IMOGO MOBILE TECHNOLOGIES CORP. STANDARD SERVICES TERMS AND CONDITIONS
1.1 "Agreement" means the on-line Order Form completed by the Client, the standard services terms and conditions and any schedules or appendices
1.2 "Account Number" means the account number used by Imogo to bill and track the Client's Services.
1.3 "BES Agreement" means the terms and conditions that provide support to the Client for use of their Blackberry as applicable and attached as
Schedule B hereto.
1.4 "Client" means the Client as identified on the on-line Order Form.
1.5 "Monthly Fees" means the recurring monthly account fees payable to Imogo by the Client for the Services as selected on the on-line Order Form.
1.6 "Order Form" means the on-line Order Form completed by the client, attached to the standard services terms and conditions.
1.7 "Privacy Statement" means the Imogo privacy statement as set out at www.imogo.com.
1.8 "Services" means the Imogo Sync application selected by the Client as detailed on the on-line Order Form.
1.9 "Terms and Conditions" means the Imogo terms and conditions as set out at www.imogo.com.
1.10 "Technical Support" means the technical support services provided by Imogo to the Client as further described in Schedule A attached hereto.
1.11 "Term" means the term of the Imogo Services Package selected by the Client on the Order Form.
For the purposes of this Agreement:
2.1 A reference to a Part is to a Part of this Agreement, followed by a number or some combination of numbers and letters refers to the section,
paragraph, subparagraph, clause or sub-clause of this Agreement so designated.
2.2 Headings are solely for convenience of reference and are not intended to be complete or accurate descriptions of content or to be guides to
interpretation of this Agreement or any part of it.
2.3 A reference to currency means Canadian Dollars unless otherwise specified.
2.4 A reference to a party, individual or entity includes any successor but does not include any affiliates unless otherwise specified.
2.5 A word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a
corporate entity includes an individual, and vice versa; and
2.6 A reference to "approval", "authorization" or "consent" means written approval, authorization or consent.
Imogo shall provide the Services to the Client for the Term in accordance with terms of the Agreement and the Client agrees to adhere to all terms
and conditions of this Agreement. The Services may be amended or changed by the parties executing a new Order Form.
4. ACCOUNT ACTIVATION
Upon completion of the Order Form, Imogo shall email to the Client providing details of how to configure their device. Imogo shall provide one hour
of technical support free of charge to the Client to assist with device configuration for thirty (30) days following commencement of the Agreement.
5. ACCOUNT FEES
The Client shall pay to Imogo the Fees plus all applicable taxes upon execution of the Order Form. Thereafter, the Client shall pay the Fees
specified in the Agreement in accordance with the terms of the Agreement.
6. PAYMENT OPTIONS
The Client will pay by pre-authorized payment (bank debit), credit card. All payments shall be made in Canadian currency.
7. OVERDUE ACCOUNTS
Where the Client's account is unpaid, Imogo reserves the right to suspend Services until such time as the Client account is fully paid, and the
Client shall have to pay a reconnect fee to reactive their Client Account.
8. CLIENT IN DEFAULT
If the Client is in default of any of its obligations under this Agreement, then Imogo may in its sole discretion do any or all of the following:
(i) without prior Notice suspend access to the Services, (ii) if the Client's default is non-payment of any fees due to Imogo, exercise all the
rights and remedies under applicable law in satisfaction of any Client indebtedness owing to Imogo as well as any costs (including reasonable legal
fees) incurred by Imogo in exercising any remedy under this Agreement, and (iii) if Imogo terminates this Agreement, after such termination is
effective, Imogo may reassign or free data space and IP addresses occupied by the Client.
9. TERM AND CANCELLATION
The licence fee shall be automatically billed monthly on the date of original purchase of the Imogosync Licence.
The licence fee shall be automatically billed annually on the original purchase date of the Imogosync Licence.
Subscribers wishing to cancel their Imogo sync subscription should notify Imogo Mobile Technologies Corp by email at firstname.lastname@example.org.
Cancellations will take effect within 5 days of subscribers notification of cancellation. Imogo Mobile Communications Corp will not credit
subscribers for any unused prepaid licence period.
10. SERVICE OPTIONS AND UPGRADES
Imogo may from time to time make available Service upgrades or enhancements to the Client at its then current Services Fees. These Service options
and upgrades are offered solely at the discretion of Imogo. The Client may choose not to accept Services upgrades or enhancements.
