Terms and Conditions

ACCEPTANCE OF TERMS OF SERVICE

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF 360 VISIBILITY ONLINE SUBSCRIPTION SERVICES (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.

The Customer agrees, without limitation or qualification, that their users will comply with 360 Visibility Online Subscription Services. The customer expressly acknowledges, and represents and warrants that it shall be fully responsible and liable for any and all violations by their End Users of this agreement, including but not limited to any unauthorized use or exploitation by End Users of the software provided by vendors. Failure to comply with the Terms of Service can lead to suspension, termination or revision to the services.

Fees and Payment

Fees The customer is responsible for paying the fees as stated in the accepted order form. Additional services added during a billing cycle will be prorated. Prices for third-party services are subject to their respective pricing policies and will be reflected in our fees. Subscription fees will be adjusted to current market rates at the time of renewal. We may change prices for any renewal term with advance notice of at least 30 days. All fees must be paid in the currency specified in the order form.

Payment Process All fees hereunder shall be paid by pre-authorized debit (PAD). The Customer shall complete the pre-authorized debit form and hereby authorizes 360 Visibility Inc. to electronically charge Customer’s account for payment. Customer authorizes 360 Visibility to (i) make such charges as necessary for payment of current and outstanding invoices; and (ii) make additional attempts to charge should the initial attempt fail.

Invoicing and Payment 360 Visibility Inc. shall invoice the Customer monthly in advance based upon estimated service usage and any optional add-ons selected by the Customer.

Overdue Payments You may dispute any fee or charge in good faith. However, if a payment is later determined to have been due, it shall be subject to a late charge equal to 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is less, from the due date until paid. In addition, you shall pay our reasonable legal fees for collecting any amounts due to 360 Visibility under this Agreement.

Suspension of Service We reserve the right to suspend the Service if any of the following occur: (i) we suspect unauthorized usage of the Customers account; (ii) the Customer subscription services greater than 6 days overdue; or (iii) the Customer is in violation of the Microsoft Customer Agreement (“MCA”) available at Microsoft Customer Agreement. In the event of suspension, we shall not charge you for suspended Services, but you are liable for all accrued liabilities and obligations. We reserve the right to impose a reconnection fee if your access to the Service is suspended and you thereafter request access to the Service.

Term and Termination

Term of Agreement This Agreement commences on the Effective Date and shall remain in effect for (1) year (“Initial Term”). This Agreement shall automatically renew for additional (1) year term (each a ‘Renewal Term”); provided the Agreement shall not automatically renew if the Customer provide us, or 360 Visibility provides the Customer, notice of non-renewal at least (60) days prior to the end of the Initial Term or any Renewal Terms. Other than as expressly set forth herein, the Customer may not cancel the Service without 360 Visibility written consent.

360 Visibility and the Service Provider reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, by providing notice by means of an email message to your administrator e-mail address on record in 360 Visibility’s Customer Account Contact Information, or by written communication sent by first class mail or pre-paid post to your address on record in 360 Visibility’s Customer Account Contact Information. Continued use of the Service after any such changes shall constitute your consent to such changes.

Termination for Cause Notwithstanding, a party may terminate this Agreement: (a) upon 30 days’ written notice of a material breach by the other party if the breach remains uncured at the expiration of such period; and (b) if the other party becomes insolvent or the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Termination for Convenience Notwithstanding, you may terminate this Agreement at any time upon (30) days’ written notice, provided that you pay 360 Visibility an amount equal to lesser of (a) six times the Minimum Monthly Fee set forth in the Order Form, or (b) the Minimum Monthly Fee for each of the remaining months in the Initial Term or Renewal Term, as applicable.

Return of Customer Data Within (30) days following the Customers written request and payment of all amounts the Customer owe to 360 Visibility, so long as the Customer is not in breach of this Agreement, we shall provide the Customer, to the extent technically feasible without undue cost or expense, a file, in a standard format, containing Customer Data in our possession or under our control, in such form as it exists on the date of termination or expiration of this Agreement. Notwithstanding anything in this Agreement or otherwise, we shall have no obligation to maintain or provide any Customer Data more than (30) days after termination or expiration of this Agreement for any reason. Thereafter, unless legally prohibited, we shall delete all Customer Data in our possession or under our control. Furthermore, we reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to maintain or forward any Customer Data.

