Terms & Conditions - ICS Creative Agency

Last Updated February 24th, 2020

ICS INFORMATIVE COMPUTER SOLUTIONS INC.

ICS CREATIVE SERVICES AGREEMENT
STANDARD TERMS AND CONDITIONS

These ICS Creative Services Standard Terms and Conditions are incorporated into the Agreement and, together with the Agreement, constitute a binding agreement between the Parties.

INTERPRETATION

Definitions. In the Agreement and these Terms:

        1. Acceptable Use Policy” means the Acceptable Use Policy set out in the Schedule to these Terms and includes any revision thereto pursuant to these Terms;
        2. Agreement” means the Creative Services Agreement entered into between ICS and the Customer into which these Terms are incorporated, including the recitals to the Agreement and its Schedules, each as amended, supplemented or restated from time to time;
        3. Applicable Law” in respect of any Person, property, transaction or event, means all Laws applicable to that Person, property, transaction or event or having or purporting to have authority over that Person, property, transaction or event;
        4. Approval” means an approval, authorization, consent, permit, grant, licence, privilege, right, order, judgement, ruling, directive, ordinance, decree, registration, filing and certification;
        5. Business Day” means a day other than a Saturday, a Sunday and a day on which the charted banks in the City of Fredericton, New Brunswick are authorized or obligated to close;
        6. CASL” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Canada);
        7. Claim” means any claim, demand, action, complaint, grievance, application, suit, cause of action, charge, indictment, prosecution, information, assessment, reassessments, investigation or similar process;
        8. Confidential Information” means all confidential and proprietary information of a Party and includes supplier lists, customer lists, marketing techniques, price lists, business opportunities, secrets, trade secrets, processes, ideas, materials, documents, business plans, business forecasts, strategies, professional or expert opinions, bids, estimates, proposals, financial information or any other information whatsoever, whether in verbal, written or any other form, relating to any and all aspects of the business and activities of the Party, whether public or non-public and whether or not specifically designated as confidential or proprietary, and includes the terms and conditions of the Agreement;
        9. Customer” means the Customer defined in the Agreement;
        10. Deliverable” means each of the deliverables, if any, set out in Schedule A;
        11. Effective Date” means the date of the Agreement; 
        12. Fees Schedule” means Schedule B to the Agreement;
        13. Governmental Authority” means any domestic or foreign government, including any federal, provincial, state, territorial or municipal government, and any government agency, tribunal, commission or other authority exercising or purporting to exercise executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government;
        14. ICS” means ICS Informative Computer Solutions Inc.;
        15. ICS Materials” means the know-how, techniques, technologies, methods, concepts, inventions and programs, which were developed by ICS at its own cost and expense in advance of and independent of the Agreement;
        16. Included Services” means, in respect of a Deliverable, Services described in the Services and Deliverables Schedule as being included with that Deliverable;
        17. Initial Payment” means the Initial Payment for Deliverables specified in the Services and Deliverables Schedule;
        18. Invoice” means an invoice issued by ICS to the Customer pursuant to the Agreement and these Terms;
        19. Intellectual Property Rights” includes all patents, invention rights, trademarks, service marks, logos, designs, bank concepts, names, registered designs, industrial designs, integrated circuits topographies, copyrights, design rights, know-how, Confidential Information, trade secrets and any other similar rights anywhere in the world, including all applications for registration and registrations of any of the foregoing;
        20. Law” means any present and future law, statute, regulation, treaty, judgments and decree and all applicable requirements, requests, official directives, rules, consents, Approvals, authorizations, guidelines, orders and policies of any Governmental Authority;
