Terms of Service
These Terms of Service (the "Agreement") set forth the terms and conditions of Your use of Sunrise Marketing Technology Services ("Services"). In this Agreement, "You", "Your", “Customer” refer to You as the user of Our Services, or any agent, employee, contractor, or person authorized by You to use the Services or act on Your behalf. The “Company", “Sunrise Marketing Technology Services", “We", "us" and "our" Sunrise Marketing Technology Services, with its principal place of business in St. Peter's, NS
Unless superseded by an alternative service agreement, this Agreement explains Our obligations to You and explains Your obligations to Us for the Services provided by Sunrise Marketing Technology Services as set forth in your Quote, Statement of Work (SOW), or other Order Form(s) “Order”.
In consideration of the mutual promises and covenants made herein, the Parties agree as follows:
1. Entire Agreement
This Agreement, including the Company’s Acceptable Use Policy (“AUP“) and all other documents incorporated herein by reference, constitutes the entire agreement between the Customer and the Company. This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Sunrise Marketing Technology Services and the Customer (the “Parties“).
2. Modification of Agreement
You agree that Sunrise Marketing Technology Services may modify this Agreement and the Services it offers to You from time to time. You agree to be bound by any changes Sunrise Marketing Technology Services may reasonably make to this Agreement when such changes are made. By continuing to use the Services after any revision to this Agreement or change in services, you agree to abide by and be bound by any such revisions or changes.
3. Term
The initial term and renewal terms of Your Agreement with Sunrise Marketing Technology Services shall be as set forth in the Order. The initial term shall begin upon first use of the Services on the Order (“Initial Term”). After the Initial Term, the Agreement shall automatically renew for successive terms of equal length as the Initial Term (“Renewal Term”), unless it is canceled as provided in section 4 or otherwise terminated by Sunrise Marketing Technology Services . If the Order is a Project, the Agreement terminates upon completion of the Project.
4. Services
In addition to the information set forth the Order;
4. Service Cancellation
You can cancel an Order by writing to info@sunrisemartech.com (“Cancellation Notice”). The requested cancellation date (“Cancellation Date”) on Cancelation Notice must be no less than ninety (90) days after the end of the then current Renewal Term (“Cancellation Period”). A Notice of Cancellation will only be accepted by Sunrise Marketing Technology Services if it is submitted by Customer’s primary contact (i.e. the account owner) or a billing contact and only if the Customer has no outstanding amounts due. If these conditions are not true, Sunrise Marketing Technology Services will disregard the Cancellation Notice.
During the Cancellation Period, Sunrise Marketing Technology Services will cooperate with Customer to assist in a transition of the Services to You and/or other service providers (“Transition Services”). All Transition Services provided by the Company which are supplemental to the Services shall be paid for on a time-and-materials basis by Customer at the Company’s standard hourly rate.
5. Governing Law
This Agreement shall be interpreted in accordance with and be governed in all respects by the laws of the Province of Nova Scotia and the laws of Canada applicable therein. The courts of Nova Scotia shall have exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this Agreement or any alleged breach of this Agreement.
6. Fees and Payment
6.1 Payment and Billing Information
You agree to pay Sunrise Marketing Technology Services the one time or recurring fees for Services identified on the Order. The Customer is fully responsible to ensure payment of all amounts due are paid on time. Invoices and receipts, or hyperlinks to them, are emailed to the billing contact(s) provided by the Customer. Dollar amounts indicated on the Order are in Canadian currency unless otherwise stated.
The Customer is responsible for keeping its contact and billing information up-to-date and accurate, including a valid and functioning email address and telephone number. Failure by You, for whatever reason, to respond within seven (7) business days to inquiries related to this Agreement by Sunrise Marketing Technology Servicessent to the primary contact or billing contact(s) by email or phone using contact information provided by You will constitute a material breach of this Agreement.
