meaning set forth in Section 2.2 of these Standard Terms.
- “Secondary Function” means a function that does not represent an essential function of a Solution (e.g. problem accessing user interface, data feed delay/accuracy/completeness of feed).
- “Service Credit” has the meaning set forth in Section 2.3 of these Standard Terms.
- “SMB” has the meaning set forth in the recitals to the Channel Partner Agreement.
- “Solutions” has the meaning set forth in the recitals to the Channel Partner Agreement.
- “Standard Terms” means these standard terms and conditions forming a part of the Channel Partner Agreement.
- “Tier 1 Support” has the meaning set forth in Section 3.1 of these Standard Terms.
- “Tier 2 Support” has the meaning set forth in Section 3.1 of these Standard Terms.
- “Workaround” means a feasible change in operating procedures whereby an end-user can avoid the deleterious effects of a non-conformance without material inconvenience.
1.2 Rules of Interpretation. In these Standard Terms and the Channel Partner Agreement:
- Currency – Unless otherwise specified, all references to money amounts are to the lawful currency (of the United States (“USD”) or Canada (“CAD”) set out in the Fee Schedule.
- Headings – Headings of articles and sections are inserted for convenience of reference only and do not affect the construction or interpretation of these Standard Terms and the Channel PartnerAgreement.
- Including – Where the word “including” or “includes” is used in these Standard Terms and the Channel Agreement, it means “including (or includes) without limitation”.
- Number and Gender – Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
- Severability – If, in any jurisdiction, any provision of these Standard Terms and the Channel Partner Agreement or its application to any party or circumstance is restricted, prohibited or unenforceable, such provision is, as to such jurisdiction, ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provisions of these Standard Terms and the Channel Partner Agreement and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to the other Party or circumstances.
- Statutory references – A reference to a statute includes all regulations made pursuant to such statute and, unless otherwise specified, the provisions of any statute or regulation that amends, supplements or supersedes any such statute or any such regulation.
- Time – Time is of the essence in the performance of the Parties’ respective obligations.
- Time Periods – Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done are calculated by excluding the day on which the period commences and including the day on which the period ends and by
extending the period to the following Business Day if the last day of the period is not a Business Day.
2. Service Levels
The Parties agree to the following service level standards:
2.1 Availability Uptime & Downtime. Vendasta shall ensure that all material elements of the Solutions as contemplated by the Agreement are available 99.8% of the time per calendar month, excluding downtime resulting from any of the following downtime exceptions: (a) Scheduled Maintenance; (b) any problem with any system or technology not reasonably in Vendasta’s control or foreseeable by Vendasta, including without limitation, any problem associated with a user or end-user ISP, the Internet, or third-party service provider; (c) force majeure as described in Section 12 of the Standard Terms, or acts of any governmental body; (d) Channel Partner’s or a Customer’s negligent acts or omissions (or negligent acts or omissions of others engaged or authorized by Channel Partner); (e) DNS propagation; (f) browser or DNS caching that may make the Solutions appear inaccessible when others can still access them; (g) misuse of the Solutions by Channel Partner or a Customer, or any use of the Solutions by Channel Partner or a Customer that is not in accordance with this Agreement or the agreement between the Channel Partner and the Customer; and (h) failure by Channel Partner or a Customer to provide a suitable use environment for all or any part of the Solutions. Availability is defined as the ability of a Customer to connect to and utilize a Solution. If a Solution is functioning in some areas and not functioning in others, the time of any such diminished functioning is not considered downtime and is excluded from the calculations of availability.
2.2 Scheduled Maintenance. “Scheduled Maintenance” is routine maintenance and requires two (2) business days’ written note. Vendasta reserves the right to schedule emergency maintenance windows with five (5) business hours’ written notice to Channel Partner and regular maintenance windows every Monday through Thursday between 3 am and 8 am EST. Channel Partner agrees to provide primary and back up contacts for receipt of notices regarding maintenance events. The total period of time for Scheduled Maintenance per calendar month will not exceed eight (8) business hours. A single Scheduled Maintenance window will not exceed four (4) business hours in length.
2.3 Service Credits. If Vendasta fails to maintain aggregate solution availability as set forth in Section 2.1 above (or experiences a system flaw which results in the incorrect delivery of Solutions), Channel Partner will be entitled to receive a credit (the “Service Credit”) equal to five percent (5%) of the total amount owed by Channel Partner for the Eligible Credit Period. The “Eligible Credit Period” is a single month, and refers to the monthly billing cycle in which the applicable service unavailability event occurred or as otherwise agreed to by the Parties. Channel Partner will be responsible for submitting a claim for entitled credits within 30 days of an applicable unavailability event.