        21. Liability” means, with respect to any Person, any liability or obligation of such Person, of any kind, character or description, whether based on statute, contract, tort, strict liability, common law or otherwise, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise;
        22. Losses” means any and all losses (including lost revenues, profits and savings), Liabilities, damages available at law or in equity, interest, fines, penalties, sanctions, costs, and expenses (including costs of investigating, pursuing, defending and otherwise responding to any Claim, including court costs, reasonable legal fees and disbursements, costs of experts and consultants and other reasonable expenses of litigation on a full indemnity basis without reduction for tariff rates or similar reductions), after reduction of any of the following amounts: (a) any insurance proceeds collected by the Party suffering such Claim, after reasonable efforts, in relation to the matter which is the subject of such Claim; and (b) the value of any related determinable tax benefits realized, or which will (with reasonable certainty) be realized by the Party suffering such Claim following the date of incurring such cost or loss;
        23. Milestone Date” means a milestone date, if any, specified next to a Deliverable in the Services and Deliverables Schedule;
        24. Notice” means any notice, approval, demand, direction, consent, designation, request, document, instrument, certificate or other communication required or permitted to be given under the Agreement or these Terms;
        25. Party” means a party to the Agreement, and “Parties” means all of them;
        26. Person” means any natural person, sole proprietorship, partnership, corporation, trust, joint venture, any Governmental Authority or any incorporated or unincorporated entity or association of any nature;
        27. Personal Information” means personal information or personally identifiable information including names, phone numbers, addresses, credit card information, social insurance numbers, account or financial information and medical or health related information and any other personal data or information as defined or protected by Privacy Legislation and any other Applicable Law;
        28. Privacy Legislation” means any applicable Canadian or other foreign government Laws relating to the collection, processing, transmission, storage of Personal Information and privacy, including the Personal Information Protection and Electronic Documents Act (Canada) and the Applicable Law of a province that governs the protection of Personal Information;
        29. Schedule” means a schedule to the Agreement or these Terms, as applicable; 
        30. Services” means the services set out in the Services and Deliverables Schedule;
        31. Services and Deliverables Schedule” means Schedule A to the Agreement;
        32. Source Information” means, with respect to a Deliverable, the direction, information, documentation, content, review, feedback and approval to be provided by the Customer in order to permit ICS to deliver the Deliverable;
        33. Standard Service Fees” means the fees and expenses relating to the performance of Services specified in the Fees Schedule;
        34. Taxes” means all Canadian federal, provincial, foreign, state, local, municipal or other governmental taxes, duties, levies, fees, excises or tariffs, together with any penalties, interest or any additions thereto;
        35. Term” means the period ending upon (i) the later of the Termination Date and the Customer’s acceptance of all Deliverables or (ii) such earlier date upon with the Agreement is terminated in accordance with its terms;
        36. Terms” means these ICS Creative Services Standard Terms and Conditions, including the Acceptable Use Policy, in effect as of the Effective Date;
        37. Termination Date” means the termination date specified in the Services and Deliverables Schedule; and
        38. Work Product” means all reports, concepts, artwork, copy, designs, proofs, displays, creative content, drawings, specifications, plans, data, designs, proofs, text, Deliverables, and all derivative works thereof and any other materials (in whatever form or medium) (i) conceived, developed, or worked on by ICS, whether alone or jointly with others, while performing the Services under the Agreement or these Terms or (ii) that the ICS delivers to the Customer under the Agreement or these Terms.

