MySmartOffice Service Agreement and Terms of Service
Effective date: 29 January 2016
By clicking the “Accept” button, or the equivalent, for this Agreement on Pathway’s web site, or by signing this Agreement to purchase and/or use the Pathway MySmartOffice Services and/or additional, fee-based services used in conjunction with the Pathway MySmartOffice Services, you agree to be bound by all the terms and conditions of this Agreement and any modifications subsequently made pursuant to these terms. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind such legal entity to this Agreement, in which case “you” shall mean such entity. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must select the “Decline” button (or the equivalent) or not sign this Agreement and you may, thereafter not use the Pathway MySmartOffice Services. In addition to representations, warranties and agreements you make, you confirm the information you have provided to Pathway is true to the best of your knowledge and that you are 18 years of age or older.
We may change this Agreement from time to time by publishing the new policy on our web site and/or by written notice to you describing such changes. Any changes made during the term of your Agreement will become effective and applicable to you the earlier of thirty (30) days following such changes being published on Pathway’s web site or our written notice to you describing such changes.
TERMS OF SERVICE
The expressions which are used in this Agreement have meanings as described below:
1.1. “Acceptable Use Policy” or “AUP” means the Pathway Services Acceptable Use Policy posted at Pathway’s web site. The AUP comes into effect as of the date you enrol for the Pathway Services and may be amended pursuant to the terms of this Agreement relating to changes and modifications. The most current AUP can be found at https://www.pathcom.com/pathway-acceptable-use-policy/.
1.2. “Account” means the various elements that comprise your Service, including details and contact information on file with Pathway and the access credentials which are used to access your Pathway Service. The Account is also used to determine the Fee in the aggregate, chargeable to you, for the Service.
1.3. “Billing Cycle”means the monthly period for which you may use Pathway’s Services and for the monthly Fee is applicable to your Account.
1.4. “Business Day” means 9:00 a.m. to 5:00 p.m. Monday through Friday, Canada Eastern Standard Time and excludes Federal and Provincial public holidays in the Province of Ontario, Canada.
1.5. “Confidential Information” means all non-public information disclosed by us or our respective agents, our business partners or their respective agents, or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Pathway’s Confidential Information includes, without limitation:
1.5.1. Non-public information relating to our or our business partners’ technology, customers, business plans, security systems, network, applications and processes, product development plans, prices, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving our products or services which you obtain as a result of your use of the Pathway Services;
1.5.2. Third-party information that we are obligated to keep confidential;
1.5.3. The nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information that you are required to disclose by law or is otherwise freely available in the public domain as of the date of the currency of this Agreement.
1.6. “Client Data” means all data, information, applications, software, records, files, input, reports, forms, configurations, and other similar items that are received, stored, created, or transmitted by you when using the Service.
1.7. “Fee”means the fee you pay to Pathway for the Service that you enroll for in the Service Order.
1.9. “Service Level Agreement” or “SLA” means the Pathway Service Level Agreement which is relevant and applicable to the Service which you have elected to enroll for. The SLA is, by reference, part of this Agreement and comes into effect as of the date you sign the Service Order. The SLA may be amended pursuant to the terms of this Agreement. The most current SLA can be found at https://www.pathcom.com/mysmartoffice-service-level-agreement/
1.10. “Service Order” means the written Agreement or Order Form (in electronic or paper form) provided to you by Pathway for signature, which describes the Service (“Service Description”) you are purchasing and enrolling for, which is signed by you, either manually or electronically, to signify your agreement to purchase and pay for the Pathway Service.
1.11. “Service” means the Pathway Services described in the Service Order which are made available to you for a Fee by Pathway. The Services include, but are not limited to, the following:
1.11.1. Pathway MySmartOffice services (“MySmartOffice”)
1.11.2. Any other Pathway Cloud Services that are offered from time to time.
1.12. “Support” means the technical assistance provided to you by Pathway’s employees, via email, phone or on site, as this relates to the Service you have enrolled for via a Service Order.
2. ACCEPTANCE OF SERVICE ORDERS
2.1. This Agreement is incorporated into, and forms an integral part of, your Pathway Service Order by reference. If, over time, you sign multiple Service Orders with Pathway using a single account, then the Agreement incorporated into, and which forms part of the latest, or most recent, Service Order will govern all your Service Orders.
