HOSTING AGREEMENT
IMPORTANT: THIS SOFTWARE HOSTING AND END USER LICENSE AGREEMENT (“AGREEMENT”) IS
A LEGAL AGREEMENT BETWEEN YOU AND MARMAK INFORMATION SERVICES READ IT
CAREFULLY BEFORE USING THE SOFTWARE SUBSCRIPTION AND USING THE SOFTWARE. IT
PROVIDES A LICENSE TO USE THE HOSTED VERSION OF THE SOFTWARE AND CONTAINS
WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY LOGGING IN YOUR INSTANCE OF
THE HOSTED SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE /
HOSTING SERVICE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF
YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT LOGIN TO THE SOFTWARE.
1. DEFINITIONS
(a) "MARMAK" means MARMAK INFORMATIONSERVICES and its licensors or affiliates, if any.
(b) "Software" means only the ComTRACK software program(s) and third party software programs, in
each case, supplied by MARMAK herewith, and corresponding documentation, associated media, printed
materials, and online or electronic documentation.
(c) “Software Edition” means the specific version of the Software Subscription that you have purchased
including the specified number of concurrent user licenses.
(d) "Hosting" means the service provided by MARMAK to install and host the Software on a shared
Microsoft Windows® Web Server and Microsoft SQL Server® Database Server that is publicly accessible
to you over the Internet.
(e) “Subscription” means the combination of Software and Hosting provided by MARMAK to you during
the specified Subscription Period.
(f) "Subscription Period" means the period(s) during which a specified number of Users are licensed to
use the Subscription pursuant to the purchased Software Edition.
(g) “Client” means the legal entity purchasing the Subscription. In the case of local, provincial, territory or
federal governments, CLIENT will be limited to the specific department or statutory agency of
Government purchasing the license.
(h) "User(s)" means employees, representatives, consultants, contractors, agents or customers of the
CLIENT who are authorized to use the Subscription and have been supplied user identifications and
passwords by the CLEINT (or by MARMAK at the CLIENTS's request).
(i) "User Data" means all text, pictures, and other data provided by users of the Software.
(j) “Trial Subscription” means a time-limited evaluation Subscription provided at no cost to CLIENT for the
purposes of evaluating the functionality of the Software.
(k) “Commercial Subscription” means a Subscription that is not a “Trial Subscription”
2. HOSTING.
Hosting Services: MARMAK will provide the following Software hosting services as part of a Commercial
Subscription. Such services will be performed in a professional, workmanlike manner with a high grade
of services, so that the Software is accessible to third parties as can be reasonably be required by the
CLIENT.
(a) Data Backup.MARMAK will maintain a Weekly copy of the User Data stored in the Software as
part of the Subscription.
(b) Data Downloads. theCLIENT may download data using the excel export function of the software.
The CLIENT may request a copy of any and all User Data at any time. MARMAK will make requested
User Data available on its secure web site for theCLIENT to download. The charge to the CLIENT,
payable to MARMAK, will be $150 per hour. This fee is subject to change with one-month advance written
notice from MARMAK to the CLIENT.
(c) Standards/Service Level Guarantees. MARMAK’S hosting standards will conform to the
standards, service level guarantees.
(d) Security. MARMAK will exercise industry-standard measure to prevent unauthorized access to
the backup server sites, restricted areas of the Software and any databases or other sensitive material
generated from or used in conjunction with the Software; and MARMAK will notify the CLIENT of any
known security breaches or holes.
(e) Support. MARMAK shall maintain an organization and be prepared with suitably qualified and
competent personnel during its normal business hours to provide knowledgeable and timely support
service in accordance with this Agreement. Under the terms of this Agreement, MARMAK will provide to
the CLIENT the following support services:
i. Telephone Support: MARMAK will provide telephone support to the CLIENT during
Normal Business Hours. Normal Business Hours are between 9 a.m. to 5 p.m.
(EST/EDT), Monday through Friday, excluding CANADIAN public holidays.
iii. Email Support: the CLIENT may log requests for support via email by directing its query
to an email account or website provided by MARMAK.
iv. Turnaround Time: MARMAK will make reasonable efforts for a TSE to respond to
emailsand phone messages within one (1) Business Day.