In consideration for Company’s delivery of the Services, Customer shall pay the fees as follows:
(a) Monthly recurring fees are billed at the first of the month for that month. Where recurring fees are based on usage, usage is measured at the beginning of the month. To align with the Company’s monthly billing schedule, the Customer’s first invoice for recurring monthly Services may be prorated to the first of the next month. All recurring fees are due on receipt of invoice.
(b) All one-time fees are due on receipt of invoice.
6.2 Overdue Accounts
All fees not paid within thirty (30) days of their due date may be subject to a late charge calculated at a rate of 2% per month. Returned checks will also be charged a $150 NSF fee. Company may suspend Services if the Customer has any balance forty-five (45) days or more past due. Company may terminate the Customer’s Order if the Customer has any balance sixty (60) days or more past due.
6.3 Other Charges
The Customer will pay all sales, excise and other value-added taxes, duties or levies of any kind whatsoever imposed by any authority, government agency or commission in connection with Company’s Services as provided under this Agreement. The Company reserves the right to charge the Customer a standard hourly rate to cover professional services provided the Customer beyond the normal scope of service. Notwithstanding anything else contained herein, Customer shall indemnify Company and hold Company harmless against any liability that Company has for any additional taxes (including for greater certainty any interest, penalties, fines, or other similar charges) arising as a result of or in connection with any delay or failure by Customer, for any reason: (a) to charge, collect and/or remit to the relevant taxation authority any taxes due under or in relation to this Agreement; or (b) to file any tax or information return with the relevant taxation authority in connection with the charging, collection and/or remittance of taxes.
6.4 Fee Increases
Company may increase recurring fees related to an Order with at least forty-five (45) days prior notice from the beginning of a Renewal Term.
6.5 Disputes
Notwithstanding the foregoing, fees reasonably disputed by Customer (along with late fees attributable to such amounts) shall not be due and payable if, and only if, Customer:
(a) Pays all undisputed fees;
(b) Presents a written statement of any billing discrepancies on an invoice to Company with appropriate supporting documentation no later than fifteen (15) days after the date of this invoice; and
(c) Negotiates in good faith with Company for the purpose of resolving such dispute after submitting such written statement to Company. In the event such dispute is mutually agreed upon and resolved in favour of Company, Customer agrees to pay Company the disputed fees together with any applicable late fees. In the event such dispute is mutually agreed upon and resolved in favour of Customer, Customer will receive a credit for the disputed fees and any applicable late fees paid. In the event the dispute is not resolved in a thirty (30) day period, either party may apply to a court of competent jurisdiction for resolution.
(d) Except as expressly set out herein, all amounts paid to Sunrise Marketing Technology Services under this agreement are non-refundable.
7 Customer Representations & Warranties
Customer represents and warrants at its sole cost and liability that:
(a) You are the true and lawful owner or licensee of any software or data not provided by Sunrise Marketing Technology Services and You the full right and ability to use such software and data as contemplated in this Agreement;
(b) any Customer data transmitted or received on Sunrise Marketing Technology Services systems do not (i) violate any applicable laws or regulations or Company policies, (ii) cause a breach of any agreement with any third parties, or (iii) interfere with other Company customer’s use of any Company services or Company’s network;
(c) Customer has, where applicable, obtained all necessary consents to conduct its business in compliance with Canada Anti-Spam Law (“CASL”) and the Personal Information Protection and Electronic Documents Act or other similarly applicable federal or provincial/state statute, and;
(d) Customer will not grant third party access to Sunrise Marketing Technology Services systems unless approved by Sunrise Marketing Technology Services in writing;
(e) Use the Service for business purposes only.
8. Termination of Agreement
8.1 Termination
Upon the termination of this Agreement:
8.2 Company’s Termination for Material Breach or Insolvency
Notwithstanding anything to the contrary contained in the Agreement, Company may, at its option and in addition to any other rights and remedies available at law or equity, terminate the Agreement and any related Order:
(a) Upon fifteen (15) days prior written notice and opportunity to cure upon the actual breach or documented threatened breach of any warranties or obligations.
