DataWind Service Agreement - Terms and Conditions

Web Viewer Access, and Other Services

These Terms and Conditions are incorporated into and made a part of the DataWind Access Service Agreement (the "Service Agreement" and together with these Terms and Conditions, this "Agreement") and are made by and between DataWind Inc., a Delaware corporation, with offices at 555 Rene Levesque West, Suite 1130, Montreal, PQ H2Z-1B1, Canada (hereinafter, "DataWind") and the customer identified on the Service Agreement (including any individual, company, satellite office, division, subsidiary or affiliate, collectively the "Customer").

The act of signing the Service Agreement by the Authorized Representative listed on the Service Agreement shall be confirmation that the Customer has read, understands and agrees to be bound by the terms of the Service Agreement, these Terms and Conditions, DataWind’s Acceptable Use Policy and other terms and conditions found on DataWind’s Website (www.datawind.com(the "Site")).In addition, by signing the Service Agreement, the Customer acknowledges that the Customer or its Authorized Representative is an adult (eighteen (18) years or older). The Customer agrees to be bound to modifications to DataWind’s Acceptable Use Policy or other terms and conditions, and notice to the Customer will consist of updating the Site or by sending an email to the address given to DataWind by the Customer.

Services

The Customer agrees to purchase Web Viewer Access and such other services selected by the Customer as indicated on the Service Agreement (together with such services that the Customer may order from DataWind in the future, the "Services"). The Services provided hereunder by DataWind (or its affiliates) are for the sole use of the Customer and are not for resale of any kind.

Billing

The Customer agrees to pay DataWind’s invoices at the frequency set in the Service Agreement in U.S. currency by the payment mechanism defined in the Service Agreement, which invoices may include applicable sales, use, excise and like taxes. The Customer agrees to report to DataWind all changes to the Customer’s billing information within 30 days of such changes. If payment is not received for any reason on or before the invoice due date (including but not limited to credit card rejection), DataWind may assess a fee of one and one half percent (1.5%) per month of the outstanding balance on the Customer’s account or $25, whichever is greater. The Customer is also responsible for all attorney and collection fees arising from DataWind’s efforts to collect any unpaid balance. The Customer acknowledges that accounts unpaid 30 days after the invoice due date may have some or all of their Services interrupted. Such interruption does not relieve the Customer from its obligation to pay the monthly service charge. The Customer also agrees that it will pay for, at DataWind’s then-going rates, all network traffic, server traffic, server storage space, or e-mail accounts used or generated by the Customer in excess of that allotted under the Service plan(s) for which the Customer signed up.

Use of Services

The Customer agrees to use the Services in compliance with all federal, state or local laws or regulations and in compliance with DataWind’s Acceptable Use Policy, a copy of which is attached hereto, as may be amended on the Site. Without limiting the Customer’s obligations to comply with the Acceptable Use Policy, the Customer agrees that the transmission or hosting of any material in violation of any federal or state law or regulation, including, but not limited to any copyrighted material, material protected by a trade secret or material or messages that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable in any manner or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable international or national, state, local law or regulation, is strictly prohibited. DataWind reserves the right to remove or limit access to any materials DataWind becomes aware of that, in DataWind’s sole discretion, are potentially illegal, could subject DataWind to liability, or violate its Acceptable Use Policy.

Term and Termination

• The initial term of Services is set forth on the Service Agreement. After the initial term, this Agreement will automatically renew on a month-to-month basis, terminable by either party upon 30 days’ written notice to the other.
• The Customer agrees that if it terminates the Services prior to the end of the initial term, it will be responsible to pay (1) a fee equal to the monthly fee times the remaining number of months in the initial term; and/or (2) an additional charge in an amount equal to any promotional credit, discount, or fee waiver (if applicable) provided to the Customer. Termination charges are billed in one lump sum and shall be payable immediately upon termination.
• The Customer may terminate the Services at the end of the initial term or any renewal term by providing written notice to DataWind, not less than thirty (30) days prior to the expiration of the term. Termination notice must be sent to terminate@datawind.com, via E-mail and shall be effective within forty-eight (48) hours of receipt.
• DataWind reserves the right to revise, modify or discontinue at any time any or all aspects of the Services, including but not limited to service fees, any applicable tariffs, and any terms and conditions of this Agreement.