Headings and References. The division of the Agreement and these Terms into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of the Agreement or these Terms. The terms “the Agreement,” “the Terms”, “hereof,” “hereunder” and similar expressions refer to the Agreement or the Terms, as applicable, and not to any particular section, subsection or other portion thereof or hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to “Sections” are to sections, subsections and further subdivisions of sections of the Agreement or these Terms, as applicable.

Extended Meanings. Unless otherwise specified, words importing the singular include the plural and vice versa and words importing gender include all genders. The term “including” means “including without limitation”.

Currency. All references to currency or dollar amounts in the Agreement and these Terms are to lawful currency of Canada.

Time of Day. Unless otherwise specified, references to time of day or date mean local time or date in the City of Saint John, New Brunswick.

Conflict. If there is a conflict between or among any provision of the Agreement, these Terms, a Schedule or any other document contemplated by or delivered under or in connection with the Agreement or these Terms, (i) the relevant provision of the Agreement shall prevail over these Terms, (ii) the relevant provision of a Schedule that conflicts with a provision of the Agreement or these Terms and that expressly contemplates that the provision of the Schedule is to prevail over the Agreement or these Terms, as applicable, shall prevail and (iii) the relevant provision of the Agreement, these Terms or the Schedule shall prevail over such other document.

Statutory References. Each reference to an enactment is deemed to be a reference to that enactment, and to the regulations made under that enactment, as amended or re-enacted from time to time.

Schedule. The Acceptable Use Policy set out in the Schedule to these Terms is incorporated by reference and deemed to be part hereof.

SERVICES AND DELIVERABLES

Service Standard. ICS shall deliver the Deliverables and perform the Services in a timely, diligent and efficient manner in accordance with the Services and Deliverables Schedule and, to the extent a Service that is not described in the Services and Deliverables Schedule is requested by the Customer, the Customer’s requirements and instructions communicated in writing to ICS at the time such Services are requested.

Limitation. ICS’s obligation to provide maintenance and other ongoing Services is contingent upon proper use of the Deliverables by the Customer. ICS is under no obligation to provide maintenance and other ongoing Services (i) if there has been a modification or attempted modification of the Deliverables (other than modifications expressly permitted within the structure of the Deliverables) or any of the Deliverables has been improperly installed or operated or used other than in accordance with the Agreement and these Terms and the applicable user documentation; (ii) to the extent the problems or issues with respect to the any of the Deliverables are external to the Deliverables (including problems or issues that result from or relate to use of the Deliverables with hardware, software, data or other materials not provided by ICS) or are beyond ICS’s reasonable control; or (iii) if the Customer has refused or otherwise failed to implement corrections, updates, enhancements, new releases, or other modifications that ICS has provided or recommended.

TERM

Term. The Agreement shall commence on the Effective Date and terminate at the end of the Term.

Delivery of Deliverables. ICS agrees to work as expeditiously as possible to complete each Deliverable, and by the milestone date, if any, specified next to the Deliverable in Schedule A (each a “Milestone Date”). The Customer agrees to provide ICS with the Source Information for each Deliverable in a timely fashion in order to permit ICS to deliver each Deliverable, by its Client Content Milestone Date if one is specified. Where a Milestone Date is specified for a Deliverable, the Customer has not provided the Source Information for the Deliverable in a timely fashion and, as a result, the Deliverable is not able to be delivered by its Milestone Date, the Milestone Date shall be extended by the amount of time during which a request for Source Information was made by ICS but the Source Information was not provided by the Customer. Where the Customer has not provided the Source Information for a Deliverable and the Deliverable is otherwise ready for delivery, ICS may, in it its discretion, issue an invoice for the remaining amount payable under this Agreement.

Termination. Subject to any refund required pursuant to these Terms, either Party may termination the Agreement at any time and for any reason upon thirty (30) days’ prior written notice to the other Party, provided that the Customer shall be obligated to pay to ICS all fees and expenses relating to those Services satisfactorily performed by ICS prior to such termination.

Survival of Certain Provisions. Notwithstanding anything else contained in the Agreement or these Terms, the Definitions, Payment, Intellectual Property, Customer’s Covenants, Limitations of Liability and Miscellaneous sections of these Terms shall survive the termination of the Agreement.

PAYMENT

Fees and Expenses. Subject to the terms and conditions of the Agreement and these Terms: (i) the Customer shall pay to ICS the fees and expenses relating to the Deliverables specified in the Services and Deliverables Schedule; and (ii) other than with respect to Included Services, the Customer shall pay to ICS the Standard Service Fees for Services performed by ICS.

Invoicing. ICS shall provide an Invoice to the Customer at the beginning of the Term for the Initial Payment and upon delivery of the last Deliverable for the balance due for the Deliverables. During the Term, ICS shall provide an Invoice to the Customer for Services performed, other than Included Services, on a monthly basis.

Payment. The Initial Payment is due upon the execution of the Agreement. The Customer shall pay each other Invoice on or before the first day of the month following the month during which the Invoice was issued. Overdue Invoices shall accrue interest on a compounding monthly basis at the rate of two percent (2%) per month. 

Payments to Third Parties. The Customer acknowledges that ICS may engage an agent or subcontractor to perform the Services or to develop and deliver the Deliverables or any part thereof, and that the Customer may be required to pay fees and expenses to the agent or subcontractor in order to permit ICS to perform the Services and deliver the Deliverables. Where a required payment or series of payments to an agent or subcontractor is specified in the Services and Deliverables Schedule, the Customer covenants with ICS to pay that amount or those amounts to the agent or subcontractor at the times specified in the Services and Deliverables Schedule.

