Standard WebPal Cloud Service Agreement

Unless otherwise agreed upon, this Agreement shall apply to all Palomino Clients.

Definitions

For purposes of this Agreement, the following definitions apply:

The Effective Date is the earliest day Client submits payment for an invoice, or accepts in writing an estimate, as issued by Palomino.
The Term of this Agreement and Warranty Period is 1 month after the Effective Date.
"Parties" means Client and Palomino, and "Party" means either one of us, including Client’s and Palomino’s officers, directors, employees and agents.
“Client” shall include client’s related subsidiaries, departments or owners. “Palomino” shall include Palomino’s related subsidiaries, departments or owners.
“Service Agreement”, “Agreement” means this agreement, applicable Service Level Agreements, applicable Statements of Work, Palomino’s current Terms of Use, and Privacy Policy, which may be modified by Palomino from time to time, and are posted at: http://webpal.net/misc/terms, http://www.webpal.net/misc/privacy
“Services” means the services purchased by Client as set out in a service proposal, each of which form part of the Service Agreement, and any additional Services added to the Service Agreement from time to time by the Parties.
The “Custom Solution” means the sum of all deliverables itemized in the Statement of Work. It does not include WebPal Cloud Server source code or database content.
“WebPal”, “WebPal Cloud Server” and “WebPal Cloud Services” means the unmodified software service offered by Palomino directly or via Palomino’s distribution partners.
The “Statement of Work” lists all tasks to be performed and all custom development and integration deliverables to be made by both parties during the Term of this Agreement as described in separate statement of works or online interactive estimates referred by the identifiers above (the “SOW” or “Estimates”).
The “Specification Document” describes the final deliverable(s) of the Project in technical and non-technical terms. It may include screenshots, logic flow diagrams, use cases and functional specifications.
The “Launch” means the process to make the Custom Solution accessible by the general public, or projected end-users, as the case may be. The Launch is performed by Palomino and may include deployment on production hosting servers, assistance in domain name resolution setup and final quality assurance.

Development & Deployment Services

Client contracts Palomino to develop and deploy a Custom Solution in accordance with a Statement of Work. This Statement of Work shall include, to the extend applicable:
1. Project identification and scope of development services;
2. Start and launch date for the Custom Solution to be developed;
3. Specification documents describing assumptions made about the performance scope of the Custom Solution;
4. Payment terms and penalties for non-compliance with schedule or budget;
5. Intellectual property rights of the Parties to the extend they differ from the rights set out in this Agreement.
The Parties agree that successful completion of the Statement of Work may require tasks and deliverables by both parties and that each party agrees to comply with the Statement of Work in a timely and professional manner.
At the beginning of the work, Palomino will conduct with Client an initial requirements analysis, which is concluded with a report listing all requirements as understood by Palomino staff, and responses to each requirement’s feasibility, efforts, suggestions and potential solution(s), if necessary. Client acknowledges that the Statement of Work and any budget previously proposed for the Project may change as a result of this requirements analysis.
As part of its fulfillment of its obligations under any Statement of Work, Palomino may outsource some or all of the work to be performed to a third party. In such case, Palomino shall be responsible for the delivery of the services by the third party, and shall manage the relationship with the third party. The fees associated with the delivery of the services by the third party shall be included in Palomino’s fees, and shall be payable by Client as if the services were performed by Palomino.
The Parties may agree at any time in writing to amend any Statement of Work. Unless specified otherwise, such amendments are billable at the rates as set out in Palomino’s rate schedules or issued estimates.