(b) Upon Customer becoming insolvent or bankrupt or making an assignment for the benefit of creditors or appointing (or having appointed) a receiver or trustee in bankruptcy or upon any proceeding in bankruptcy, receivership or liquidation being instituted against Customer and continuing for thirty (30) days without being dismissed.
8.3 Customer’s Termination
Customer may terminate the Agreement upon Company’s failure to cure a material breach within thirty (30) days of Company receiving written notice of such breach.
9. Warranty / Limitation of Liability
9.1 Warranty and Disclaimer
Subject to the qualifications and limitations contained herein, the Company warrants that the Services will, in all material respects, conform to the description of Services provided in the Services Portfolio. Except as set expressly forth in this Agreement, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW the Company makes no WARRANTIES, GUARANTEES, REPRESENTATIONS OR ENDORSEMENTS, express or implied, as to the Services, including but not limited to any warranty or condition of merchantable quality or fitness for particular purpose, NON-INFRINGEMENT OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. Maintenance and system repairs, upgrades and reconfigurations may temporarily impair Services. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH COMPANY USES COMMERCIALLY REASONABLE EFFORTS TO IMPLEMENT THE SERVICES TO PROTECT CUSTOMERS DATA, COMPANY DOES NOT PROVIDE OR GUARANTEE ABSOLUTE SECURITY.
9.2 Limitation of Liability
EXCEPT FOR CLAIMS ARISING FROM SECTIONS 9.3, 9.4 OR 10 HEREOF, Neither party shall be liable IN CONNECTION WITH ANY SINGLE EVENT OR SERIES OF EVENTS for any special, punitive, indirect, or consequential losses or damages, including BUT NOT LIMITED TO loss of profit, LOST BUSINESS REVENUE, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, even if advised of the possibility thereof, for any claim arising under this Agreement, regardless of cause of action. Furthermore, Customer agrees that Customer’s sole and exclusive remedy for COMPANY’s failure to provide the Services in accordance with the applicable SLA shall be as set out in such SLA. EXCEPT FOR LIABILITY OR BREACH RELATED TO BODILY INJURY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR UNAUTHORIZED USE OF CUSTOMER’S CONFIDENTIAL INFORMATION BY AN AUTHORIZED AGENT OF THE COMPANY, THE COMPANY SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER FOR AN AMOUNT GREATER THAN THE AMOUNT PAID BY THE CUSTOMER TO COMPANY FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO NOTICE OF THE CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS: (A) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (B) COMPANY’S ABILITY TO OFFER AND CUSTOMER’S ABILITY TO PURCHASE SERVICES OR ANY PORTION THEREOF UNDER THIS AGREEMENT WOULD BE IMPACTED.
9.3 Intellectual Property Indemnity
The Customer agrees to indemnify and save harmless the Company and its directors. officers, and employees, from third party liabilities, costs and expenses, including reasonable legal costs, to the extent directly out of Customer’s material breach of this Agreement or the AUP by the Customer or its users/clients. Subject to the limitations set out in Sections 9.1 and 9.2 above, the Company agrees to indemnify and save harmless Customer and its directors, officers. and employees, from third party liabilities, costs and expenses. including reasonable legal costs, to the extent directly attributable to the Company’s material breach of this Agreement. If a party seeks indemnification hereunder, that party will promptly notify the Other party and provide the other party reasonable, non-monetary assistance, and control over any litigation or settlement proceedings.