2.2. Your use of any Pathway system, application, or Service is governed by the most recent Pathway policies and terms.
2.3. A Service Order will be deemed to have been formally executed when:
2.3.1. A copy of a Pathway Service Order has been signed by you and sent to Pathway.
2.3.2. Pathway acknowledges via correspondence, including electronic mail, that it has received and accepted such Service Order Agreement.
2.3.3. Pathway provisions and activates the Service, described in your Service Order, for your use.
2.4. Pathway may accept or reject any Service Order you submit, at its sole discretion.
3. ACCESS TO THE SERVICES
3.1. Contingent upon Pathway’s acceptance of your Service Order, and as long as you comply with this Agreement and pay all Fees for the Services, Pathway agrees to provide the Service to you.
3.2. You may access the Services via the online control panel or console, or via Pathway-provided interface or equipment. Pathway may modify its control panel, console, or interface and elect to change its equipment at any time, or may change to new systems at its sole discretion.
3.3. Pathway agrees to follow security procedures at least as stringent, in Pathway’s reasonable judgment, as those described in its Security Policies.
4. SCOPE AND LIMITATIONS OF THE SERVICES
Pathway’s obligations: Non-Managed Services
4.1. For Services which do not include additional Fee-based Managed Services, Pathway will provide only the following:
4.1.1. The appropriate Service consistent with the Service Description and/or the Service Order
4.1.2. Service at a level equal to that which is defined in the SLA which is relevant and applicable to the Service you have enrolled for through a Service Order.
4.1.3. Access to the computing, network, and storage resources described in the signed Service Order, provisioned through Pathway or self-provisioned by you.
4.1.4. Access to Client Data and the Services for one Billing Cycle after the payment of your last and final Fee to Pathway, contingent upon your meeting your obligations under this Agreement.
4.1.5. Physical security for the hardware (network, storage, and servers) and software that hosts your Service.
4.1.7. 24/7/365 first contact tier (Tier I) phone and email technical support.
Pathway’s obligations: Fee-Based Managed Services
4.2. For additional Fee-based Managed Services, Pathway will provide only the following:
4.2.1. The appropriate Managed Service consistent with the Services Description and/or the Service Order.
4.2.2. 24/7/365 Tier I phone and email technical support for the appropriate Managed Service.
4.2.3. Response times for Managed Service technical support as defined in the SLA which is relevant and applicable to the Service that you have enrolled for through a Service Order.
4.3. Pathway’s Managed Service obligations apply to You only if and when you enrol for one or more of the following Fee-based Managed Services through a Service Order:
4.3.1. Data Backup
4.3.2. Server Monitoring and Response.
4.3.3. Operating System (“OS”) Management.
4.3.4. High Availability
4.3.6. Other Managed Services as and when these are specifically launched and offered by Pathway.
Specific Exclusions: Specialty Services:
4.4. Pathway’s obligations related to Managed Services specifically exclude the following Specialty Services:
4.4.1. Patches, maintenance, and repair of the OS or Applications installed on the Client’s endpoint assets (“Endpoints”), which can include but are not limited to bare metal servers, desktops, laptops, mobile devices, and Virtual Machines (“VMs”).
4.4.2. Migration of Endpoints and Services from the Client’s own, internal or other environment to Pathway’s infrastructure.
4.4.3. Migration services from the Client’s environment or infrastructure to another environment or infrastructure.
4.4.4. Secure VPN connections to your Endpoints.
4.4.5. Additional VLANs.
4.4.6. Automatic fail-over for Endpoints.
4.4.7. DNS Server installation and migration.
4.4.8. DNS load balancing.
4.4.9. Consulting Services, including custom documentation and audits.
4.4.10. High availability for any application or software platform.
4.4.11. Load balancer installation and management.
4.4.12. High availability storage.
4.4.13. Microsoft® Exchange or any equivalent messaging environments or platforms.
4.4.14. Database servers: installation and management.
4.5. The Specialty Services are not part of the Service Order for MySmartOffice Managed Services. The Specialty Services are available for a Fee from Pathway, are covered by separate SLAs, and require a separate Service Order.
4.6. Pathway’s Service obligations specifically exclude the following:
4.6.1. Any Managed Service which is not specifically listed in a Service Order signed by the Client.
4.6.2. Any Specialty Service which is not specifically listed in a Service Order signed by the Client.
4.6.3. Support for restored Client Data, unless integrity of data is compromised by a failure of Pathway’s Backup System.