360 Visibility Responsibilities The Customer may designate up to (2) named “Super Users,” who shall receive unlimited online standard support including access to: (i) Online Help, Knowledge Base and Documentation, (ii) 360 Customer Care Portal and review of issues and status, (iii) e-mail issue submission, (iv) Recorded video education and training materials (v) access to 360 User Group Forums. Super Users will also receive in addition up to (2) hours per month of telephone support during standard business hours. We shall use commercially reasonable efforts to make the Service generally available 99.7% of each calendar month, except for: (a) planned downtime with at least 48 hours’ advance notice and scheduled to the extent reasonably practicable during the weekend hours from 9:00 p.m. EST Friday to 6:00 a.m. EST Monday; and (b) downtime caused by circumstances beyond our reasonable control, including acts of nature, acts of government, flood, fire, civil unrest, war, terrorism, strike or other labor problem not involving our employees, telecommunications or computer failures or delays, and network intrusions or denial of service attacks. We shall use commercially reasonable efforts to maintain the security and integrity of the Service.

The Customer Responsibilities In addition to your other obligations, you are solely responsible for: (a) determining whether the Service shall meet your needs; (b) issuing appropriate secure passwords for Users or asking us to do so on your behalf; (c) selecting and training appropriate individuals to use the Service; (d) all activities that occur under User accounts; (e) using commercially reasonable efforts to prevent unauthorized access to or use of the Service or any Content in whole or in part; (f) notifying us promptly of any actual or suspected unauthorized access/use; (g) abiding by all applicable local, state, national, and foreign laws, treaties and regulations, including those related to data privacy, communications, and the transmission of technical or personal data; (h) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (i) your “Super users” and Users completing all required training; (j) complying with our 360 Customer Care policies, as published from time-to-time, to obtain support and other services under this Agreement; (k) not impersonating another User or providing false identity information for any purpose; (l) providing, installing, and maintaining computer equipment and communications tools and access as we specify from time to time; and (m) establishing adequate backup plans if there is any Service or other malfunction. (n) Customer assumes sole responsibility for the use of all productions and services and any information entered, used and stored thereon, including, without limitation, protection of data from viruses, or any unintended modification, destruction or disclosure, and for the accuracy and integrity of the results from the use of the licensed Microsoft products. 360 Visibility Inc. assumes no responsibility for Customer’s negligence or failure to protect data from viruses, or any unintended modification, destruction, or disclosure.

General (i) This Agreement, including any and all documents incorporated herein by reference, constitutes the entire Agreement between the Customer and 360 Visibility relating to provision of Services. (ii) Headings are used throughout this Agreement for convenience only and no provision, term or condition of this Agreement shall be construed by reference to any heading of this Agreement. (iii) 360 Visibility’s failure to insist on or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision, term, condition or right of 360 Visibility contained in this Agreement. (iv) If any of the terms, conditions or provisions of this Agreement is determined to be void, invalid or otherwise unenforceable by any court of competent jurisdiction, the same shall be severable from the rest of this Agreement and such determination shall not affect the remaining provisions contained in this Agreement. (v) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts of such province shall have exclusive jurisdiction to adjudicate any claim or dispute relating to this Agreement. (vi) Customer may not make any re-sale of any of the Services provided hereunder. (vii) 360 Visibility shall not be liable for any delay or failure in performance of Services due to war, riot, embargoes, strikes, casualties, accidents, fire, earthquake, flood, acts of God, supplier or vendor failure, or other occurrence beyond 360’s direct control.

360 Visibility (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service and any ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the intellectual property rights owned by 360 Visibility.

Indemnity The Customer shall indemnify and hold 360 Visibility and the Service Provider, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim arising from the breach by you or your users of this Agreement, provided in any such case that 360 Visibility and the Service Provider (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release 360 Visibility and the Service Provider of all liability and such settlement does not affect 360 Visibility and the Service Provider’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

Warranty Service provider and 360 visibility and licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service. Service provider and 360 visibility and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and all content is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by 360 visibility and the service provider and its licensors.

LIABILITY IN NO EVENT SHALL 360 VISIBILITY OR THE SERVICE PROVIDER’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR USE OF THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Cyber Insurance: By using our services, you agree to maintain valid and adequate cyber insurance coverage for your business. You also acknowledge and accept full responsibility for any charges, damages, or losses incurred as a result of a cyber attack on your business. You agree to indemnify and hold us harmless from any such claims or liabilities arising from your failure to maintain cyber insurance coverage or your own cyber security measures.