WebPal Cloud Services

Client agrees to subscribe for the Services, and Palomino agrees to provide the Services to Client subject to the terms and conditions in this Agreement. Any Additional Services that Client purchases from Palomino will become part of this Service Agreement.
Palomino shall provide access to WebPal Cloud Services to maintain and manage the Custom Solution. Palomino will calculate per-user and per-feature charges on a monthly, pro-rated basis as per Palomino’s supplied rate schedule.
Palomino will strive for Network and Cloud Storage to be available 99.999% of the time measured over a period of one calendar month. Palomino will strive for availability of WebPal Cloud Services, 99.5% of the time measured over a period of one calendar month.
Client shall be responsible to obtain disaster recovery and remote backup services.
Client may use the Services, Equipment and Network for lawful business purposes only. Client will at all times use the Services and Equipment in compliance with the Service Agreement and all applicable Laws.

Custom Solution Warranty

During the Warranty Period immediately following the day the Custom Solution was delivered by Palomino, Palomino will remedy any errors or omissions (“bugs”) not in accordance with the Specification Document at no additional charge to Client.
Client will notify Palomino of any such errors or omissions using Palomino’s regular support channels, and upon such notification Palomino shall provide an estimated time of resolution within one business day. To assist, Palomino will provide Client’s staff end-users with phone and email support to identify, resolve, and investigate any bugs.
Bug remedies will be carried out in a professional manner. Palomino will not upgrade or change Custom Solution components without prior authorization by Client. Client may request detailed change specifications from Palomino in order to provide authorization for the upgrade. Client will ensure to obtain any third party authorizations for upgrades prior to providing go-ahead.
Client agrees that during the Warranty Period, Custom Solution performance issues incurred by changes to any connected third-party system are not covered by the bug warranty and will incur billable charges.

WebPal Cloud Services Warranty

During the remainder of the Agreement Term post the Warranty Period, Palomino will remedy all WebPal Cloud Server performance issues using best efforts and professional workmanship, at no charge to Client, however,
bug fixes and end-user support for any Custom Solution are billable at standard Palomino rates.
Palomino will upgrade the WebPal Cloud Services from time to time with new versions and releases. Palomino reserves the right to upgrade WebPal Cloud Services components without prior notice.
Palomino manages all Cloud Servers pro-actively by monitoring network interface and HTTP uptime every 5 minutes, storage space and average CPU/memory utilization every 24 hours, and adjust computing and network resources to provide acceptable performance in compliance with the provisions in this Agreement. In the event that Palomino is not able to reach acceptable performance by these adjustments, Palomino will notify Client immediately.
Palomino warrants that during the term of this agreement, there will be no rate increases from the rates in as posted in provided estimates or invoices.

Liability

Palomino shall indemnify and save harmless Client, its officers, directors, agents and employees from, and against, any and all liability including, without limiting the generality of the foregoing, alleged copyright, patent or other intellectual property rights infringement or interference, based on materials provided to, and implemented by Palomino on behalf of the Client.
Each party shall indemnify, hold harmless and defend the other party, its officers, directors, employees, representatives and agents from and against any and all losses, damages, expenses, claims, suits, and demands of whatever nature (including legal fees and expenses) arising in respect of breach of representation, warranty or covenant or as a result of a failure, improper use, omission or negligence of Client.
Neither party shall in any event be liable for indirect, special, incidental or consequential damages or for exemplary or punitive damages, even if such party has been advised of the possibility of such damages.
Throughout the term of this agreement, Palomino will maintain adequate workers compensation, liability, disability, unemployment and automobile insurance as required by law for the Consultant and each of its employees performing services under this agreement. Palomino will also maintain throughout the term of this agreement, the following types of insurance coverage at, or above minimum policy set out below:

Commercial General Liability Insurance of $1,000,000
Information Technology Errors & Omissions Insurance of $1,000,000