4.6.4. Any guarantee beyond the integrity of the backup session that the Client Data within a restored backup session will function correctly or properly. Illustratively, if a backup session includes an installed application that was malfunctioning before the backup session began, it will continue to malfunction when the backup session is restored. Similarly, if a backup session includes a file that was corrupt before the backup session began, the file will be corrupt when the backup session is restored. Pathway is not liable for Client Data either within or outside the backup session(s). Note that these examples are for clarification purposes only.
4.6.5. Technical support for any issues that are caused by applications or custom configurations that you install on the OS.
4.6.6. OS licenses, unless the appropriate Fee is paid to Pathway.
4.6.7. Support for misuse of the environment and for infrastructure monitored directly by the Client.
4.6.8. A guarantee that your firewall(s) will detect and prevent intrusions or intrusion attempts.
4.6.9. A guarantee that audits undertaken by Pathway will detect any malware including but not limited to registry issues, intrusions, or root kits.
4.6.10. Any audits, reports, documentation, actions, configuration, or changes based on recommendations, reports, and documentation provided to you separately through a Pathway Consulting Service Agreement.
4.6.11. Any liability (monetary or otherwise) either direct or implied for Client Data lost due to any Managed Service.
For scheduled maintenance:
5.1. Pathway will attempt to provide at least five (5) days’ notice at the email address provided by you, and which is available on record with Pathway. The notice will include a description of the maintenance to be performed, the duration of the event, and the expected impact, if any, on your Service.
5.2. Pathway will make best efforts to schedule maintenance periods outside of normal business hours (9 a.m. to 5 p.m. EST/EDT).
5.3. Pathway cannot guarantee that we can always schedule maintenance outside of normal business hours (9 a.m. to 5 p.m. EST/EDT) or provide any assurance against, or compensation (monetary or otherwise) for, loss or corruption of Client Data during emergency or scheduled maintenance.
5.4. You are required to back up your Client Data to a non-Pathway location before scheduled maintenance begins. If you require Pathway’s Data Backup Services, you must enrol for the appropriate Service, agree to the terms and conditions of such Service and pay the appropriate Fee(s) to Pathway.
5.5. For emergency maintenance, Pathway will attempt to provide notice, at the phone number provided by you, which is available on record with Pathway.
6. YOUR OBLIGATIONS
6.1. You agree to use the Services only for lawful purposes.
6.2. You may not use the Services for any purpose that is contrary to applicable laws or which is a nuisance.
6.3. You agree not to transmit, upload or download, store, post, publish, disseminate, receive, retrieve, or provide access to information, software, files or other material which are defamatory, obscene, deemed to be child pornography or hate literature or which may invade the privacy of others.
6.4. You may not use the Services for unauthorised copying, duplication, distribution, display or modification of any material or information protected by copyright or trademark or otherwise lawfully restricted (including, without limitation, software, programs, games and computer code).
6.5. You may not compile or use the Pathway Services, servers or infrastructure or any other information obtained through the Services for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations. You agree not to undertake mass-mail broadcasts of electronic mail (“spam”) or blog postings with the intent of sending unsolicited advertising to other users of the Internet.
6.6. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services.
6.7. You represent and warrant that you are not a person to whom Pathway is legally prohibited from providing the Services.
6.8. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of any nuclear, chemical or biological weapons, weapons of mass destruction or missiles in any country nor may you provide administrative access to the Service to any person (including any natural person or government or private entity) deemed to be located in or is a national of any country that is embargoed or is restricted under Canadian law.
6.9. You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury to any person or to physical or environmental damage without verified and tested independent alternate means of Service delivery from a source outside Pathway. For example, you may not use, or permit any other person or entity to use, the Pathway Service to transmit any data or information which is used in critical medical care and where the failure of the Service may endanger life or limb.
6.10. You further agree to:
6.10.1. Use only the Service for which you have signed a Service Order and for which you are paying a Fee to Pathway.
6.10.2. Comply with all Pathway policies including the Privacy Statement, AUP, and terms of this Agreement.
6.10.3. Use adequate and reasonable security precautions in connection with your use of the Services.
6.10.4. Cooperate with Pathway’s reasonable investigations of outages, security problems, and any suspected breaches of the Agreement.