11. PRIVACY AND ACCEPTABLE USE POLICY
The provision of Services hereinunder shalll adhere to all privacy requirements as set out in the Privacy Statement at www.imogo.com. Client shall use the Services hereinunder in accordance with the Acceptable Use
Policy as posted on the www.imogo.com web site and Imogo has the right to terminate the
Client's access to the Services where the Client fails to adhere to the Privacy Statement and or Acceptable Use Policy.
12. THIRD PARTY AGREEMENTS
The Services provided hereinunder to the Client are subject to third party agreements. The Client agrees to abide by the terms and conditions of
all applicable third party license agreements and such third party agreements shall form part of this Agreement.
13. CLIENT DATA
Imogo will store the Client data on secure, encrypted servers in accordance with the storage requirement selected by the Client on the Order Form.
The Client data will be secured with in a secure data storage facility where ingress or regress from the facility is limited and monitored and all
servers are locked in a protective storage unit with security held by Imogo only and to which only Imogo has an encrypted access tunnel to the data
14. WARRANTIES AND REPRESENTATIONS
Imogo warrants and represents that the Services provided hereinunder will provide in a professional manner in accordance with generally accepted
Except as specifically provided in this provision, Imogo makes no further representation, warranty or condition, express or implied, and expressly
excludes all implied or statutory warranties or conditions of merchantability, merchantable quality, durability or fitness for a particular purpose
or title or non-infringement and those arising by statute or otherwise in law or from a course of dealing or usage of trade or that service
including internet connectivity, wi-fi, computer or telephone devices or other third party devices or any third party software provided will be
virus free, operate uninterrupted or error-free.
15. LIMITATION OF LIABILITY
The limit of Imogo's liability in contract, tort (including negligence) or by statute or otherwise to Client (or its Clients) concerning
performance or non-performance in any manner related to this Agreement, for any and all claims will not, in the aggregate, exceed fifty percent
(50%) of the total fees paid by client to Imogo under this Agreement in the immediately preceding month from the date the claim arose. In no event
will Imogo be liable for any lost profits, special, indirect, consequential, incidental or punitive damages.
16. FORCE MAJEURE
Imogo will not be liable for any delay, interruption nor failure in the performance of the Services and or any third party software or third party
device if caused by acts of God, war (declared or undeclared), fire, flood, storm, slide, earthquake, nor other similar events beyond the control
of the party affected ("Force Majeure"). Imogo will use commercially reasonable efforts to eliminate or remedy the Force Majeure. In the event that
Imogo is not able to remedy the Force Majeure, Imogo shall have the right to terminate this Agreement with written notice to the Client.
17. CONFIDENTIAL INFORMATION
The parties agree that they may, in the course of the relationship outlined in this Agreement, acquire certain confidential information that is
proprietary or confidential to the other party. Any and all non-public information in all forms and formats (including, without limitation, written
oral, electronic, automated, audio, video, and image formats) provided by one party and obtained by the other party arising in any way from or as a
result of the relationship outlined in this Agreement shall be deemed to be confidential information ("Confidential Information"). Additionally,
Confidential Information shall include all information that a party advises the other party that it is obligated to a third party to treat as
confidential. Confidential Information shall not include information which is (i) in or becomes part of the public domain other than by disclosure
by a party, (ii) demonstrated to be previously known to a party prior to receipt from the other party, (iii) demonstrated to have been
independently developed by a party outside of the relationship set forth in this Agreement, or (iv) rightfully obtained by a party from third
parties who are not subject to confidentiality obligations regarding the information. The Client agrees and acknowledges that all documentation
pertaining to the Services and intellectual property of Imogo provided by Imogo pursuant to this Agreement is, and shall remain, the sole property
of Imogo during and after the Term of the Agreement and shall be considered Confidential Information. Imogo agrees and acknowledges that all data
belonging to the Client shall be considered Confidential Information. All Confidential Information shall be held confidential by the recipient for
the benefit of discloser and the recipient agrees to exercise in relation to it the same reasonable precautions as it takes to safeguard its own
confidential information, which shall be no less than reasonable care. The discloser acknowledges that certain legal actions including court orders
may require the recipient to release Confidential Information. The recipient will notify the discloser prior to such release if possible or
immediately thereafter provided such notification would not be in violation of law or court order.
The Client hereby covenants and agrees not to transfer or assign its rights granted under this Agreement or any part thereof without Imogo's
express written consent, which consent may be withheld at the sole discretion of Imogo. Any assignment without Imogo's consent shall be void and of
no force or effect. The parties hereby acknowledge and agree that Imogo may transfer or assign its rights under this Agreement to any successor
company on Notice to the Client, and Imogo will cause the successor company to assume the obligations of Imogo hereunder.