2.4 Technical Support – Issue Escalation. Vendasta will provide Channel Partner with access to an escalation path for reporting of a failure of service levels and/or functionality of the Solutions and triage instructions to be used in the implementation process and resolution. Upon receipt of an issue, Vendasta and Channel Partner will collectively determine the nature of the problem, set the relative priority and open a trouble ticket to initiate the problem resolution process in accordance with the procedure outlined below.
2.5 Technical Support – Escalation Procedures. In the event the availability or the functionality of the Solutions is affected due to a software problem or outage the following escalation procedures apply:
- Channel Partner representatives should contact Vendasta through its online support services at http://support.vendasta.com or via email at email@example.com.
- Severity of problems will be classified according to the following descriptions and administered by Vendasta support group as part of their problem management process.
- Severity Level 1 (High) – A problem for which there is no known Workaround and which (a) prevents the execution of a Primary Function, or (b) results in data corruption or crash.
- Severity Level 2 (Medium) – A problem which (a) causes difficulty in execution of a Primary Function or (b) prevents the execution of a Secondary Function, and as to any of the preceding, for which there is no known Workaround.
- Severity Level 3 (Low) – A problem which causes difficulty in execution of a Secondary Function, but for which there is a Workaround.
- Vendasta shall meet the following problem resolution standards:
- High (Severity Level 1): Problems categorized under High Priority should be resolved in <24 hours.
- Medium (Severity Level 2): Problems categorized under Medium Priority should be resolved in <48 business hours.
- Low (Severity Level 3): Problems categorized under Low Priority will have resolutions that will be implemented on a time frame negotiated with Channel Partner.
2.6 Monitoring & Support.
- Vendasta shall monitor the Solutions during its normal working business hours, which are 10:00 a.m. to 6:00 p.m. EST. Channel Partner will have after hours support from assigned Vendasta account manager(s) for critical issues, which can be logged on the Vendasta website.
- Solution availability will be monitored by Vendasta personnel and, if requested, they shall provide monthly documentation detailing outages and Solution availability to Channel Partner within five (5) Business Days of such request.
- If Vendasta becomes aware of possible problems that will likely result in a material delay in the implementation or delivery of the Solutions, Vendasta shall promptly notify Channel Partner’s designated representative by telephone and email, giving the cause and probable effect of such delay, and shall rectify any issues in accordance with these Service Level standards.
- Prior to releasing new code, Vendasta will verify that the new code will not negatively impact the existing integrations. Vendasta shall notify Customer at least two (2) week before any code release that may impact the delivery schedule and data integrity of the Solutions.
2.7 Data Back-up; Continuity Management.
- Vendasta will back up data provided or collected as a result of the Solutions on a daily basis after each available calendar day. Vendasta will store copies of data backups at a secure third party contracted offsite location and may store or back-up data in a cloud based infrastructure. Access to these backups will be limited to authorized personnel as defined by
- If Vendasta determines it cannot continue to operate the Solutions due to catastrophic events, it will undertake reasonable commercial efforts to reinstate availability as soon as possible in accordance with Vendasta’s
disaster recovery procedures.
- Vendasta shall have an adequately tested continuity plan in place which identifies critical IT resources in case of a catastrophic event within or around the geographic location of
Vendasta’s main IT source, allowing a return to functionality which complies with these service level standards within one (1) day.
- In the event that a system failure should result in the loss of data that is unrecoverable, resulting in an inability to provide Solutions for any period greater than one (1) hour, for the purpose of these service level standards, the system failure will be categorized as a failure to maintain Availability for the purpose of Service Credits.
2.8 Channel Partner Cooperation. Channel Partner shall provide Vendasta with reasonable access to individuals designated to Vendasta in writing to duplicate and resolve errors in the Solutions. Channel Partner and shall endeavor to document and promptly report all errors or malfunctions in the Solutions. Channel Partner shall endeavor to carry out procedures to rectify errors or malfunctions in the Solutions within a reasonable time after such procedures
have been received from Vendasta, except where such procedures require Channel Partner to expend any cost or expense.
2.9 Change to Service Levels. Service levels shall be reviewed periodically. Service levels shall not be modified, nor shall any breach hereunder be waived, unless such modification and/or waiver is in writing. No course of dealings between the Parties shall be construed as a waiver of any subsequent breach or a modification hereof.