6.10.5. Keep your billing contact and other account information up to date.
6.10.6. Pay, when due, the Fees for the Services.
6.10.7. Not interfere, or attempt to interfere in any manner, with the functionality or proper working of the Service.
6.10.8. Not attempt to access or use another Client’s Service.
6.10.9. Not attempt to circumvent any security measures deployed by Pathway.
6.10.10. Not stalk, exploit, threaten, abuse or otherwise harass any Pathway employee.
7. SERVICE LEVEL AGREEMENT
7.1. The Pathway MySmartOffice Service Level Agreement (“SLA”) which is relevant and applicable to the Service which you have elected to enrol and pay a Fee for is, by reference, part of this Agreement, and comes into effect as of the date you sign the Service Order. The SLA may be amended pursuant to the terms of this Agreement. The most current SLA can be found at https://www.pathcom.com/mysmartoffice-service-level-agreement/
8. CLIENT DATA
8.1. You will not have access to Client Data stored on the Pathway system during a suspension or following termination. Pathway backs up the Pathway systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups may be snapshots and, therefore, may capture only the information that exists on our systems at the time the snapshot is created. Pathway provides no guarantee that this type of backup will be available for your direct use. Please enrol for the appropriate Managed or Special Service related to backups.
8.2. We may destroy all but the most recent snapshot or backup. These snapshots or backups may not be available to you or, if available, may not be useful to you outside of the Pathway system. Although Pathway Services may be used as a backup service, you agree that you will maintain at least one (1) additional, current copy of your programs and data stored on the Pathway system somewhere other than on the Pathway system.
8.3. It is the exclusive responsibility of the Client to ensure the proper the storage, care, custody, and control of Client Data at all times. You are required to perform regular backups of your Client Data to a non-Pathway system to ensure against loss or corruption of your Client Data. Your obligation to perform regular backups of Client Data to a non-Pathway system remains unimpaired, under all circumstances.
8.4. Unless agreed upon by written modification to this Agreement or by incorporation in another Service Agreement, Pathway is free to delete Client Data from the system within seven (7) days of termination of your Agreement.
9. UNAUTHORIZED ACCESS
9.1. You are responsible for maintaining the security of your access credentials and are fully responsible for all activities that occur under your Pathway Account, regardless of whether such activities are undertaken by you or a third party.
9.2. Pathway is not responsible for any unauthorized access to your Client Data or the unauthorized use of the Services unless the unauthorized access or use results from Pathway’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have provided access or access credentials for the Services, and any person who gains access to your Client Data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
9.3. You must immediately notify Pathway of any breach of security or if you have reason to believe that any individual or entity may be using your Service or Account without your authorization or if your Pathway Service access credentials are otherwise lost, stolen, or compromised. Pathway will, under no circumstances, be responsible for Service interruption or loss on your part due to any action taken by a third party who acquires or obtains the use of your Pathway Service access credentials.
9.4. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of your Client Data which you or a third party submits or uses in connection with your Service.
10. CHANGES TO AGREEMENT AND OTHER POLICIES
10.1. We may change this Agreement and Terms of Service, the Privacy Statement and the AUP at any time, at our sole discretion, provided that such changes are reasonable and consistent with applicable law and general industry norms. Any changes made during the term of your Agreement will become effective and applicable to you the earlier of thirty (30) days following such changes being published on Pathway’s web site or our written notice to you describing such changes.
10.2. If the change materially and adversely affects you and you do not accept such changes, you may terminate the Agreement by giving written notice of your intent to terminate Services, no later than thirty (30) days following the date the change becomes effective, stating such grounds. If you terminate your Service because the change adversely affects you, we may, at our option, either:
10.2.1. Not enforce that change with respect to your Service and keep your Agreement in place for the remainder of the term; or
10.2.2. Permit you to terminate your Agreement without payment of early termination fees.
10.3. Other than as stated herein, the Agreement may be modified only by a formal document signed by authorized representative of each party. If there is a conflict between the terms of this agreement with any of the other documents that comprise this Agreement, then the documents will govern in the following order of precedence: Agreement, Service Order, Terms of Service, and the Acceptable Use Policy.
11.1. The initial term for each Service Order begins on the date we make the Services available for your use and continues for the period stated in the Service Order. If no period is stated in the Service Order, then the initial term shall be one year. Upon expiration of the initial term, the Service Order will automatically renew for successive renewal terms of one year each, unless and until one of us gives the other a written notice of non-renewal at least four months prior to the expiration of the initial term, or then-current renewal term, as applicable.
