This Migration Services Agreement (‘Migration Agreement’) is made and entered into by and between Timely Network Inc. (‘TNI’) and you, the Customer, (‘Customer’) for the purpose of migrating Customer’s data, services, and/or calendar (‘Migrated Data’) from Customer’s Plans such as Trek Web App/ Hosted calendar (‘Current Plan’) to a new plan on Timely Web App (‘Journey Web App’). This Migration Agreement is an amendment to any Agreement between Customer and TNI.
1. Migration Project Scope
TNI will perform migration services (‘Services’) for Customer (‘Migration Project’), as outlined in the Migration Services Order Form and Agreement (‘Order’). This shall serve as the entire scope for the Migration Project (‘Migration Project Scope’) to which TNI will perform Services under the terms of this Migration Agreement.
2. Term of Timely Journey Web App, Price and Estimated Time Allowance
2.1- TNI charges hourly rates for any and all Services performed pursuant to this Migration Agreement (‘Billable Time’). All migration projects will incur at least four (4) hours of Billable Time, and the minimum cost for all migration projects will be US$400.
2.2- TNI’s base rate for Billable Time and the estimated cost for the Migration Project are set forth in the Order.
2.3- Customer agrees and acknowledges that Billable Time and base rate may be increased during the course of Migration Project in the event Migration Project requirements exceed the specifications allowed for in Migration Project Scope. This can result from underestimation of Billable Time and/or technical variables including but not limited to:
- Configuration type(s), setting(s), service level(s) and/or physical location differences between Current Plan and/or Journey Web App environments, including but not limited to OS type/version, database and/or application version(s), name and server setting anomalies, and/or services infrastructure;
- Programmatic dependency of Customer’s applications and/or services;
- Large volumes of Migrated Data;
- Limited and/or no access to third party services, including but not limited to licensed and/or proprietary applications and/or servers;
- Legacy applications not supported at Journey Web App and/or requiring significant programmatic intervention to reconfigure at Journey Web App and/or restoration at Current Plan;
- Current Plan accessibility issues; and/or
- Other unforeseen delays and/or unique technical requirements.
2.4- TNI will not charge Billable Time to Customer when the Order provided by the Customer contains a request of Annual Subscription of Journey Web App. However, TNI has the right of not processing the migration if the Migration Project requirements exceed 4 hours Billable Time, as stated on the item 2.3 above.
Customer understands and acknowledges that, prior to commencement of Migration Project, determinations of precise Migration Project completion, Billable Time requirements and/or any technical variables resulting in additional Billable Time and/or base rate increase are infeasible and that the estimated cost stated above is not a guarantee and/or promise by TNI.
3. TNI’s Migration Project Responsibilities
TNI shall perform the following Services and tasks:
- Request, obtain, and verify Current Plan access details and logins, according to Migration Assessment Plan specifications;
- Set up Journey Web App;
- Oversee and administer Migration Project;
- Remotely access Current Plan, perform a copy and/or backup process of Migrated Data specified in Migration Project Scope and transfer to Journey Web App;
- Set up and reconfigure Migrated Data and restore on Journey Web App;
- Perform cursory initial review of Migrated Data;
- Provide Customer the opportunity to thoroughly test and verify operating functionality of Migrated Data;
- If necessary, provide additional technical services (i.e. troubleshooting, development/programming, revisions, special configurations, etc.) in order to restore all pre-migration functionality on Journey Web App.
If additional technical services are required, Customer acknowledges and accepts that Customer will incur additional time and service fees (‘Additional Fees’);Services will not allow for continuous access to Migrated Data during the Migration Project. Downtime for both the Current Plan and the Journey Web App during the Migration Project should be expected.
