FinestShops Managed Hosting SLA

Accounts not using our High Availability Transaction monitoring service

FinestShops guarantees our network and hardware will be available 99.99% of the time in a given month, excluding scheduled maintenance. In the event of unscheduled downtime, a customer will receive a credit of 5% of the monthly fee for every 30 minutes of downtime, up to 100% of the monthly fee for the affected server.

Accounts using our High Availability Transaction monitoring service

FinestShops guarantees our network and hardware will be available 99.99% of the time in a given month, excluding scheduled maintenance. FinestShops guarantees a user can view the home page, test product, or control page, open the checkout page. In the event of unscheduled downtime, a customer will receive a credit of 10% of the monthly fee for every 15 minutes of downtime, up to 100% of the monthly fee for the affected server.

Terms of Service

This Terms of Service Agreement (“Agreement”) is an agreement between FinestShops Inc. (“Finestshops”) and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by client, the “Order Form”), personal jurisdictional defenses and applies to the purchase of all services (collectively, the “Services”) ordered by client. Such a party is referred to in this Agreement as “Client”.

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING FINESTSHOPS’S ACCEPTABLE USE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

Company and Client may also be referred to herein as “Party” and collectively as “Parties.” These terms, along with the current proposal executed by the Parties, shall govern the services provided by COMPANY to Client and define the Parties’ obligations with respect to those services.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Term and Termination. The term of this agreement shall commence on the Effective Date and shall continue for 1 month. Upon the expiration of the initial term or any subsequent term, this TOS shall automatically renew for an additional term of 1 month, unless either Party gives five (5) days written notice of non-renewal to the other Party. Either Party may terminate this TOS by giving five (5) days written notice to the other Party. A Party may further terminate this TOS for breach in the event that the breaching Party fails to cure such breach within fifteen (15) days after receipt of notice thereof.

2. Services. COMPANY will provide services as agreed upon from time to time by the Parties pursuant to an executed estimate. At the time that Client and COMPANY agree to specific services to be provided by COMPANY under this TOS, the parties shall enter into a separate estimate for such services as set forth in the sample form attached hereto as Exhibit “A”, which shall contain all the additional terms and conditions regarding the services and project specifications, deliverables to be furnished, time requirements and compensation. Such additional estimate(s) will become part of this Agreement upon signing by COMPANY and Client. Client further agrees that any notices (except legal notices) relating to the services, including but not limited to, estimates, purchase orders, change orders, invoices, proofs and approvals may be accepted by an authorized representative of Client via electronic mail, which acceptance shall be of equal and binding effect as if executed in a written instrument by Client.

1. Client Obligations. In addition to any obligations set forth in an estimate, Client shall (i) timely provide Client materials necessary for COMPANY’s performance of its Services; (ii) ensure that Client stakeholders are available and responsive over the course of the project; (iii) ensure that all Client feedback and approvals are provided through a single point of contact; and (iv) provide any access necessary for COMPANY to perform its services.
2. Deliverables. For this TOS, Deliverables may include but are not limited to, graphics, designs, content, and other intellectual property developed or created by COMPANY while providing services under this TOS. COMPANY does not warrant or represent, and hereby disclaims any and all warranties and representations, that the Deliverables, and any specifications and/or recommendations associated with the Deliverables: (i) will not infringe any valid and subsisting intellectual property rights owned by any third parties; (ii) comply with any applicable laws; or (iii) are appropriate or suitable for their intended purpose. Client is and shall remain solely responsible for ensuring that the deliverables comply with all applicable laws, rules and regulations.
3. Schedule and Acceptance. COMPANY shall make the Deliverables (as defined in Section 2(b) and the applicable estimate) available for Client’s review and acceptance in accordance with the timeline set forth in the Schedule. Client will have the defined period of time (“Acceptance Period”), as found in the correlating estimate, to review and evaluate each Deliverable to assess whether it meets any applicable Specifications and industry standards for quality. If Client rejects a Deliverable (“Reject”) during the Acceptance Period, Client and COMPANY shall mutually agree, in writing, to: (i) extend the time for COMPANY to provide a revised Deliverable for acceptance in accordance with this Section, or (ii) modify the applicable Specifications. At the expiration of the Acceptance Period, COMPANY will notify Client in writing in the usual course of communication that COMPANY will continue with the current Deliverable and payment milestone schedule and that silence is deemed acceptance of the prior Deliverable. If Client notifies COMPANY of rejection of the Deliverable after the Acceptance Period has closed and such notice creates a need for stoppage of work, the Client recognizes that COMPANY may need to submit a Change Order in accordance with Section 2(c) that may affect project costs and timelines.