Privacy

DataWind shall treat all information received from the Customer as proprietary and confidential. Personal identifiable information shall not be shared with any party outside of DataWind, DataWind’s service providers or affiliates, without Customer’s prior consent, except as required by law or law enforcement agencies in their jurisdiction. While monitoring is not part of the Services, DataWind reserves the right to monitor the Customer’s use of the Services, without notice to the Customer, for the purpose of improving the Services and verifying security measures. For more information, please visit the Site to review DataWind’s Privacy Statement, as may be modified from time to time.

Disclaimer of Liability and Indemnification

THE SERVICES PROVIDED BY DATAWIND ARE OFFERED "AS IS". DATAWIND AND ITS EMPLOYEES, CUSTOMERS, AGENTS, THIRD PARTY INFORMATION/SERVICE PROVIDERS, CONTRACTORS OR THE LIKE ("DATAWIND PARTIES"), MAKE NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, REGARDING THE QUALITY, ACCURACY OR VALIDITY OF THE SERVICES, THE INFORMATION AND/OR DATA TRANSMITTED THROUGH OR HOSTED ON THE SERVICES OR ANY GOODS OR SERVICES ACQUIRED THROUGH USE OF THE SERVICES. USE OF ANY DATA, INFORMATION OR GOODS OBTAINED THROUGH USE OF THE SERVICES WILL BE AT THE CUSTOMER’S SOLE RISK. THE DATAWIND PARTIES WILL NOT BE LIABLE FOR ANY LOSS OF DATA OR DAMAGE. THE CUSTOMER AGREES THAT IT IS THE CUSTOMER’S RESPONSIBILITY TO COMPLETELY BACKUP ITS DATA.

The Customer understands that telecommunications and/or network access services may be temporarily unavailable for scheduled or unscheduled maintenance and for other reasons within or outside the control of DATAWIND. The Customer further understands that cell phone networks are subject to interference, dropped calls, coverage discontinuity and other service limitations. Under no circumstances do any such errors, delays, interruptions in telecommunications and/or network access services or loss of information nullify or modify these terms and conditions including without limitation DataWind’s disclaimer of liability above.

Customer agrees that it will defend, indemnify, and hold the DataWind Parties harmless from any demands, liabilities, losses, costs and claims, including reasonable attorneys fees, ("Liabilities") asserted against the DataWind Parties, that may arise or result from any use of the Services by the Customer or a third party, provided or agreed to be provided by any of the DataWind Parties. Without limiting the foregoing, the Customer agrees to defend, indemnify and hold harmless the DataWind Parties against Liabilities arising out of (i) any injury to person or property caused by any products or services sold or otherwise distributed in connection with the Services; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any violation of this Agreement (including the Acceptable Use Policy) by the Customer (including by a third party utilizing the Services).

Limitation on Liability

NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, YOU AGREE THAT NEITHER DATAWIND NOR ITS AFFILIATES WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF THE AGGREGATE AMOUNT PAID TO DATAWIND BY CUSTOMER HEREUNDER IN THE TWELVE MONTH (12) PERIOD BEFORE THE CAUSE OF ACTION AROSE.

The disclaimer and limitation of liability and indemnification provisions expressed in this Agreement will inure to the benefit of any apply to DATAWIND’s parent, subsidiary and affiliated companies (if any), and to any subcontractors performing work on DATAWIND’s behalf.

Miscellaneous

• The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
• If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provisions shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provisions were so excluded and shall be enforceable in accordance with its terms.
• This Agreement and the documents referred to herein (including the Site) constitute the entire agreement between the parties and shall constitute the sole documents setting forth terms and conditions of their relationship with regard to the matters set forth herein or therein.
• The Service Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
• Failure by DATAWIND to enforce any provision of these this Agreement shall not be construed as a waiver of any provision or right.
• As between the parties, DATAWIND and Customer are independent contractors in the performance of each and every part of this Agreement.
• DATAWIND shall not be responsible or liable for, or deemed in breach hereof because of any delay in the performance of its obligations under this Agreement, when such delay is due to circumstances beyond the reasonable control and without the fault or negligence of DATAWIND (such circumstances hereinafter called "Force Majeure"); provided however, that DATAWIND shall exercise reasonable diligence to overcome any Force Majeure impediment.
• The Customer may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without DATAWIND’s prior written consent, and any attempt to do so without that consent will be void; provided, however, that the Customer may assign, without such consent, any of its rights or obligations under this Agreement in connection with a sale of substantially all of its assets, merger or other reorganization transaction. DATAWIND may assign any or all of its obligations hereunder in DATAWIND’s sole discretion. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
• This Agreement will be governed by applicable federal laws and regulations and the laws of New York, excluding choice of law principles.