4. Customer’s Migration Project Responsibilities
In addition to responsibilities set forth in the Order, Agreement, or any amendment thereto, Customer agrees and acknowledges that Customer shall:
• Represent and warrant that (1) Customer’s website(s) fully complies with any and all applicable laws, including without limitation regulations on advertising (including electronic and online advertising), telecommunications, data protection, protection of consumer and user rights, and/or privacy; (2) Customer is entitled to use and publish all Migrated Data and that such use and/or publication does not infringe any rights of third parties, including without limitation industrial and intellectual property rights; (3)Customer is solely responsible for all Migrated Data content, regardless of format. Customer shall hold harmless and indemnify TNI, its directors, employees, agents and/or representatives from any and all indirect and/or direct damages, losses and/or penalties of any type, including but not limited to legal costs, resulting from the breach of the above representations, warranties, and/or any applicable laws by Customer and/or third parties;
• Sign up on Timely Journey Web App at https://app.time.ly/signup as soon as Customer receives an email instructing Customer to do so;
• Promptly provide TNI with Current Plan access details and logins;
• Cooperate and provide reasonable assistance during Migration Project and/or as reasonably requested by TNI;
• Designate a point of contact (‘POC’) for receipt of any and all of TNI’s operational communications regarding Migration Project and transmission of Customer’s Migration Project decisions, information, approvals, and/or acceptance; provide prior written notice of any POC change, and to use commercially reasonable efforts to minimize any such change;
• Make copy and/or backup of all Migrated Data specified in Migration Project Scope and any other data/services(s)/website(s) or the like residing on the Current Plan;
• Inform TNI in advance if Customer has any external email services or application services outside the access of the Current Plan environment, which are programmatically dependent on Migrated Data and/or any Customer folder(s), application(s), or service(s) which are not a part of Migrated Data and/or any special configurations that are not specified in Migration Project Scope;
• Refrain from making change(s) and/or revision(s) to any Migrated Data during Migration Project, with the exception of any database driven updates that can be synchronized to the Journey Web App, if required, prior to the go-live event;
• Promptly and thoroughly test every function of Migrated Data in the next 48 hours after receiving an email from TNI that the migration has been completed;
• Report any and all errors to TNI discovered during testing, including instructions to demonstrate how the error can be reproduced and, if applicable, visual examples (i.e. screenshots) of such;
• Understand and acknowledge that should Customer fail to promptly/thoroughly complete migration testing responsibilities, a complete re-migration may be required, for which Customer will have to pay Additional Fees;
• Understand and accept that Additional Fees may apply if Customer requires TNI to resolve testing errors;
• Keep all Migrated Data active and accessible on Current Plan for the entire duration of Migration Project and for no less than ten (10) business days following completion of the go live event;
• Understand and accept that, should Current Plan become unavailable or inaccessible within thirty (30) days following the go live event, any Additional Fees incurred during post-migration support shall increase from the base rate set forth herein.
- Understand and accept that external services integrated to Current Plan such as Mailchimp and Ticketing require Customer’s action as soon as the Journey Web App Account has been set up and before the Data migration from Current Plan to Journey Web App. The Customer authorizes TNI to access Journey Web App account and transfer the active newsletters available on the Current Plan account. For Ticketing, the Customer requires to set up the payment method on Journey Web App for sales of current and new tickets.
- Understand and accept Journey Web App operates differently than Current Plan. For example, it doesn’t provide Event Promote, a feature available only on Current Plan. In addition, The Customer will be responsible for setting up Feature Slider manually on Journey Web App. The feature named ‘Front End Submission’ on Journey Web App is a pop-up form and not a stand-alone page. It does not require the audience to sign up with Timely, thus the audience will be able to submit events anonymously to the calendar.
- Understand and accept that if there are any imported feeds from third parties’ calendars to Timely Current Plan, during the migration process to Journey Web App, the imported feeds may not keep the same content and format appearing on the Journey Web App Calendar.
- Understand and accept that TNI’s responsibilities and obligations as set forth herein are dependent upon, among other things, the accuracy, assumptions, and representations made by Customer, the timeliness of Customer’s decisions, and the timeliness of Customer’s performance of Customer’s responsibilities and obligations.