3. Modifications. If Client wishes to initiate changes to the Specifications (as defined in Section 11 herein) in an associated estimate, they shall submit a written request to COMPANY to do so. The request will set forth the nature of Client’s proposed changes to the Specifications. COMPANY shall complete and return to Client a written document (“Change Order”) setting forth (i) a written description of changes to the Specifications, (ii) any changes to the Schedule, (iii) any changes or additions to the Deliverables and (d) any changes or additions to the fees. A Change Order will be binding only if signed by both parties. Any and all Change Orders will be governed by the terms and conditions set forth in this Agreement, and are hereby incorporated by reference. Any additional Deliverables or changes to the “Work Product” as defined in Section 11 herein) described in the Change Order will be subject to the acceptance provisions, as described in Section 2(c) above.

4. Payment Terms. Client shall pay COMPANY the fees set forth in the estimate attached as Exhibit A and subsequent attached and incorporated estimateS, and on the terms set forth therein.

Time and Materials Basis will be billed at an hourly rate specified in applicable estimate(s). Amounts listed in the estimate(s) are estimates for Services and are non-binding. COMPANY shall invoice the Client for fees and expenses monthly for the previous month. COMPANY shall maintain adequate records to support expenses claimed.
Fixed Price Projects and Retainer Based Projects will be invoiced based on Deliverables or milestones as specified in the applicable estimate.
Emergency Work or Support is work or support performed: a) during the extended business hours of Monday-Friday 6:00 p.m. – 8:00 a.m., b) the weekend (Saturday or Sunday), on a holiday, 3) or with less than forty-eight (48) hours notice before work needs to be completed. A premium of two (2) times the hourly rate shall apply to Emergency Work or Support.
Payment. Client shall effect payment for invoices issued in accordance with these terms within fifteen (15) days from the date of the invoice. The payment shall be made by the credit card, mailed check or wire transfer of funds to the Bank account specified by COMPANY.
Discrepancy. All invoices shall be delivered to the Client, who shall notify COMPANY of any discrepancies in the invoices within 15 days from the date of receipt thereof.
Taxes. COMPANY shall be solely liable for any and all taxes based on or measured on COMPANY’s income. If COMPANY is required to collect taxes for products or services in your location, we will specify and include that tax as a charge on the applicable invoices.
Early Termination. In the event that Client cancels or terminates this TOS or any estimate, and/or work that has been done prior to the termination, Client agrees to pay all fees and costs incurred through the date of termination, any future non-cancelable commitments incurred after the termination becomes effective, and Client shall pay COMPANY the early termination fee set forth in the estimate or, if none, an amount equal to twenty-five percent (25%) of the fees that otherwise would have been charged for the canceled portion of the project. This obligation shall be in addition to, and not in lieu of, any other remedies Company may have against Client under applicable law for Client’s cancellation or termination of the TOS or estimate.
Collection Costs. In the event of a breach of the payment terms of this TOS and/or any estimate, Client shall indemnify COMPANY for all costs and expenses relating to the enforcement of the payment terms of this TOS or any estimate and/or all costs and expenses incurred by COMPANY in seeking collection of any amounts owed by Client to COMPANY, including, but not limited to, collection costs, attorney’s fees and court costs. In addition, interest at the lesser of the rate of 18% per year, or the maximum amount permitted by STATE law, shall begin to accrue beginning on the day after payment is due. Notwithstanding any provision of this TOS to the contrary, it is the intent of the Parties that COMPANY shall never be entitled to receive, collect or apply as interest any amount in excess of the maximum rate of interest permitted to be charged by applicable law; and in the event COMPANY ever receives, collects or applies as interest any such excess, such amount which should be excessive interest shall be deemed partial prepayment of an invoice and treated as by the Parties.
Non-Refundable. Client expressly agrees that one hundred percent (100%) of the fees associated with COMPANY’s services are non-refundable.
Expenses. Client expressly agrees to advance or reimburse COMPANY for all out-of-pocket costs and expenses incurred by COMPANY in the performance of the services hereunder, including, without limitation, travel, production and external consulting services, incurred by COMPANY during the term of this TOS.

5. Ownership.

“COMPANY Tools”, Deliverables, all TOStware programs, program documentation, system documentation, test data and testing methodologies along with all other information and documents generated by COMPANY in the creation of the Work Product shall be the exclusive property of COMPANY.
To the extent that intellectual property owned by COMPANY (“COMPANY IP”) is used in the Deliverables, COMPANY shall grant to Client a non-exclusive, perpetual, royalty-free license to use such COMPANY IP which is embedded in the Deliverable. Such license shall not include the ability to sell, sub-license, assign or otherwise transfer rights to such COMPANY IP to any third party. The parties shall expressly agree to the use and identification of such COMPANY IP in the Statement of Work.
Upon receipt of final payment, COMPANY agrees to grant Client a non-exclusive, unconditional, perpetual, royalty-free license to use any COMPANY IP not identified in the applicable estimate that is in any manner connected to or arises from anything provided to Client under this Agreement.

