6. Equipment.
The Customer shall be responsible for the use
and compatibility of all equipment or software not provided by ChargeGateway.com and shall be liable for all costs to
troubleshoot difficulties in the Services caused by equipment or
software not provided by ChargeGateway.com. ChargeGateway.com
shall not be responsible if any changes in the Services cause
equipment or hardware not provided by ChargeGateway.com to
become obsolete, require modification or attention or otherwise
affect performance of same.
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7. Termination of Services.
ChargeGateway.com reserves the right, upon ten (10) days¦
written notice to the Customer, to terminate this Agreement and
the Services provided hereunder upon a failure by the Customer
to cure any material breach of any term or condition set out
herein. Notwithstanding anything herein, ChargeGateway.com
reserves the right to terminate this Agreement forthwith where
the Customer is using the Services as prohibited in Section 5
hereof; the Customer commits or is subject to an act of
insolvency, in the opinion of ChargeGateway.com, under
applicable law. Termination of this Agreement for any reason
shall not relieve the Customer from any liability, including
amounts owing, accrued hereunder prior to the time that such
termination becomes effective.
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8. Warranty.
ChargeGateway.com shall provide the Services in accordance with
Schedule A attached hereto. Any Warranties contained herein are
in lieu of all other warranties, expressed or implied, including
but not limited to the implied warranties of merchantability and
fitness for a particular purpose.
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9. Liability.
ChargeGateway.com¦s sole obligation under this Agreement is to
furnish the Services. Except as otherwise provided herein,
ChargeGateway.com makes no representations or warranties of any
nature whatsoever, whether expressed or implied, with respect to
the Services including, without limitation, any representation
or warranty with respect to the network transmission capacity of
common carriers or the Customer or the reliability of the
equipment of common carriers or the Customer. The liability of
ChargeGateway.com for claims arising from the provision of
Services hereunder shall be limited to and the Customer¦s
exclusive remedy shall be: (i) the correction of defects of
which ChargeGateway.com has received written notice by the
Customer within thirty (30) days of occurrence; or (ii) where
such correction is not practicable, on equitable credit not to
exceed the charges invoiced to the Customer for that portion of
the Services which were defective.
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10. Limitation on Liability.
ChargeGateway.com, including its suppliers¦ liability to the
Customer, if any, for any cause whatsoever and regardless of the
form of action, shall be limited to those actually proven as
directly attributable to ChargeGateway.com, subject to the
following limitations: (a) ChargeGateway.com shall not be liable
under any circumstances for any lost profits or other indirect,
special, consequential or punitive damages; and (b)
ChargeGateway.com¦s total cumulative liability in respect of all
claims hereunder, for any cause whatsoever and regardless of the
form of action, shall not exceed the lesser of (i) $200 and (ii)
monthly charges paid from the date damages were incurred, not to
exceed 30 days; and (c) in no event will ChargeGateway.com or
its subcontractor be liable for any damages if and to the extent
caused by the Customer¦s failure to perform its
responsibilities;
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11. Indemnities.
The Customer hereby acknowledges that ChargeGateway.com does not
own or have any control whatsoever over the content,
availability, accuracy or any other aspect of any information,
including, without limitation, all data, files, pictures and all
other information or content in any form or of any type,
accessible or made available to or by the Customer or its end
users through the use of the Services ((Information(). The
Customer agrees to indemnify and save ChargeGateway.com and its
suppliers harmless from and against all loss, liability, damages
of any type and expenses, including reasonable counsel fees,
arising from any and all claims in connection with the
Customer¦s or its end users¦ use of the Services, including
without limitation all claims for libel, slander, invasion of
privacy, infringement of copyright, invasion of private records
and all other claims arising from Information transmitted or
made accessible by or to the Customer or its end users as well
as any and all claims for infringement of parties arising from
the use by the Customer of any equipment, software, apparatus
and or systems not provided by ChargeGateway.com in connection
with Services.
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12. Proprietary Rights.
Notwithstanding anything to the contrary in this Agreement,
nothing in this Agreement shall directly or indirectly confer
any title in ChargeGateway.com's property or in any modification
thereof to the Customer or anyone operating under the Customer.
The Customer hereby acknowledges and agrees that it shall have
no right, title or interest in or to IP addresses assigned to
the Customer and ChargeGateway.com may change such number given
reasonable advance notice to the Customer. ChargeGateway.com
shall have no obligation to notify any other party of a change
of IP address pursuant to this Section.
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13. General.
A. The Customer acknowledges and agrees that it does not acquire
any title or property rights in the Services or the intellectual
property related thereto.
B. The Customer shall not assign or transfer this Agreement
or its obligations hereunder or any part thereof without the
prior written consent of ChargeGateway.com. ChargeGateway.com
may, assign this Agreement or its obligations hereunder to an
affiliated company.
C. ChargeGateway.com will not be responsible for performance
of its obligations hereunder where delayed or hindered by
embargoes, strikes, causalities, civil unrest or other events
beyond ChargeGateway.com's control. Should such events continue
for more than sixty (60) days, ChargeGateway.com or the Customer
may terminate this Agreement for the affected Services with no
further liability.
D. This Agreement shall be governed by the laws of the
Province of Ontario and the laws of Canada applicable therein.
This Agreement may not be modified except by written amendment
by the parties. This Agreement constitutes the entire Agreement
between the parties and cancels, replaces and supersedes all
existing and prior agreements and understandings, written or
oral, between the parties with respect to Services. Failure of a
party to insist upon strict adherence to any term hereunder on
any occasion or the waiver of a breach of this Agreement in any
instance shall not deprive the party of the right hereafter to
insist on strict adherence to that term or any other term
hereunder or be construed as a waiver of any subsequent breach,
whether or not similar. Should any provision hereunder be
determined to be void, invalid, or otherwise unenforceable by
any court of component instruction, such determination shall not
affect the remaining provisions of this Agreement which shall
remain in full force and effect.
E. The Customer may not, for commercial purposes, remarket
all or any portion of the Services provided under this
Agreement, or make all or any portion of the Services available
to any person without the prior written consent of ChargeGateway.com.
F. Neither party shall be an agent of the other for any
purpose and shall have no authority to bind the other in any
manner.
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