TNI’s nonperformance shall be excused if such nonperformance stems from Customer’s failure to perform Customer’s responsibilities and/or obligations, both express and implied, as set forth herein. Customer agrees and acknowledges that in the event of Customer’s failure to perform, TNI has NO DUTY to incur additional costs (including but not limited to labor and software/hardware costs) in performing its obligations under the Agreement or investigate Customer’s failure to perform. Should Customer fail to perform, Customer agrees to pay TNI the estimated cost set forth in the Order and acknowledges and agrees that this fair and reasonable.
5. Additional Fees
In the event of unforeseen technical variables and/or Customer’s failure to perform, Customer may request TNI to take measures to circumvent, solve, and/or investigate such event, and Customer agrees TNI has no obligation to perform such additional services. Nothing in this Section shall be deemed to require TNI to perform Customer’s responsibilities and/or obligations.Should TNI, in its sole discretion, agree to perform additional services, Customer will be charged and is required to pay Additional Fees. Additional services include but are not limited to:
- Repeated attempts to establish login and/or access to Current Plans, applications, databases, control panels, and/or web/data services;
• Providing consultation;
• Programming, optimization, performance tuning and/or troubleshooting tasks initiated by Customer;
• Correspondence with third-party service providers, affiliates, and/or any other parties on Customer’s behalf;
• Providing instructions and/or guidance to Customer for testing and/or specific migration procedures;
• Reconfiguration and/or restoration services; and
• Any/all similar activities of a support nature
6. Change Management Procedure
After execution of the Order and the Migration Agreement, any changes to the conditions set forth therein must be processed in accordance with the Change Management Procedure detailed below.
• A Project Change Request (‘PCR’) will be the vehicle for communicating change.
• The PCR must describe the change, the rationale for the change, and the effect the change will have on Migration Project, including associated charges.
• The designated POC of the requesting party will review the proposed change and determine whether to submit the request to the other party.
• The PCR must be signed by both parties to authorize implementation of the changes.
TNI makes no guarantees with respect to the Services provided. Customer acknowledges and agrees that any and all materials downloaded or otherwise obtained through the use of the Services is done at Customer’s own discretion and risk.To the fullest extent under applicable law, the Services are provided ‘AS IS.’ TNI hereby disclaims any and all express, implied, and/or statutory warranties, including implied warranties of merchantability, fitness for a particular purpose, non-infringement of third-party rights, and/or any warranties arising from a course of dealing, usage, or trade practice.
Governing Law: The Migration Agreement shall be governed by the laws of the Province of British Columbia in Canada without regard to such State’s or Province’s laws and rules concerning conflicts of laws. Each party agrees that jurisdiction and venue for any and all claims, disputes, and/or other matters arising from the Migration Agreement will only lie in Vancouver, British Canada. If any legal action is brought in Vancouver, British Columbia, to enforce and/or interpret the Migration Agreement, the prevailing party in such action shall be entitled to all reasonable costs to include attorney fees. If either files or brings any such legal action outside Vancouver, British Columbia, the defending party may make a formal demand listing all its reasonable costs and expenses including attorney’s fees to the filing party and the filing party shall fully reimburse the defending party within ten (10) calendar days after receipt of such demand.
Severability: In the event that any term, condition, and/or provision of the Migration Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, and/or invalid in whole or in part for any reason, the remaining provisions of the Agreement shall remain in full force and effect.Survival: All Migration Agreement terms, provisions, paragraphs, and/or sections, which by their nature are intended to survive expiration or termination of the Migration Agreement, shall so survive.
Either party shall be excused from performance to the extent that it is prevented from performing as a result of any act and/or event which occurs and that is beyond the nonperforming party’s reasonable control including without limitation: (i) war; (ii) weather; (iii) utility or telecommunications outages; (iv) unrest or riot; or (v) any action of a governmental entity, provided that the such nonperforming party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such force majeure.
TNI’s routine communications regarding Services and/or legal notices will be sent to the designated primary contact listed on Customer’s Account by electronic mail, except that TNI may give notice of Migration Agreement revisions and/or amendments by posting such notice on Customer’s Account. Customer should send communications to TNI via electronic mail to firstname.lastname@example.org.