Refunds. The Customer may terminate the Agreement within the fifteen (15) days after the Effective Date by written notice to ICS. Where the Customer terminates the Agreement pursuant to this Section, the Customer agrees to pay the Standard Service Fee for all Services performed by ICS prior to such termination. ICS shall issue an Invoice for such fees and expenses and the amount of such Invoice shall be paid out of the Initial Payment, the balance of which shall be returned to the Customer within forty-five (45) days after the termination. Except as contemplated by the immediately foregoing sentence, no refund shall be paid for any Deliverables and Services.

Suspension or Termination for Non-Payment. Where an Invoice is overdue for more than sixty (60) days, ICS may stop work to develop and deliver any undelivered Deliverables, may stop performing Services and may terminate the Agreement immediately upon written notice to the Customer. In the event that ICS exercises its rights under this Section, all Work Product shall remain the property of ICS and ICS shall not be liable for any Losses suffered by the Customer as a result of the exercise by ICS of such rights.

Collections. Where an Invoice is overdue for more than ninety (90) days and ICS engages a collections agency to collect the Invoice, the Customer agrees to reimburse ICS for the costs incurred by ICS in retaining the collections agency and all legal fees and disbursements incurred by ICS in connection therewith.

Taxes. The amounts to be paid by the Customer to ICS herein do not include any Taxes arising as a result of or in connection with the transactions contemplated under the Agreement or these Terms. ICS may collect all such Taxes from the Customer to the extent that ICS is expressly required or permitted by ordinance, statute, regulation or administrative pronouncement to collect the Taxes from the Customer and to the extent that all such Taxes are stated as separate items on an Invoice that shall comply with the requirements of the Applicable Law.

INTELLECTUAL PROPERTY

Ownership of Work Product. The Parties acknowledge and agree that the Customer is the exclusive owner of any Work Product, including all Intellectual Property Rights in and to such Work Product. ICS will fully and promptly, in accordance with the Agreement and these Terms, disclose and deliver to the Customer all Work Product, all in the form (including such format or file type in the case of electronic files) as reasonably requested by the Customer. ICS hereby assigns to the Customer all right, title and interest throughout the world to all of the Work Product, effective as at the time of the Customer’s payment of the Invoice issued for each and all such Work Product. The assignment of the rights to the Work Product shall not apply to the ICS Materials. The provisions of this Section are subject to the Suspension or Termination for Non-Payment Section of these Terms.

Ownership of ICS Materials. The Parties acknowledge and agree that ICS is the exclusive owner of the ICS Materials, including all Intellectual Property Rights in and to such ICS Materials.

Licence Granted by the Customer in Source Information. The Customer hereby grants to ICS a non-exclusive, royalty-free license to copy, use, modify, enhance, make derivative works and otherwise commercially exploit without limitation or restriction Source Information used in connection with the delivery of the Services or production and delivery of the Deliverable. The licence granted by this Section shall terminate upon the termination of the Agreement.

Licence Granted by ICS in Work Product. ICS hereby grants to the Customer a non-exclusive, perpetual, irrevocable, nonterminable, transferable, assignable and royalty-free license to copy, disclose, use, operate, maintain, repair, modify, enhance, make derivative works, license, sub-license and otherwise commercially exploit without limitation or restriction those ICS Materials used in connection with the delivery of the Services or to the extent contained within any Work Product. The foregoing provisions of this Section are subject to the provisions of the Suspension or Termination for Non-Payment Section of these Terms. The Parties acknowledge and agree that the Customer has rights only with respect to the ICS Materials as set forth in the Agreement and these Terms. ICS has and retains all other rights, title and interest in and to the ICS Materials.

CUSTOMER’S COVENANTS

Acceptable Use Policy. The Customer acknowledges each acknowledgement set out in the Acceptable Use Policy and covenants with ICS that it shall comply with the Acceptable Use Policy at all times.