If either party (the “Indemnitee”) promptly notifies the other (the “Indemnitor”) of a claim against the Indemnitee that any of the Services or Customer supplied hardware, software or data, as the case may be, infringes a presently existing proprietary right of a third party, and if the Indemnitee specifies in such notice that the claim is based to any extent upon an alleged infringement enforceable in Canada of any portion of the Indemnitor’s properties (Services or Customer supplied hardware, software or data, as the case may be), the Indemnitor, with respect to and to the extent of the portion of the claim pertaining to the Indemnitor’s properties, shall indemnify and defend such claim at its expense and pay any costs or damages that may be incurred or finally awarded against the Indemnitee. THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9.4 PIPEDA and CASL Indemnity
Notwithstanding any limitation of liability otherwise contained in the Agreement, Customer agrees that it shall indemnify, defend and hold Company, its officers, directors, employees and contractors harmless from any and all claims, costs, liabilities and damages which arise from or relate to Customers failure to comply in the conduct of its business with the Canada Anti-Spam Law (“CASL”) and/or the Personal Information Protection and Electronic Documents (“PIPEDA”) Act or, where applicable, a similar federal or state/provincial statute.
10. Confidentiality of Customer and Personal Information
10.1 Confidential Information
(a) Confidential Information. The parties acknowledge that it will be necessary for each of them to disclose or make available to each other information and materials, including but not limited to business information concerning a party and its clients, specifications, research, software, trade secrets, discoveries, ideas, know-how, designs, drawings, flow charts, data, marketing plans and financial or business information that is disclosed whether orally visually or in a material form, (collectively the “Confidential Information”) that may be confidential or proprietary or may contain valuable trade secrets, and that such information may already have been disclosed prior to the Commencement Date. Prior to disclosure, the disclosing party shall use reasonable efforts to designate all Confidential Information by marking the information with the word “Confidential” or similar wording. However, Customer and Company agree that, even if not so marked, the Order, the Services Portfolio, any Custom Application, any Customer Hardware, Customer Software, information concerning Company’s facilities and all documents, descriptions and embodiments of any of them, shall be deemed Confidential Information.
(b) Exceptions. Information will not be considered Confidential Information if it:
(i) Is already, or otherwise becomes, publicly known by third parties as a result of no act or omission of the receiving party;
(ii) Is lawfully received, after disclosure hereunder, from a third party having right to disseminate the information without restriction on disclosure;
(iii) Is furnished to others by the disclosing party without restriction on disclosure; or
(iv) Can be shown by the receiving party to have been independently developed by such party prior to the execution of this Agreement.
(c) Injunctive Relief. The parties agree that any breach by either party or any of its officers, directors, or employees, of any provisions of this Section 10.1 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies at law or in equity.
10.2 Customer Data
As between the Company and Customer, Customer owns and retains all right, title and interest in all intellectual property rights pertaining to the Customer’s software and data (“Customer Data”), subject only to the Company’s right to access and use the Customer Data for the benefit of the Customer in connection with providing Services pursuant to this Agreement. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use the Customer Data. Customer represents that it has and will have the right to provide Customer Data to the Company in connection with the Services pursuant to this Agreement, including, but not limited to, obtaining applicable consents from identifiable individuals.
11. Force Majeure
The Company shall not be liable for any delay or failure in performance of Services due to events beyond the Company’s direct control, including war, riot, embargoes, strikes, casualties, accidents, fire, earthquake, flood, pandemics, acts of God, government intervention or action, supplier or vendor failure.
12. No Agency Relationship
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
13. Enforceability
If any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable, and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
14. Assignment and Resale
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) withoutSunrise Marketing Technology Services prior express written consent. Sunrise Marketing Technology Services may assign this Agreement or any rights hereunder upon the sale of all or substantially all of the Company’s assets to a third-party.
15. Acceptable Use Policy
The Customer agrees that the Company reserves the right to amend the terms of the AUP from time to time. The Customer will receive (30) thirty days’ notice of any such change. Unless the Customer notifies the Company in writing that such a change materially restricts their ability to do business within fourteen (14) days of notification, the Customer’s continued use of the Company’s Services after modification of the AUP constitutes Customer’s acceptance of the modifications.
16. Unlawful Use of Services
The Company will employ systems to guard the security of the Services. However, the Customer acknowledges that it accepts all risk to itself of any unauthorized or illegal use of the Company’s Services or any inter-connected system by the Customer or third parties. The Company provides no warranties, makes no representations, and accepts no liability for the consequences of unauthorized or illegal access or interference with the Customer’s Services.