Laws This Agreement shall be governed by the province of Ontario and applicable Canadian federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the provincial courts located in Toronto, Ontario. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between the Customer and 360 Visibility or the Service Provider as a result of this agreement or use of the Service. The failure of 360 Visibility and the Service Provider to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by 360 Visibility in writing. This Agreement comprises the entire agreement between the Customer and 360 Visibility and the Service Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Use of Customer Name

360 Visibility Inc. may use the name of the Customer and refer to the performance of 360 Visibility online services without disclosing any confidential information regarding the Customer, in marketing and publicity materials, as an indication of its experience.

Support Services

1. Subscription Support Scope - 360 will provide break/fix web support for cloud subscription services purchased via our customer portal
2. Microsoft Online Services Support
   1. All support for Microsoft Online Services are subject to Microsoft’s terms and conditions and service level agreements
   2. 360 may liaise with Microsoft Support on behalf of the customer to ensure prompt resolution to service issues using reasonable efforts. At times, the Customer may be requested to work with Microsoft in providing support details including but not limited to:
      1. Diagnostic Tools/Logging data
      2. Remote Access via Support Session as deemed necessary
      3. Screenshots
3. 360 Support Days/Hours – between the hours of 9 AM and 5 PM EST, Monday through Friday, excluding weekends and Ontario statutory holidays
4. Standard After-hours Support - Available for critical outages only. 360 will escalate emergency support requests to Microsoft 24x7 at no charge to the customer for issues that prevent you from accessing or using your services or data, severely impact deadlines or profitability, or affect multiple users or services. The customer will be marked as the primary contact and will work with Microsoft support representatives directly.
5. Remote Support – 360 will, upon request by Customer and subject to Customer’s security requirements, access Customer’s system via secure internet technologies, to diagnose the source of Customer identified problems with the Software and assist in the resolution thereof.
6. Submission of Service Requests – Customer may submit service requests electronically via our web based customer care portal. The contact information is as follows:
   1. Support Website – 360 Visibility Support
   2. Azure/Office 365/Licensing/Service Availability Support – itsupport@360visibility.com
   3. Dynamics Business Central Extension Support - bcsupport@360visibility.com
      *For email submission, you must first register your email address with our support website
7. 365 Monogram – 360 will provide support to ensure email signatures:
   1. Are updated at least once every 24 hours
   2. Contain accurate information
   3. Are deployed to Exchange Online for Outlook on the Web
   4. Are properly uploaded to an online storage account for use by end-users

Excluded Support Services

1. Root cause analysis of online service disruptions
2. Deployment of 365 Monogram email signatures to end user desktops/devices
3. 360 will not guarantee Microsoft support response times, renumeration
4. Microsoft online service updates, or service availability for Microsoft related services
5. Support beyond 2 hours of effort per incident.
6. Application or service customizations, development, and consultative services
7. Dynamics 365 Application Support
8. All non-critical after hours support

*Additional hours are available upon request

Service Levels

1. 360 will assign a reported incident with a unique support number. If 360 determines that the reported incident is a fault or error with the Products and is within the scope of it will:
   1. Categorize the incident in accordance with the incident categories detailed below; and
   2. Deliver Solutions in accordance with the response times detailed below.
2. “Solutions” are fixes or workarounds that eliminate the incident or move the incident into a lower incident category, which are ordinarily provided remotely (but may be provided onsite), and which may (or may not) include Dynamics making available to the Customer new service packs in accordance with the provisions of the license and maintenance agreement agreed between the parties.
3. When a Solution moves an incident into a lower incident category, the response times of that lower incident category shall apply from the moment that the incident is re-categorized.
4. Incident categories and responses:
   1. System Down (Urgent)
      1. 360 will use reasonable efforts to start work within 1 hour.
      2. 360 will use reasonable efforts to provide a Solution within 8 hours of starting work.
   2. Business Critical
      1. 360 will use reasonable efforts to start work within 2 hours.
      2. 360 will use reasonable efforts to provide a Solution within 16 hours of starting work.
   3. Normal
      1. 360 will use reasonable efforts to start work within 8 hours
      2. 360 will use reasonable efforts to provide a Solution within 40 hours of starting work.
   4. Low
      1. 360 will use reasonable efforts to start work within 24 hours.
      2. 360 will use reasonable efforts to provide a Solution within 80 hours of starting work.