3. LICENSE GRANTS & RESTRICTIONS
(a) MARMAK hereby grants The CLIENT a non-exclusive, non-transferable right to use the
Subscription, subject to the terms and conditions of this Agreement. All rights not expressly granted to the
CLIENT are reserved by MARMAK and its licensors.
(b) The CLIENT may use the Subscription only for CLIENT’s business purposes and shall not: (i)
send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or
store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including
material harmful to children or violate third-party privacy rights; (iii) send or store material containing
software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or
programs; (iv) interfere with or disrupt the integrity or performance of the Subscription or the data
contained therein; or (v) attempt to gain unauthorized access to the Hosting service or its related systems
or networks.
(c) The parties agree that as between them, all rights, including all Intellectual Property Rights, in
and to CLIENT shall remain the exclusive property of CLIENT, and MARMAK has a limited, nonexclusive
license to access and use these Data as provided in this Agreement solely for the purpose of performing
its obligations hereunder.
(d) All CLIENT Data created and/or processed by the Services is and shall remain the property of the
CLIENT and shall in no way become attached to the Services, no shall MARMAK have any rights in or to
the Data of the CLIENT, except as expressly stated in the Agreement.
(e) This Agreement does not give a party any rights, implied or otherwise, to the other’s Data,
content, or intellectual property, except as expressly stated in the Agreement.
4. CLIENT RESPONSIBILITIES
The CLIENTis responsible for all activity occurring on MARMAK’S servers and shall abide by all
applicable local, provincial, national and foreign laws, treaties and regulations in connection with its use of
the Subscription, including those related to data privacy, international communications and the
transmission of technical or personal data. The CLIENT is responsible for backing up its data utilizing the
export function built withinComTRACK.
5. ACCOUNT INFORMATION AND DATA
MARMAK does not own or license any data, information or material that the CLIENT submits to the
Software in the course of using the Subscription (“User Data”). The CLIENT, not MARMAK, shall have
sole responsibility for backing up their data, the accuracy, quality, integrity, legality, reliability,
appropriateness, and intellectual property ownership or right to use of all User Data, and MARMAK shall
not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any
User Data, except as specifically required by this Agreement. In the event this Agreement is terminated
(other than by reason of CLIENT’s breach).
6. DATA RETENTION
In the event this Agreement is terminated (other than by reason of CLIENT’s breach), MARMAK will make
available to the CLIENT a file of the Data within thirty (30) days of termination if the CLIENTso requests at
the time of termination and has paid MARMAK, in full, for all services to that point. The Fee for this
service is $150.00 per hour. The CLIENT agrees and acknowledges that MARMAK has no obligation to
retain the User Data, and may delete such User Data, more than sixty (60) days after any termination or
expiration of this Agreement
7. SERVICE LEVELS
MARMAK represents and warrants that the Services will be operational at least 95% of the time in any
given month during the term of this Agreement, meaning that the outage or Downtime percentage will be
not more than 5%.
8. HOSTING SERVICES
MARMAK shall host the ComTrack Software in a secure data centre ensuring appropriate redundancies
are in place to guarantee the performance and security of the software and data. MARMAK shall back up
the Website and CLIENT’s data WEEKLY and retain those back-ups. In the event that CLIENT’S data is
lost from MARMAK’s servers, MARMAK at an hourly rate of $150.00 shall restore the back- up data.
9. HOSTING FEES
(a) In consideration for the Hosting Services to be provided hereunder to CLIENT shall pay to
MARMAK the applicable subscription fee.The CLIENT shall pay to MARMAK such fees within 30 days of
receipt of an invoice.
(b) All dollar amounts referred to in this Agreement are stated inCanadian Dollars, and are exclusive of
applicable taxes.
(c) Services acquired during the initial purchase shall be provided by Supplier to CLIENT for an initial
one (1) year term (the “Initial Services Term”) commencing on the “Services Commencement Date” (as
hereafter defined). The Initial Services Term shall be renewable for successive one (1) year terms
(“Extension Terms”, and collectively with the Initial Services Term, the “Services Term”) upon written
notice from CLIENT to MARMAK.