17. Administrative Access and Administrative Tools
The Company retains the right to administrative access to all systems or devices on its network for the purposes of support, maintenance, security, inventory and other activities related to the delivery of Services. To facilitate this, all systems or devices will have functioning Company administrative privileges and tools installed. Administrative privileges and tools may be added, removed or modified by the Company at any time. The Customer will not tamper, hinder, delete or in any way change the functioning of these administrative privileges and agents. Any tampering or removal of the tools used by the Company to manage the Service constitutes a material breach of this Agreement. Moreover, Customer agrees that it shall not have administrative access to the Services, or any part thereof, unless provided or otherwise agreed to by the Company.
18. No Solicitation
Unless otherwise agreed in writing by the parties, during the Term of this Agreement and for a period of six (6) months following its termination for any reason each party agrees not to solicit for employment any current employee of the other party. This restriction does not prevent the hiring of such employees who respond to indirect, passive solicitation such as advertising, job boards, or web sites.
19. Data Backups and Restores
The Company may employ systems to help protect the reliability of its data storage environment. However, due to the technical limitations regarding backups and the possibility of data corruption on backup or restore, the Company cannot guarantee the success of a data or system restore.
20. Rights to Intellectual Property
Customer hereby grants Company a non-exclusive, non-sublicenseable, royalty free, worldwide license to use Customer’s trademarks, service marks, trade names, logos, or other commercial or product designations (collectively the “Marks“) for the purposes of marketing and promoting Customer’s services to the public. Customer may terminate Company’s right to use the Marks, in whole or in part, if the usage of such Marks does not adhere to Customer’s then current standards for such Marks. Neither party will acquire any right, title or ownership interest in and to any intellectual property owned or licensed by the other party in connection with the Services. Also, in the context of software provided by the Customer to the Company as part of its Services, the Customer will ensure that it is and remains compliant with all applicable third-party software licensing agreements.
22. Copyright
The Company represents, warrants and covenants the following: that as of the date of execution of each Order and throughout the term of this Agreement the Work, to its knowledge, does not and will not infringe upon or violate any third party intellectual property or other proprietary rights. The Company represents and warrants that as of the date of execution of each Order, to its knowledge, no claims or allegations have been made against it alleging infringement or violation of any intellectual property or other rights of any person or entity in connection with the Work. Should any such claims or allegations be made at any time, the Company will promptly inform the Customer. Intellectual Property rights shall include but are not limited to any patent rights, copyrights, moral rights, other rights associated with authorship, or trademark rights. For the purposes of this Agreement, knowledge of the Company refers to the actual knowledge of the individuals involved in the Services at the Company.
All copyright and other rights held by the Company in all materials provided by it to the Customer as part of the Work shall be assigned and hereby are assigned to the Customer by the Company upon completion of such materials and receipt by the Company of payment for the related portion of the relevant Order. Further, the Company waives any and all moral rights and rights of attribution in all materials making up all or any portion of the Work that are subject to copyright and represents and warrants that the Company has secured any and all necessary assignments and waivers from any individual authors thereof.
23. Publication
The Customer may publish or disclose information regarding the Services performed by Sunrise Marketing Technology Services The Customer will not use the name of Sunrise Marketing Technology Services , in any advertising or publicity without the prior written approval from the Company. The Company will not use the name of Customer, in any advertising or publicity without the prior written approval from the Customer.
24. Headings
Headings are used throughout this Agreement for convenience only and no provision, term or condition of this Agreement shall be construed by reference to any heading of this Agreement.
25. Survivability
Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties that accrued prior to the effective date of the termination some rights and obligations remain in effect, including: the obligation to pay outstanding balances, and Sections 2, 6, 7, 8, 9, 10, 11, 13, 14, 16, 17 and Sections 19 to 25 .
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