3.1 Channel Partner will be responsible for providing the first line of support for all Customers (“Tier 1 Support”). Where Channel Partner support staff is unable to resolve technical issues,
Vendasta will provide support to Channel Partner staff (“Tier 2 Support”). Where required, Channel Partner will provide Customer contact details and authorize Vendasta to contact the Customer directly.
4. Technical Integration & Data Usage
4.1 Vendasta will provide technical integration for the Solutions as set forth within the documentation appearing and as modified and updated from time to time on its web site, currently www.Vendasta.com.
Vendasta provides either through its Platform or via API’s access to Data it has compiled. Vendasta collects this Data through a variety of sources and methods. This Data is provided to the Channel Partner for use only by the Channel Partner. Any republishing, sale or transfer of this Data is prohibited without the written consent of Vendasta prior to any publication.
5. Non-Exclusive; Independent Contractors
5.1 Channel Partner and its Customers will not have an exclusive right to market, sell or implement Solutions, and no franchise is granted to Channel Partner. Vendasta expressly reserves the right to market and sell Solutions itself, including to any Customer, and to contract with others to market and sell Solutions, including to any Customer.
5.2 Each Party to this Agreement is an independent contractor. This Agreement does not create any agency, partnership, joint venture, employment or franchisor or franchisee relationship. Furthermore, no labor relationship between Vendasta and Channel Partner employees is created hereby. Channel Partner will indemnify and hold Vendasta harmless of any Claim or judicial action whatsoever from any Channel Partner employee. Neither Party has the right or authority to, and will not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever. Notwithstanding the use of the term “Channel Partner” in this Agreement, the Parties do not intend to create any legal relationship of partnership between them, and neither will assert to any third party or otherwise claim that such a legal relationship exists between them. For greater certainty, Vendasta shall not, and Channel Partner hereby acknowledges
and agrees that Vendasta shall not, exercise any control over, or offer assistance in, Channel Partner’s method of operation, including locations, business organization, marketing techniques or training.
6.1 During the term of this Agreement and for two (2) years thereafter, each Party will protect the terms and conditions of the Channel PartnerAgreement and Confidential Information of the other Party as strictly confidential, using the same level of care as it affords its own Confidential Information, but in any event, at least reasonable care. Without the prior written consent of a disclosing Party, the Party receiving the Confidential Information of the disclosing Party and the receiving Party’s employees and representatives will not use or disclose to any other person or entity any Confidential Information of the disclosing Party, except as and only to the extent necessary to:
- perform its duties under the Channel Partner Agreement, including solicitation of sales;
- obtain any required governmental approvals; or
- comply with laws or as otherwise required by a court of competent jurisdiction, but only to the extent of such requirement: provided that before making such disclosure the reviewing party will give the disclosing party written notice of such disclosure
and provide an adequate opportunity to interpose an objection or take action to ensure confidential handling of such Confidential Information.
6.2 Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by it or its employees or agents in violation of the terms of the Channel Partner Agreement or applicable law, and each Party shall be liable for any such violation by its employees and agents.
6.3 Each Party receiving Confidential Information agrees to return or destroy all copies of Confidential Information of the disclosing Party promptly upon a disclosing Party’s request at any time following termination of the Channel Partner Agreement and, if requested by the disclosing Party, an officer of the receiving Party shall provide a certificate, in form and content reasonably satisfactory to the disclosing Party, confirming that all Confidential Information has been returned or destroyed; provided, however, that notwithstanding the foregoing, either Party may retain one (1) copy of the Confidential Information of the other Party for the purposes of determining its legal obligations under the Channel Partner Agreement, and any Confidential Information of the other Party contained in back-up computer records or archives, provided that such copies are subject to the other provisions of the Channel Partner Agreement.
6.4 The Parties acknowledge and agree that any breach of the terms of this Section 6 will cause irreparable harm and damage to the aggrieved Party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section 6, and to specifically enforce the terms and provisions of this Section 6, in addition to any other remedy to which such Party may be entitled, at law or in equity.
7.1 During the term of the Channel Partner Agreement and for one (1) year following the termination of the Channel Partner Agreement, Channel Partner will not solicit, hire, contract with or retain any of Vendasta’s directors, officers, employees, or assignees without Vendasta’s prior written consent.
8. Indemnification; Limitation Of Damages
8.1 Subject to the limits set out in Section 8.2 of these Standard Terms, each Party (an “Indemnifying Party”) will indemnify, defend and hold the other Party harmless against any third-party claims, losses, liabilities, damages or expenses (including solicitor’s fees and expenses) (“Claims”) that arise directly or indirectly out of:
- a material breach by the Indemnifying Party of any representation, warranty made in the Channel Partner Agreement;
- violation or infringement by the Indemnifying Party of any copyright, trademark, patent or intellectual property right belonging to a third party; and
- gross negligence or willful misconduct of the Indemnifying Party, its officers, directors, employees, or agents under or in connection with the Channel Partner Agreement.