Failure to Comply. ICS reserves the right, without notice to the Customer, to temporarily discontinue any Service, including any web hosting services, and the use of any related Deliverable until any content, activity or behaviour that is in breach of the Acceptable Use Policy is removed or terminated or until any other breach of the Acceptable Use Policy is remedied by the Customer, or to terminate the Agreement if the Customer is unwilling or unable to: (i) remove such content, (ii) terminate such activity or behaviour or (iii) remedy such breach or (iv) fails to comply with the Acceptable Use Policy on more than one (1) occasion. Any suspension of Services or any Deliverable may include the interception and blocking of any content or traffic belonging to the Customer or to the Customer’s users or clients where the Services or any Deliverable are being used unlawfully or not in accordance with the Acceptable Use Policy.  No abatement of fees and expenses shall be made where ICS exercises its rights under this Section.

Changes to the Acceptable Use Policy.

        1. ICS may from time to time amend the Acceptable Use Policy to further detail or describe reasonable restrictions on the Customer’s use of the Services and any Deliverable by publishing a revised Acceptable Use Policy at icscreativeagency.com or, in the event of a material adverse change (as determined by ICS in its sole discretion), by providing the Customer thirty (30) days written notice and delivering a copy of the revised the Acceptable Use Policy.
        2. Any revision to the Acceptable Use Policy shall become effective as to the Customer, on the first to occur of: (i) the Customer’s execution of a new or additional agreement for services or deliverables that incorporates the revised Acceptable Use Policy expressly or by reference, (ii) other than in the case of a material adverse change to the Acceptable Use Policy, thirty (30) days following the publication of the revised Acceptable Use Policy at icscreativeagency.com; and (iii) in the case of a material adverse change to the Acceptable Use Policy, thirty (30) days following the written notice from ICS to the Customer of the material change. 
        3. If the Customer’s compliance with the revised Acceptable Use Policy would adversely affects the Customer’s use of the Services or any Deliverable, the Customer may elect to terminate the Agreement by giving ICS written notice of its objection no later than thirty (30) days following the date that the revised Acceptable Use Policy would otherwise have become effective as to the Customer. If the Customer elects to terminate, it may continue using the Services and any Deliverable for up to an additional ninety (90) days and ICS will not enforce the revision as to the Customer during this time; the Customer will continue to be subject to the prior version of the Acceptable Use Policy. If the Customer chooses to terminate the Agreement under this Section, ICS may elect to waive the application of the material adverse change as to the Customer, and in such event the Agreement and these Terms shall remain in place for the remainder of the Term notwithstanding the Customer’s election to terminate.

LIMITATIONS OF LIABILITY

Limitation of Liability. Except as otherwise specified below in the Limitations of Liability Section of these Terms, neither Party shall be liable to the other Party for consequential, incidental, punitive, or indirect damages (including lost profits or lost savings) arising from, relating to, or in connection with the Agreement or these Terms, even if such Party has been advised of the possibility of or could have foreseen such damages, and ICS’s aggregate liability hereunder shall in no event exceed the total fees paid by the Customer to ICS hereunder. This limitation of liability applies regardless of the form of action, whether in contract, tort, or otherwise.

Disclaimer of Warranty. ICS covenants only to use commercially reasonable efforts to perform the Services and deliver the Deliverables in accordance with the Agreement and these Terms. Notwithstanding the foregoing, the Customer acknowledges that ICS does not guarantee any result, service standard, availability, uptime, performance, accessibility, usability or functionality with respect to the Services or the Deliverables, or that any Service will be performed as and when requested by the Customer, and agrees that ICS shall not be liable in connection therewith. In that regard, ICS NEITHER MAKES NOR GRANTS ANY WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR USE OR PURPOSE, WITH RESPECT TO THE SERVICES OR THE DELIVERABLES. THE EXPRESS TERMS OF THE AGREEMENT AND THESE TERMS ARE IN LIEU OF THE WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. ICS HEREBY EXCLUDES ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE TO THE FULLEST EXTENT PERMITTED BY LAW.