19. IMMEDIATE THREATS
If, in the determination of Imogo, acting reasonably, the hardware or software of the Client poses an immediate threat to the integrity of the
Services or performance of the Services of Imogo or the integrity of its Services infrastructure or facilities, or poses an immediate threat to the
safety of any person, then Imogo may perform such work and take such other actions that it may consider necessary without prior Notice to the
Client and without liability for damage to the software or data or for any interruption of the client's (or its clients') businesses. As soon as
practicable after performing such work, Imogo will advise client in writing of the work performed or the action taken. If the action taken was to
the client's benefit (for example disconnection of an infected computer, thereby saving the client data transfer fees) then the action may be
billable at the sole discretion of Imogo.
The Client hereby covenants and agrees to indemnify, defend and save harmless Imogo and its directors, employees, legal representatives, successors
and assigns, and each of them, from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all
liabilities, judgments, losses, damages, costs, charges, lawyers' fees, and other expenses of every nature and character by reason of the Client's
business and/or actions in respect of this Agreement. The Client further covenants and agrees that this indemnification shall survive the
termination or earlier expiration of this Agreement and shall be construed in favour of Imogo.
21. TERMINATION AND SURVIVAL
Either party may terminate this Agreement if the other party (i) commits a material default (which, in the case of the Client, will include any
failure to make any payment when due or which in the case of Imogo, will include failure to perform the Services) and fails to rectify such default
within ten (10) days after being given Notice of such default by the other party, or (ii) becomes the subject of any voluntary proceedings under
any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not
dismissed or withdrawn within sixty (60) days after filing.
Upon termination of this Agreement:
All rights and privileges of the Client will forthwith cease and terminate. The Client will immediately cease using the Services, and using any
Imogo intellectual property;
Notwithstanding any contrary provision contained in this Agreement, the parties will abide by and uphold any and all rights or obligations accrued
or existing as at the date this Agreement is terminated including remedies at law or in equity which may be available for the enforcement of such
rights or remedies, or for the recovery of any monies owing and rights to indemnification.
22.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes every previous agreement, communication, expectation,
negotiation, representation or understanding, whether oral or written, express or implied, statutory or otherwise, between the parties with respect
to the subject matter of this Agreement.
22.2 Severability and Reformation
If any portion of this Agreement is determined to be or becomes unenforceable or invalid for any reason, such portion will be reformed to the
minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. If such
portion cannot be so reformed it will be severable from the remainder of this Agreement and, in its application at that time, this Agreement will
be construed as if it had been executed without the unenforceable or invalid portion.
22.3 Reservation of Rights
Imogo reserves all rights not specifically granted herein.
22.4 Remedies Not Exclusive
The remedies available to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed
or construed to affect any right, which either of the parties is entitled to seek at law, in equity or by statute.
22.5 No Implied Waivers
No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. No consent or waiver, express
or implied, by a party to or of a breach or default by any other party of any obligation of the other party under this Agreement will. Be valid
unless it is in writing, stated to be a consent or waiver pursuant to this clause and executed by each party whose interests are or may be thereby
adversely affected. Be relied upon as a consent to or waiver of any other breach or default of that or any other obligation of the other party.
Constitute a general waiver under this Agreement, or eliminate or modify the need for a specific consent or waiver pursuant to this clause in any
other or later instance.
The parties hereby acknowledge and agree that any and all typographical and clerical errors contained in Imogo's documents will be subject to
correction by Imogo, without liability or prejudice.
22.7 Time of the Essence
Time is of the essence of this Agreement and of the performance of each obligation of each party hereunder.
22.8 Governing Law
This will be governed exclusively by and construed and enforced in accordance with the laws the Province of British Columbia.
22.9 English Language Only
The parties hereto confirm that they wish this Agreement to be written in English only. Les parties aux présentes confirment leur volonté
que cette Convention soit rédigée en langue anglaise seulement.
22.10 Further Assurances
Each party will promptly execute and deliver to the other such further agreements and other documents and do such further acts and things as the
other party reasonably requests to evidence, carry out or give full force and effect to the intent and purpose of this Agreement and to establish
and protect the rights, interests and remedies intended to be created in favour of the other.
The provisions set forth in 18, 19, and 21 of this Agreement will survive termination or expiration of this Agreement.
This Agreement may be executed in any number of counterparts with the same effect as if all parties to this Agreement had signed the same document,
and all counterparts will be construed together and constitute one and the same instruments. All Schedules can be amended from time to time by
mutual agreement of the parties on written notice to the Client.