8.2 Channel Partner shall indemnify and hold harmless Vendasta from any Claims arising from its marketing or sale of the Solutions hereunder. Without limiting the generality of the foregoing, Channel Partner shall indemnify and hold harmless Vendasta from any Claims arising from a breach by Channel Partner or Customer of CASL.
8.3 Vendasta will not be liable to the Channel Partner or any Customer for any incidental, consequential, indirect, special, punitive or exemplary damages, or damages for loss of profits or revenues, Data or other business information, goodwill or other pecuniary loss, arising under or in connection with the Channel Partner Agreement and even if advised of the possibility of such damages. The foregoing disclaimer of liability shall apply regardless of whether such liability is based on breach of contract, contractual or extra-contractual liability, tort (including without limitation negligence), strict liability, breach of a fundamental term, fundamental breach, or otherwise. In no event shall Vendasta’s liability
under this Agreement exceed US$5,000.00
9. Disclaimer Of Warranties
9.1 Channel Partner agrees and acknowledges that Vendasta has not made any representations or guarantees regarding the integrity, accuracy, completeness, success, profitability or expected opportunities associated with the Solutions and Channel Partner assumes all business risks associated with the Channel Partner Agreement and signing-up Customers to utilize Solutions.
9.2 VENDASTA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO CHANNEL PARTNER OR ANY CUSTOMER CONCERNING THE SOLUTIONS OR THEIR USE, ACCURACY OR FUNCTION AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOLUTIONS WILL BE ERROR FREE.
9.3 CHANNEL PARTNER SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, GUARANTEE, REPRESENTATION OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF VENDASTA. CHANNEL PARTNER SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SOLUTIONS GIVEN BY CHANNEL PARTNER.
10.1 All notices and other communications pursuant to the Channel Partner Agreement shall be in writing and shall be deemed given if delivered personally, by facsimile or e-mail, or sent by a nationally-recognized overnight courier or mailed by registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth on the first page or signature page hereof, as applicable, or to such other address as the Party to whom notice is to be given may have furnished to the other Parties in writing in accordance with this Section 10.1. Any such notice or communication shall be deemed to have been delivered and received (a) in the case of personal delivery, on the date of such delivery, (b) in
the case of facsimile or e-mail, on the date sent if sent before 5:00 p.m. on a day that is a Business Day, and otherwise on the next Business Day, (c) in the case of such a nationally-recognized overnight courier in circumstances under which such courier guarantees next Business Day delivery, on the next Business Day after the date when sent and (d) in the case of mailing, on the fifth Business Day following that on which the envelope containing such communication is posted.
11.1 Except for any announcement intended solely for internal distribution by either Party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures, including but not limited to promotional or marketing material, by either Party or its employees, contractors or agents which includes references to the other Party or the Marks of the other Party shall be coordinated with and approved in writing by such other Party prior to the release thereof.
12. Force Majeure
12.1 Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under the Channel Partner Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of nature, any acts of the common enemy, terrorism, the elements, earthquakes, floods, fires, epidemics, riots, attacks by unknown viruses, failures or delay in transportation or communications, or any act or failure to act by the other Party or such other Party’s employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a Party’s reasonable control. Time of performance of either Party’s obligations hereunder will be extended by the time period reasonably necessary to overcome the effects of such occurrences.
13. Governing Law
13.1 The Channel Partner Agreement is subject to, will be construed in accordance with and will be governed by the laws of the State of New York and the federal laws of the United States of America applicable therein. Each of the Parties
consents to the exclusive jurisdiction of the New York, New York, U.S.A. courts with respect to all disputes arising under the Channel Partner Agreement.
14.1 Neither the Channel Partner Agreement nor any of the rights, obligations, or duties of either Party can be assigned or delegated to any other entity without the prior written consent of the other Party, which consent will not to be unreasonably withheld, except that Vendasta may assign all or any part of its rights and obligations hereunder to a subsidiary, affiliate, successor or purchaser of all of the shares or all or substantially all of the assets of Vendasta. Subject to the foregoing restrictions, the provisions of the Channel Partner Agreement will enure to the benefit of and will be binding upon the assigns, successors-in-interest, personal representatives, estates, heirs and legatees of each of the Parties.