6. Open Source TOStware Licensing. Notwithstanding anything in this Agreement to the contrary, Client acknowledges and agrees that its rights, title, and interest to any “Open Source software” included in the Work Product shall be solely the license to such code listed in the Open Source software documentation and distributed as part of the Services by COMPANY.

7. Indemnity. Client shall indemnify, hold harmless and defend COMPANY and its officers, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings: (a) for libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with any service provided; (b) arising or related to Client’s breach of this TOS; and (c) arising or related to any injuries, death, or losses resulting from Client’s or a third party’s use of any deliverables furnished hereunder “Indemnified Claim.” Client shall provide COMPANY prompt notice, within 30 days of its discovery, of a potential Indemnified Claim. Notwithstanding any of the foregoing, COMPANY shall have the right to take sole and exclusive control of its own defense at its own expense, if it reasonably believes that it must do so to protect its business, goodwill, or reputation.

8. Promotion. For the term of this TOS and following termination hereof, Client authorizes COMPANY to post samples and excerpts of the creative and other deliverables (which may incorporate Client’s name, logo or other intellectual property) created in connection herewith (including, but not limited to, photographs, video footage, digital clips and images, renderings, and artwork) on its website, social media, and in its marketing materials, etc., granting to COMPANY a perpetual, royalty-free license to utilize such materials for the marketing and promotion of COMPANY goods and services.

9. Confidentiality. When used in this Agreement, the term “Confidential Information” shall mean the terms of this Agreement, the terms of any estimate, change order, electronic correspondence approvals, and all proprietary information, all source code of any COMPANY Tools, data, trade secrets, financial and business information, and all other information of any kind whatsoever, which a Party designates (“Discloser”) as confidential in writing, to the other Party (“Recipient”), or to which the Recipient has access, in connection with discussions, negotiations and performance between and by the Parties. Each party agrees to use the other Party’s Confidential Information solely for the purpose contemplated by the estimates and this TOS. Confidential Information shall not be released by the Recipient to anyone except an employee or agent of such Recipient who has a need to know the same, and who is bound by confidentiality obligations at least as strict as those contained herein. Without limiting the foregoing, each party shall treat the Confidential Information of the other party with at least the same degree of care it uses to prevent the disclosure of its own Confidential Information, but in no event less than reasonable care. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the Confidential Information.

10. Non-Solicitation. Client hereby agrees that during the term of this TOS and for a period of two (2) years thereafter, Client shall not, directly or indirectly, without the prior written consent of COMPANY: (a) solicit, induce, or attempt to solicit or induce any officer, director, employee, contractor or client (prospective or contractual) of COMPANY or any of its subsidiaries, successors or assigns to terminate his, her or its employment, contract or negotiations with COMPANY or its subsidiaries, successors or assigns or otherwise encourage such person or entity to leave or sever his, her or its relationship with COMPANY or its subsidiaries, successors or assigns for any reason. As liquidated damages for breach of this provision, the Client shall pay 50% of the total compensation paid to the subject employee in the twelve months preceding the breach to COMPANY (the “Conversion Fee”).

11. Definitions. The following terms have the meanings given:

“Client Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Client to be used by COMPANY in connection with the preparation of or incorporated into the Deliverables.
“Deliverables” means the final versions of materials produced and delivered by COMPANY pursuant to this agreement. Deliverables may include Client Materials, COMPANY Tools, Third-Party Materials, and Work Product.
“Documentation” means all manuals, instructions, specifications, and other documents and materials, in any medium, that describe the functionality, components, features, or requirements of the Project, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof. These may fall into three (3) categories, (i) the original Open Source documentation, (ii) other Third-Party software that is being integrated by COMPANY, (iii) customized Documentation requested by the Client in an applicable estimate.
“COMPANY Tools” means COMPANY’s intellectual property (including its designs, methods, software, and trade secrets) that either preexist this agreement or are developed by COMPANY other than in providing services for Client under this agreement. COMPANY Tools includes any improvements that are not uniquely applicable to the Deliverables.
“Open Source Software” means any third party open source, community or other free code, libraries or software of any type, including without limitation, any code that is made generally available on the Internet without charge (such as, any code licensed under any version of GNU, GPL, or LGPL licenses), and any derivative works to the same that require as a condition of use, modification, and/or distribution of such code, that the code or other TOStware combined and/or distributed with it be: a) disclosed or distributed in source code form; b) licensed for the purpose of making derivative works; or c) redistributable at no charge.
“Specifications” are functional or technical specifications for work described in an estimate or that have been otherwise agreed to in writing by Client and COMPANY.
“Third-Party Materials” means any and all materials belonging to third parties that are incorporated into the Deliverables, including without limitation open source software, fonts, and stock images.
“Work Product” means any and all materials, including but not limited to, technology prepared for Client by COMPANY in the course of performing the services pursuant to this agreement.