Losses Occasioned by the Customer’s Action or Inaction. ICS shall not be liable for any Losses suffered by the Customer in connection with, directly or indirectly, any of the following: (i) the Customer’s failure to provide Source Information in a timely fashion; (ii) any of the circumstances described in the Limitation Section of the Services and Deliverables Section of these Terms, or the Suspension or Termination for Non-Payment Section or Collections Section of these Terms; or (iii) any of the Customer’s failure to perform its covenants under the Customer’s Covenants Section of these Terms.

MISCELLANEOUS

Time. Time shall be of the essence in all respects of the Agreement and these Terms.

Entire Agreement. The Agreement, including the recitals to the Agreement and its Schedules, and these Terms and its Schedule, constitute the entire agreement between the parties with respect to the subject matter thereof and hereof and supersede all prior negotiations and understandings amongst the parties. No provision thereof or hereof may be amended or waived except in writing.

Severability. Any provision of the Agreement or these Terms which is invalid or unenforceable shall not affect any other provision and shall be deemed to be severable.

Assignment and Enurement. Either Party may delegate, pledge, assign or transfer the Agreement, including these Terms, without the prior written consent of the other Party. ICS may engage any agent or subcontractor to perform the Services or to develop and deliver the Deliverables or any part thereof without the Customer’s prior written consent. The Agreement and these Terms shall enure to the benefit of and bind the Parties and their respective successors and permitted assigns.

Counterparts. The Agreement may be executed in any number of counterparts, and/or by facsimile or email transmission of Adobe Acrobat files, each of which shall constitute an original and all of which, taken together, with these Terms and all Schedules thereto and hereto, constitute one and the same instrument. Any party executing the Agreement by fax or PDF file shall, immediately following a request by any other party, provide an originally executed counterpart of the Agreement.

SCHEDULE TO

ICS CREATIVE SERVICES AGREEMENT 

STANDARD TERMS AND CONDITIONS

Acceptable Use Policy

Privacy Legislation. The Customer acknowledges and agrees that it is the Customer’s responsibility to comply with Privacy Legislation. The Customer acknowledges that any data and other information it manages on behalf of its customers is the sole responsibility of the Customer and further acknowledges that it is the Customer’s responsibility to protect, safeguard and keep confidential all its customers’ data and other information at all times in compliance with Privacy Legislation and accepts full liability for any breach thereof. The Customer expressly acknowledges that ICS shall not have any liability for any of the foregoing and the Customer will indemnify and hold ICS harmless from any loss, cost, damage, liability, or expense (including reasonable legal fees and expenses) arising from or relating to any failure of the Customer to comply with Privacy Legislation. The Customer will execute or provide any certification document that ICS may request in association with Privacy Legislation.

Mail Requirements. In making use of the Services or any Deliverable, the Customer shall comply with CASL and any other Law relating to unsolicited commercial electronic messages. Furthermore, any unsolicited or other bulk email must meet the following requirements: (a) the Customer must have a privacy policy posted for each domain associated with the mailing; (b) the Customer must have a means to track anonymous complaints; (c) the Customer must not obscure the source of its email in any manner; (d) the Customer must post an email address for complaints (such as info@icscreativeagency.com) in a conspicuous place on any website associated with the email, and must promptly respond to messages sent to that address; (e) the Customer’s intended recipients must have expressly given their consent to receive email via some affirmative means, such as an opt-in procedure, and the Customer shall be able to produce the evidence of such consent within seventy-two (72) hours of a request for same by the recipient or ICS; (f) the Customer must use reasonable means to ensure that the person giving consent is the owner of the email address for which the consent is given; (g) the Customer must include the recipient’s email address in the body of the message or the “TO” line of the email; and (h) the Customer must honour revocations of consent or other “unsubscribe” requests, provide Customers with an obvious method for making such requests and notify recipients of having processed such requests.