12.1. Pathway will charge you the Fees stated in your Service Order and you agree to pay Pathway the Fees related to such Services. The Fees posted on Pathway’s web site do not include taxes, long distance or other applicable charges.
12.2. There is a minimum Fee commitment related to each Service that you enrol for, under your Service Order.
12.3. If your actual Service usage is less than your minimum Service usage commitment, Pathway will still charge you the minimum Fee, and such minimum Fee will be higher than the amount of the Fee based on your actual usage.
12.4. Unless otherwise agreed to in writing, the Service Order, your Billing Cycle will be monthly, beginning on the date that Pathway first makes the Service available to you.
12.5. The schedule for payment of Fees to Pathway will be as follows:
12.5.1. For recurring Fees, in advance, on or around the first day of each billing cycle, which commences on the date your Service is activated
12.5.2. For non-recurring Fees (such as Fees for initial set-up, Service use overages and special, one-time or non recurring Services) on the date Service delivery was initiated and no later than the first day of the billing cycle that follows the date the Service was initiated.
12.6. Unless you have made other arrangements, you will be required to pay the Fees using a valid Credit Card (Visa or MasterCard only) issued in your name. By providing your Credit Card information for payment of the Service Fees to Pathway, you expressly authorize Pathway to charge your Credit Card (and any replacement Credit Card) all Fees and outstanding amounts owing to Pathway.
12.7. It is your responsibility to ensure that the billing information provided to Pathway, including your address and Credit Card details or other billing information, remains current at all times and you agree to notify Pathway of any changes to your billing information forthwith.
12.8. Pathway may suspend all Services (including Services provided to you pursuant to any unrelated Service Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason.
12.9. Pathway may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate, whichever is higher) on any amount that is overdue by more than thirty (30) days. If Pathway brings any legal action to collect, or engages a collection agency, you will also be required to pay Pathway’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in Canadian Dollars. Any “credit” that Pathway may owe you, such as a credit for failure to meet a stated Service Level Assurance, will be applied to Fees due from you for Services, and will not be paid to you as cash or as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed to be accurate.
12.10. Pathway is required, by law, to collect taxes on the provision of the Services, and you must pay Pathway the amount of the tax that is due or provide satisfactory evidence of your exemption from such tax.
12.11. You authorize Pathway to obtain a credit report at any time during the term of the Agreement.
13. FEE INCREASES
13.1. Pathway may increase the Fee for the Services at any time on 30 days’ (30) days written notice to you. Such Fee increase will be effective as of the completion of the thirtieth day of the period of written notice of the Fee increase. In addition if, during the initial term or any renewal term, there is an increase in the Canadian Consumer Price Index over the Canadian Consumer Price Index reported for the month in which you signed your Service Order, we may increase your Fees by the same percentage as the increase in the Canadian Consumer Price Index. Provided that we may not increase your Fees pursuant to this clause more often than once every twelve months, and we must give you at least thirty days advance written notice of the increase.
14. SERVICE SUSPENSION OR TERMINATION
14.1. We may suspend or terminate your Services without any liability if:
14.1.1. We reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement;
14.1.2. We discover that you are, or are affiliated in any manner with, a person or entity who/which has used similar services abusively in the past;
14.1.3. You do not cooperate with Pathway’s reasonable investigation of any suspected violation of the Agreement;
14.1.4. We reasonably believe that your Services have been accessed or manipulated by a third party without your consent;
14.1.5. We reasonably believe that suspension of the Services is necessary to protect our network or our other customers;
14.1.6. A payment for the Services is overdue (you revoke our authorization to make Credit Card withdrawals;
14.1.7. We cannot reach you to obtain, confirm, revalidate or update information required to process your Fee;
14.1.8. The suspension is required by law.
14.2. We will give you reasonable advance notice of suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Pathway or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we will continue to charge you the Fees for the Services during the suspension, and will charge you a Reinstatement Fees (not to exceed $250.00) upon reinstatement of the Services. If your Service is terminated on account of a breach of this agreement pursuant to this paragraph, we will have no obligation to make any refund or other payment (including, without limitation, refund of set up fees, prepaid fees or other credits for future Services) to you and despite any termination, we may pursue any other recourse against you, including barring you from accessing your Client Data.