12. Governing Law. This TOS shall be governed by and construed in accordance with the laws of the Province of Ontario without resort to the rules governing conflict of laws. Parties and Signor agree that the State and Federal Courts situated in Toronto, Canada, ON shall be the exclusive venue of any litigation or special proceeding to resolve any dispute or claim arising from, related to or connected with this TOS, including any claims based upon statute, common law or rule. The Parties expressly waive any objection to such forum based upon venue or forum non-conveniens or inconvenient forum.

13. Attorneys’ Fees. In the event Company commences legal action to enforce any part of this Agreement, COMPANY shall be entitled to recover attorneys’ fees, court costs and other expenses even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to appeals), in addition to any other relief to which COMPANY may be entitled.

14. Notice. Any notice required or permitted to be given herein (except for those permissible by electronic communication pursuant to Section 2) shall be deemed to have been sufficiently given or served if delivered personally or if sent by courier or delivery service or by registered or certified mail to the Party designated below, three days after the same was delivered to such courier or delivery service or deposited with the mail, postage and charges prepaid, addressed to such Party at the address set forth in the initial paragraph of this TOS.

The notices shall be delivered to the following: FINESTSHOPS INC. 400 Applewood Cresc, Suite 100 Vaughan, ON | L4K 0C3 | Canada

Any change in the address of one Party shall be communicated in writing to the other Party within 30 days of the change.

15. Warranty.

Client warrants that the Client Materials will not infringe any third-party intellectual property rights, any rights of publicity or privacy or violate any applicable law.
The services provided by the COMPANY, their use and the results of such use are provided “As-Is.”

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. COMPANY DOES NOT WARRANT OR GUARANTY THE SUCCESS OR RESULTS OF DELIVERABLES OR THE SERVICES. COMPANY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. COMPANY WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.

16. Limitations of Liabilities. If a problem should arise, the COMPANY will work together with the Client to promptly resolve the matter, however, CLIENT HEREBY AGREES THAT COMPANY’S TOTAL AGGREGATE LIABILITY TO THE CLIENT AND ALL THIRD-PARTIES FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF THIS TOS FROM ANY CAUSE OR CAUSES INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, STATUTORY CLAIMS, BREACH OF CONTRACT, BREACH OF WARRANTY (NO WARRANTY BEING IMPLIED) AND ALL OTHER CAUSES, IS LIMITED TO THE AMOUNT OF FEES PAID TO COMPANY BY OR ON BEHALF OF CLIENT UNDER THE CORRESPONDING estimate GIVING RISE TO SUCH CLAIM. FURTHER, THE CLIENT HEREBY WAIVES ANY CLAIM TO CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES. THE TERMS AND PROVISIONS OF THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS TOS. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section, COMPANY’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, COMPANY’s liability limits and other rights set forth in this Section apply likewise to COMPANY’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

17. Force Majeure. Except with regard to payment obligations, either Party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the Party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software or products; acts of God or of the public enemy; Canada or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; epidemic.

18. Conflict. In the event of any conflict between the terms or provisions of this TOS and any estimate, the terms and provisions of the estimate shall govern.

19. Severability. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed and voluntary allocation of all risks (both known and unknown) associated with the transactions contemplated by this TOS. All terms are inserted under the condition that they are valid in law. In the event that any provision of the TOS is held invalid or unenforceable by a court with jurisdiction over the Parties to the TOS, (i) such provision will be restated to reflect as nearly as possible the original intent of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the TOS shall remain in full force and effect.

20. Waiver. The failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or supplementation of any provision of this Agreement will be effective only if it is in writing and signed by both parties.

21. Assignment and Succession. Except as expressly set forth herein, this TOS may not be assigned by either Party without the prior written consent of the other and shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns; provided, however, that COMPANY may assign its rights and/or obligations hereunder to a subsidiary or affiliate without violating this provision.

22. Section and Paragraph Headings. The section headings contained in this TOS are for reference purposes only and shall not affect in any way the meaning or interpretation of this TOS.

23. Absence of Third Party Beneficiary Rights. The parties to this Agreement are independent contractors, and no COMPANY, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. No provision of this TOS is intended, nor will be interpreted, to provide or to create any third party beneficiary rights or any other rights of any kind in any Client, customer, shareholder, employee, partner of any party hereto or any other person or entity. Neither party shall have the power to obligate or bind the other party.

24. Counterparts. This TOS may be executed in any number of counterparts, each of which shall be deemed original and to be one and the same instrument.

25. Authorship. The parties acknowledge that this Agreement is the result of negotiations between the parties and will not be construed in favor of or against either party by reason of authorship.