Offensive Content, Abuse, and Other Prohibited Activities. No content developed, published or otherwise disseminated by or on behalf of the Customer or hosted or otherwise involving ICS, including any website, webhosting or content management services, shall engage in, foster or promote illegal, abusive or irresponsible activity or behaviour, and neither the Services nor any Deliverable may be used in any such manner, including any content, activity or behaviour that:

        1. falsely represents or misrepresents the Customer’s products or services, or is unfair or deceptive under any Applicable Law with respect to consumer protection, including chain letters and pyramid schemes;
        2. publishes, transmits, stores or contains any material that is grossly offensive, including blatant expressions of bigotry, hatred or profanity or content that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion or other characteristic;
        3. promotes or provides instructional information about illegal activities;
        4. promotes physical harm or injury against any group or individual or incites violence, threatens violence, contains harassing content or hate speech, creates a risk to a person’s safety or health, or public safety or public health, compromises national security or interferes with any investigation by any law enforcement agency;
        5. displays material containing obscene nudity or pornographic material, or that streams any live sex acts, even if such material or its display or streaming otherwise complies with all Applicable Laws;
        6. constitutes, depicts, displays, fosters, promotes or relates in any manner to child pornography, bestiality, non-consensual sex acts, or that otherwise unlawfully exploits persons under 18 years of age or such other age of majority as defined in any Applicable Law;
        7. is defamatory, libelous or slanderous;
        8. is otherwise malicious, fraudulent or morally repugnant;
        9. infringes or misappropriates any Intellectual Property Rights or any intellectual property or proprietary information of any third party, including copyright infringement, offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial or registration numbers for software programs, or any type of cracker utilities; furthermore, the Customer may do any of the following: (A) use the Services or any Deliverable to download, publish, torrent, distribute, use, or otherwise copy in any manner any text, music, software, art, image, or other work protected by copyright law or any Intellectual Property Right unless the Customer has permission from the owner of such work to use or copy the work in that manner, or the Customer is otherwise permitted by established intellectual property law to copy or use the work or rights in that manner; (B) use the Services or any Deliverable to publish content intended to assist others in defeating technical copyright protections; (C) use the Services or any Deliverable to display another person’s trademark without permission; or (D) use the Services or any Deliverable to publish another person’s trade secrets, or to publish information in violation of a duty of confidentiality;
        10. violates or is likely to violate any Person’s privacy, or breaches or is likely to breach any Applicable Law, including any data protection Laws, any Privacy Legislation, CASL and any other Law relating to unsolicited commercial electronic messages, or is illegal conduct or solicits conduct that is illegal conduct under Applicable Laws applicable to ICS or any of its contractors or the Customer;
        11. uses any Internet account or computer without the authorization of the owner of such account or computer;
        12. makes or provides any unauthorized access to or use of any data, systems or networks, including any data, system or network of ICS and including any attempt to probe, scan or test the vulnerability of a system or network or to breach any security or authentication measures applicable thereto without the express written authorization of the owner of such system or network; additionally, the Customer may not perform such testing of the Services or any Deliverable without the prior written consent of ICS;
        13. monitors data or traffic on any network or system without the express written consent of the owner of such network or system;
        14. introduces intentionally, knowingly or recklessly, any virus or other contaminating code into any of the ICS Materials, any of the Services or Deliverables or any computer, system or network operated, owned or leased by, or otherwise within the indirect or direct control of, ICS;
        15. collects or uses information, including email addresses, screen names or other identifiers, by deceit, (such as, phishing, Internet scamming, password robbery, spidering, and harvesting);
        16. uses any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
        17. distributes software that covertly gathers or transmits information about a user;
        18. distributes advertisement delivery software unless: (A) the end user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (B) the software is easily removable by use of standard tools for such purpose included on major operating systems (such as the operating system’s “add/remove” tool or similar functionality);
        19. results or is likely to result in any retaliation against any ICS network or website, or ICS or any of its employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS);
        20. is intended to withhold or cloak identity or contact information, including the omission, deletion, forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses;
        21. interferes with service to any user of ICS or any of its contractors or other network, including mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
        22. directly or indirectly results in any of ICS’s or any of its contractors’ IP address or other IP space being listed on any abuse database;
        23. conducts any gambling activity in violation of any Applicable Law, required licenses, codes of practice or necessary technical standards required by the Applicable Law of the jurisdiction in which the Services or Deliverables are hosted or accessed; or
        24. involves advertising that displays or links to any of the foregoing.

No High Risk Use. The Customer may not use the Services or any Deliverable in any situation where the failure or fault of the Services or Deliverable could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, the Customer may not use, or permit any other person to use, the Services or any Deliverable in connection with aircraft or other modes of human mass transportation or nuclear or chemical facilities.