10. TERMINATION OF SERVICES
(a) Either Party may terminate any or all Services by providing at least ninety (90) days prior notice to
the other Party.
(b) MARMAK may suspend or terminate any or all Services in the event that CLIENT: (i) fails to
make any payment when due in accordance with this Agreement; (ii) otherwise breaches this Agreement;
(iii) becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment
for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition,
extension, or readjustment of all or substantially all of its obligations; or (iv) ceases to conduct business in
the ordinary course.
(c) The termination or expiration of any Service shall not prejudice or affectMARMAK’s rights
hereunder, including in respect of any breach of this Agreement by the CLIENTor in respect of any
monies payable to MARMAK hereunder for any period prior to such termination or expiration or for any
other Services that have not been terminated.
11. INDEMNIFICATION
The CLIENTshall indemnify, defend and hold harmless MARMAK and MARMAK’s directors,
officers, employees, agents, consultants, advisors and other representatives from and against any and all
claims, actions and proceedings (including any damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, arising therefrom) arising from or relating to: (i) MARMAK’s
performance of the Services, except to the extent such claims are directly caused by MARMAK’s breach
of this Agreement or negligence or willful misconduct in performing the Services; or (ii) any breach or non-
fulfilment of any covenant, responsibility, obligation, representation, warranty, or agreement on the part of
The CLIENT contained in this Agreement.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL MARMAK BE LIABLE FOR DAMAGES FOR FAILURE TO
MANUFACTURE OR MAKE COMMERCIALLY AVAILABLE EXTENSIONS,
RELEASES, ANCILLARY PRODUCTS OR ANCILLARY SERVICES DURING THE
TERM OF YOUR SUBSCRIPTIONS. IN NO EVENT SHALL MARMAK BE LIABLE FOR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO
EVENT WILL MARMAK BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR
INCIDENTAL DAMAGES. MARMAK’S LIABILITY ARISING FROM YOUR
SUBSCRIPTIONS OR THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE
ANNUAL SUBSCRIPTION FEES PAID BY YOU. THESE LIMITATIONS WILL APPLY
EVEN IF MARMAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU ACKNOWLEDGE THAT THE ANNUAL SUBSCRIPTION FEE REFLECTS THIS
ALLOCATION OF RISK.
MARMAK SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER
ARISING FROM LOSS OR THEFT OF ANY EXTENSION, RELEASE OR ANCILLARY
PRODUCT. YOU ARE SOLELY RESPONSIBLE FOR SAFEGUARDING
EXTENSIONS, RELEASES AND ANCILLARY PRODUCTS FROM LOSS OR THEFT
AND FOR PROTECTING YOUR INVESTMENT THROUGH INSURANCE OR OTHER
APPROPRIATE MEANS.
13. LIMITED WARRANTIES:
MARMAK warrants that the Software will provide the facilities and functions generally described in the
Documentation and that the media on which the Software is furnished, the Documentation accompanying
the Software, or other copy protection device accompanying the Software will be free from defects in
materials and workmanship under normal use.
EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, THE SOFTWARE, DATA, AND
RELATED MATERIALS CONTAINED THEREIN ARE PROVIDED "AS IS," WITHOUT WARRANTY OF
ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MARMAK
DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE, DATA, AND RELATED
MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE.
MARMAK’s entire liability and your exclusive remedy under the warranties made in this Agreement will
be, at MARMAK’s option, to attempt to correct or work around errors, to replace the defective media;
documentation or copy protection device, or to refund the license fee and terminate this Agreement.
14. DISPUTE RESOLUTION
If a dispute arises and these representatives are unable to resolve the dispute within ten (10) business
days, then the dispute will be escalated to an executive level representative of each party with the
authority to resolve such matters.
15. NOTICES
Mode of Giving Notice.Any notice, direction, certificate, consent, determination or other communication
required or permitted to be given or made under this Agreement shall be in writing and shall be effectively
given and made if (i) delivered personally, (ii) sent by prepaid courier service or mail, or (iii) sent by
means of electronic communication, in each case to the applicable address set out below:
Marmak
30 Intermodal Drive, Suite 204,
Brampton, Ontario L6T 5K1
Attention: John Tarantino
Email: jet@marmak.ca