Termination and Renewal

Client may terminate this agreement before its Term date, with a 30-day notice. Palomino will bill Client, and Client will pay promptly, fees for any performed professional work until the day of notice, plus an early termination fee is calculated as fifty per-cent (50%) of the sum of monthly service fees as per Appendix B, from the new termination date until the original termination date.
Prior to Launch, Client may terminate this Agreement without an early termination fee, if Client believes that the Custom Solution does not meet specifications as agreed on by both parties, and such discrepancies can not be remedied by Palomino. Setup fees and expenses invoiced by Palomino prior to termination will still be payable by Client.
Either party may terminate this Agreement upon default or material failure of the other party to perform its responsibilities and obligations hereunder. Upon default or material failure, the party in default is notified in writing of the nature of the default. If no satisfactory solution is forthcoming within fifteen (15) days of the date of such notice, then the non-defaulting party may at its sole option terminate this Agreement;
Either party may terminate this Agreement upon written notice if an insolvency or other proceeding for the relief of creditors or any petition under the Bankruptcy and Insolvency Act(Canada) is filed by or against the other party, and is not discharged within thirty (30) days, the other party files for bankruptcy, is adjudicated bankrupt, if the business of either is placed in the possession of a receiver or any government or government agency, or if either party makes an assignment for the benefit of creditors (such party, in each instance, being called “the Insolvent Party”), or ceases to do business as a going concern the other party may terminate this Agreement by giving written notice to the Insolvent Party
Upon termination of this Agreement, each party shall have the right to obtain, upon demand in writing access to and possession of any of the requesting party’s data or confidential information held by the other party. Each party agrees to promptly return such data to the other party upon request.

Data Privacy and Non-disclosure

Both parties agree to sign a separate, bi-lateral non-disclosure agreement. The existence and content of the entire Agreement, as well as all Client Data is considered confidential information as per definition in this non-disclosure agreement.
Without limitation, all application data, and documents uploaded by Client staff or Client clients, or by Palomino staff on behalf of Client, onto the Cloud Storage (hereafter referred to as “Client Data”) shall be the property of Client and will, upon request by Client, be provided to Client upon termination of the contract.
No Client Data shall be accessible to any third party and Palomino will warrant to make all reasonable efforts to protect Client Data from third party access. Under no circumstances will third parties receive access to the Cloud Servers by Palomino staff.
Palomino warrants that it will exercise all reasonable effort and pre-emptive caution to ensure its server is not compromised by viruses or intrusions. Palomino ensures latest known vulnerabilities in its server installation are patched.
Palomino will maintain a backup of Client Data within fifteen (15) days after termination of the Agreement. Within this time period, Client may request for Client Data to be delivered to Client in a suitable form. Palomino may charge Client for any reasonable costs that this delivery incurs.
Within fifteen (15) days after termination of the Agreement, Client may request Palomino to delete all Client Data on Palomino servers and data storage devices, upon which Palomino shall comply with the request within twenty-four (24) hours. Palomino shall delete all Client Data by completely erasing all live and backup data including, but not limited to, Cloud Server volumes, backups, and related documentation. Palomino shall notify Client in writing of completion of this request.

Miscellaneous

This Agreement shall ensure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
This Agreement shall be governed by and construed in accordance with the laws of Ontario and federal laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract.
The parties hereto shall sign such further and other papers, transfers and assignments, cause such meetings to be held, by-laws and resolutions passed, and do such other things as may be necessary or desirable to give full effect to this Agreement and every part hereof.
This Agreement, and any documents referred to herein, represent the entire agreement between the parties hereto only with respect to the specific terms of this agreement and its attached schedules and does not amend, affect or alter in any way the rights of the parties pursuant to previous agreements between them.
In the event that one or more of the provisions is found to be illegal or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect. Except as otherwise provided herein, no term or provisions hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. Unless otherwise expressly provided, any notice or other communication required or permitted to be given hereunder or for the purposes hereof to Client or Palomino shall be in writing and shall be sufficiently given if delivered personallyto such party, or if sent by prepaid registered mail or if transmitted by facsimile.
Such notice shall be deemed to be received on the date of delivery or facsimile transmission, if delivered personally or faxed, or four days after registered mailing in all other circumstances.

This Agreement is governed by the terms and conditions noted above and, once effective, will form a legally binding contact between them.