15. TERMINATION FOR CONVENIENCE AND EARLY TERMINATION FEE
15.1. You may terminate this Agreement for convenience at any time, on thirty days advance written notice. If you terminate the Agreement for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to fifty percent (50%) of the minimum monthly financial commitment you have made, for the remaining, portion of the then-current term. You agree that this is not a penalty but a reasonable payment of Fees to Pathway for early termination of this Agreement. If you are on a month-to-month contract Term, you will be entitled to no refund for any pro-rata amounts should you decide to terminate your Agreement before the end of the month.
16. TERMINATION FOR BREACH
16.1. We may terminate the Agreement for breach on written notice if:
16.1.1. We discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete;
16.1.2. If you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Service Order;
16.1.3. If you are an entity or fiduciary, the individual submitting the Service Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
16.1.4. Your payment of an invoiced amount is overdue, and you do not pay the overdue amount within seven (7) days of our written notice;
16.1.5. A credit report indicates you no longer meet our reasonable credit criteria. Provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Pathway in an orderly and reasonable manner within three business days; (v) you use your Service in violation of the AUP and fail to remedy the violation within three (3) business days of our written notice;
16.1.6. You fail to comply with any other provision of the Agreement and do not remedy the failure within seven (7) days of our notice to you describing the failure.
16.2. Termination of your Service shall not relieve you from any Fees, Termination Charge, or other fees and charges, owing or other liability accruing hereunder or incurred prior to the time that such termination or suspension becomes effective.
16.3. You may terminate this Agreement for breach on written notice if:
16.3.1. We materially fail to provide the Services on more than one occasion in six months and do not remedy that failure within seven (7) days of your written notice describing the failure;
16.3.2. We materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within seven (7) days of your written notice describing the failure.
17. LIMITATIONS OF LIABILITY
17.1. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from provable or demonstrated gross negligence or wilful misconduct. The credits described in the SLA are your sole and exclusive remedy for failure to provide the Services unless such failure is due to Pathway’s provable and demonstrated gross negligence or wilful misconduct.
17.2. Neither of us, namely you or we, nor any of our respective employees, agents, affiliates, or suppliers, is liable to the other for any lost profits or any other indirect, special, incidental, or consequential loss or damages of any kind or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
17.3. Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Pathway and any of its employees, agents, suppliers, or affiliates, in connection with the Services, the Agreement and any act or omission related to the Services or Agreement under any theory of law (including Breach of Contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of:
17.3.1 The amount of Fees you paid for the Services for two (2) months prior to the occurrence of the event giving rise to the claim; or
17.3.2. Five Hundred Canadian Dollars ($500.00).
17.4. Under no circumstances shall we, our affiliates or our agents be liable to you or to any third party for any direct, indirect, special, exemplary, punitive, or consequential damages, including, without limitation, loss of profits and loss of business opportunities that result from:
17.5. This Service, including its use or unavailability or any part thereof, by you or any other person using your Service Account or those who may rely on or use information, services, or merchandise provided on or through the Service, or
17.6. Mistakes, omissions, interruptions, deletion, or corruption of files, errors, defects, delays in preparations or transmission, or failure of performance, or
17.7. Any losses or expenses (including legal fees) arising out of, or in connection with any allegation, claim, suit, or other proceeding based upon a contention that the use of the Service by you or a third party through your Account infringes the intellectual property rights or contractual rights of any third party, or
17.8. Defamation or copyright infringement arising from material transmitted or received over our or our affiliates’ facilities, or
17.9. Infringement of patents arising from combining or using your facilities with ours or those of our affiliates.
18.1. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Pathway Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, wilful misconduct, violation of law, failure to meet security obligations required by the Agreement, violation of the AUP, or violation of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages awarded, fine or other amount that is imposed on the Pathway Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Pathway Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Pathway Services. We will choose legal counsel to defend the claim, provided that these decisions are reasonable and promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
19. THIRD PARTY LICENSE TERMS
19.1. In addition to the terms of this Agreement, your use of the Service is governed by the license terms and conditions of use that may apply to any third party software, systems, processes or applications used by Pathway in the provision or delivery of the Services, as modified from time to time by the supplier or vendor of such third party software, systems, processes, or applications.