Export Controls. The Customer will comply with any applicable Canadian or other foreign government Laws relating to the exportation and/or importation of the Deliverables (collectively, “Export Controls”). The Customer will not export (directly or indirectly), re-export, divert, or transfer the Deliverables or any materials, items, or technology relating to ICS’s business or related technical data or any direct product thereof to any destination, company, or person restricted or prohibited by Export Controls. The Services and any Deliverable may not be used by persons, organizations, companies or any other legal entity or unincorporated body, including any affiliate or group company, which is involved with or suspected of involvement in activities or causes relating to: illegal gambling; terrorism; narcotics trafficking; arms trafficking or the proliferation, development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles; in each case including any affiliation with others whatsoever who sponsor or support the above such activities or causes. The Customer represents that it is not such a company or person or a person restricted or prohibited by Export Controls. The Deliverables provided hereunder might also contain encryption that is subject to particularly tight restrictions limiting the Customer’s use of the Deliverables beyond the rights of use specifically set forth in the Agreement or the Terms. The Customer will obtain ICS’s prior written consent to relocate the Deliverables to a location other than the location to which it is delivered. If ICS consents to such a relocation, the Customer will be solely responsible for complying with Export Controls and the Customer will indemnify and hold ICS harmless from any loss, cost, damage, liability, or expense (including reasonable legal fees and expenses) arising from or relating to any failure of the Customer to comply with Export Controls. The Customer will execute or provide any certification document that ICS may request in association with the Deliverables and Export Controls.

Operating System End of Life. The use of an end of life operating system or software exposes users to unknown and unpreventable vulnerabilities.  The Customer may not utilize an operating system platform or software which has been declared by its manufacturer or creator, or determined by ICS to be End of Life (“EOL”). An EOL declaration typically means that no further changes to the platform will be made, no new releases or patches created, support for the platform ends, no testing is performed after the EOL date, and no technical support provided.

Cooperation with Investigations and Legal Proceedings. If ICS is legally required to permit any relevant authority to inspect the Customer’s content or traffic, the Customer agrees that ICS may do so; provided however that, where possible without breaching any legal or regulatory requirement, ICS gives the Customer reasonable prior notice of such requirement.  ICS may, without notice to the Customer, report to the appropriate authorities any conduct by the Customer, or its users or its traffic, that ICS believes violates applicable law, and provide any information ICS has about the Customer, or its users or its traffic, to, and cooperate in response to a formal request from, a law enforcement or regulatory agency investigating any such activity, or in response to a formal request in a civil action that on its face meets the requirements for such a request.

Excessive Use of Shared System Resources. The Customer may not use any shared system provided by ICS in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, ICS may require the Customer to repair coding abnormalities in its cloud-hosted code if it unnecessarily conflicts with other cloud customers’ use of the cloud. The Customer agrees that ICS may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.

Third Party Conduct. The Customer is responsible for violations of this Acceptable Use Policy by anyone using the Services or any Deliverable with the Customer’s permission or on an unauthorized basis as a result of the Customer’s failure to use reasonable security precautions. The Customer’s use of the Services and any Deliverable to assist another person in an activity that would violate this Acceptable Use Policy if performed by the Customer is a violation of the Acceptable Use Policy. The Customer must use reasonable efforts to secure any device or network within the Customer’s control against being used in breach of CASL and any other Applicable Laws against spam and unsolicited email, including where appropriate by the installation of antivirus software, firewall software and operating system and application software patches and updates. The right of ICS to suspend or terminate the Services or the use of any Deliverable applies even if a breach is committed unintentionally or without the Customer’s authorization, including through a Trojan horse or virus.

Other. The Customer must have valid and current information on file with its domain name registrar for any domain hosted on the ICS network. The Customer may only use IP addresses assigned to it by ICS in connection with the Services and any Deliverable. The Customer agrees that if the Customer registers a DNS record or zone on an ICS managed or operated DNS server or services for a domain of which the Customer is not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, ICS may modify, transfer, or delete such records or zones. The Customer may not register to use any Services or any Deliverable under a false name, or use an invalid or unauthorized credit card in connection with any Services or any Deliverable.

 

test