20. OWNERSHIP OF INTELLECTUAL PROPERTY
20.1. Each of us retains all right, title, and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Pathway during the performance of the Services shall belong to Pathway unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
21. CONFIDENTIAL INFORMATION
21.1. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
21.1.1. To our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement;
21.1.2. To a Canadian law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law;
21.1.3. In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
22.1. We do not warranty or promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Pathway has no obligation to provide security other than as stated in this Agreement. To the extent permitted by applicable law, Pathway makes no express or implied representations, warranties or conditions of any kind whatsoever, including but not limited to warranties of title or non-infringement, or implied warranties or conditions of merchantability or fitness for a particular purpose, with regard to the Service, hardware, software or any other Service or deliverable provided hereunder, or any merchandise, information, content or Service provided on the internet, and all representations, warranties, or conditions of any kind, express or implied are, to the extent permitted by applicable law, hereby excluded.
22.2. Neither Pathway, nor any of its affiliates, agents or suppliers warrant the performance, availability, uninterrupted or error free use of or operation of the Service or any deliverable provided pursuant to this Agreement. The entire risk as to the availability and performance of the Service or any of its components is with you. Further, neither we nor our affiliates, agents or suppliers warrant that any data or files sent by or to you will be transmitted, transmitted in uncorrupted form or transmitted within a reasonable period of time, or that such data or files will not be intercepted, that other persons will not gain access to your Account, the Service, any of your content or that any data or material accessible through the Service will be free of viruses or other harmful components.
23. RESELLING SERVICES
23.1. If you are a reseller of the Pathway Services, you may resell the Services, provided that in addition to yourself, you bind, to the terms of this Agreement, in writing, the end user to whom you resell the Services. You will, however, be responsible for use of the Services by any end user to the same extent as if you were using the Services yourself. Unless otherwise agreed, Pathway will provide support to such end user to whom you resell the services, consistent with the terms of this Agreement.
24. NOTICES AND COMMUNICATION
24.1. All email communications regarding your Pathway Service should be sent to:
24.1.1. For technical support and service matters, the Pathway Communications Technical Support Team at email@example.com.
24.1.2. For other issues, firstname.lastname@example.org.
24.1.3. Paper documents must be sent to:
95 Apple Creek Blvd.,
Markham, Ontario L3R 1C7, Canada
24.2. Facsimiles must be sent to:
ATTN: MySmartOffice Sales and Support, RE: MySmartOffice Services
24.3. Pathway will send all communications regarding the Services and notices to the phone number or email addresses provided by you, which are available on record with Pathway. Notices are deemed received as of the time sent, or if that time does not fall within a business day (9 a.m. to 5 p.m. – Mondays through Fridays, excluding Federal and Provincial holidays) then on the next occurring business day. All notices must be given in the English language, except if you are a resident of the Province of Quebec, whereupon we will send notices in French.
25. IP ADDRESSES AND DOMAIN NAMES
25.1. Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses, server names and other facilities or property assigned to you by Pathway in connection with Services, including pointing the DNS for your domain name(s) away from Pathway Services. You agree that Pathway may, as it determines necessary, make modifications to DNS records and zones on Pathway managed or operated DNS servers and services.
25.2. If you register, renew, or transfer a domain name through Pathway, Pathway will submit the request to its domain name services provider (the “Registrar”) on your behalf. Pathway’s sole responsibility is to submit the request to the Registrar. Pathway is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the applicable legal terms of the Registrar. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name and you are responsible for responding to any inquiries sent to you by the Registrar.
26.1. You may not assign this Agreement without Pathway’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Pathway may use third party service providers to perform all or any part of the Services, but Pathway remains responsible to you under this Agreement for work performed by its third party service providers, to the same extent as if Pathway performed the Services itself.
27. FORCE MAJEURE
27.1. Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
28. GOVERNING LAW
28.1. The Agreement is governed by the laws of the Province Of Ontario, which shall be the exclusive venue for all disputes arising out of the Agreement, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Pathway or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
29. ENTIRE AGREEMENT
29.1. This Agreement, together with all Service Order(s), the Pathway Privacy Notice (“Privacy Notice”), the Pathway Service Level Agreement (“SLA”), and the Pathway Acceptable Use Policy (“AUP”), constitute the entire Agreement between you and Pathway concerning your use and access to Services, and supersede any prior agreement between you and Pathway.
30.1. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so, in a manner which is consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party.
30.2. The captions in the Agreement are for convenience only and are not part of the Agreement. In the event of a dispute between us regarding the interpretation of applicable law, policies or the AUP, Pathway’s reasonable determination shall control. The use of the word “including” in the Agreement shall be read to mean “including without limitation”. If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement. The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.