TERMS OF SERVICE
This contract (“Agreement”) is entered into as of the date the Service Agreement Form is signed, by and between CanTrust Hosting Co-operative (“Provider”), with its principal place of business located at #312 – 207 Hastings St. W, Vancouver BC V6B 1H7 and the client whose name and signature appear on the Service Agreement Form (“Client”), with its principal place of business located at the address listed on such form and shall be effective as of the date the Service Agreement Form is signed (the “Effective Date”).
WHEREAS, Provider is engaged in the business of providing Internet web site hosting and related services;
WHEREAS, Client desires to retain Provider to perform the services provided for in this agreement.
NOW, THEREFORE, Provider and Client agree as follows:
- Scope of Services
Provider will provide the services set forth in the Service Agreement Form (the “Services”). Hosting services will be provided according to the terms described in the Service Level Agreement.
- Price and Payment
- Client will pay Provider for Hosting Services per the Service Agreement Form, in accordance with the terms set forth below. Client will pay (a) hosting fees in advance, (b) fees for other goods or services as invoiced, (c) any security deposit as set forth in any attachment to this agreement. Provider may change the prices charged for the services upon forty-five (45) days written notice to Client, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time. Email notice and/or posting to the Provider’s website shall constitute sufficient notice.
- Services will be invoiced monthly.
- Payment is due thirty (30) days after date of invoice. Client may not withhold any amounts due hereunder and Provider reserves the right to cease work without prejudice if amounts are not paid when due. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one half (1.5) percent per month or fraction thereof until paid.
- Term and Termination
- Hosting Services will commence on the Effective Date of the Service Agreement Form and will extend for a period as defined on the Service Agreement Form and will automatically renew for an equal period thereafter, unless earlier terminated as provided herein. After the initial contract term, Client may terminate this Agreement without cause upon at least fifteen (15) days written notice to Provider. Provider may terminate this Agreement without cause upon at least sixty (60) days written notice to Client. Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fifteen (15) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedies for breach.
- If Client’s account is suspended due to lack of payment, Client will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.
- Customer Service
Provider will provide to Client reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but will not assist with any services that are not maintained or controlled by Provider.Emergency customer service requests will be responded to within 4 hours of them being reported by e-mail, telephone, or support ticket system. Regular service requests will be responded to during business hours, within one business day.
- Client’s Warranties and Obligations
- Client is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by Provider. Client agrees to adhere to Provider’s Acceptable Use Policy, a copy of which is made available to the Client at signup time and is also available online at www.cantrusthosting.coop. The Acceptable Use Policy may be modified from time to time in Provider’s sole discretion. Client’s continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute Client’s acceptance of the modified terms. Failure by Client to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.
- Client hereby warrants to Provider, and agrees that during the term of this Agreement it will ensure that (a) Client is the owner or valid licensee of all data and/or content it will upload in conjunction with the Services (the “Content”), and that Client has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Provider to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) Client’s use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Client will comply with all applicable laws, rules and regulations regarding the Content and will use the services only for lawful purposes; (d) Client has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
- Client will cooperate fully with Provider in connection with Provider’s performance of the Services. Client will immediately notify Provider of any change in Client’s mailing address, telephone, e-mail or other contact information.
- Ownership of Intellectual Property
- Client hereby grants to Provider a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, and transmit the Content; and (b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, Provider does not acquire any right, title or interest in or to the Content, all of which will remain solely with Client.
- Provider will only distribute, publish, publicly display, publicly perform or hyperlink the Content (for example, describing and linking to the Content on the CanTrust featured customer page) with prior written consent from the Client.
- Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Client sends to Provider relating to the Services will be treated as being non-confidential and non-proprietary. Provider may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
- Provider’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Provider. Client will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Provider. Provider will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Provider to Client. Provider may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
- Provider hereby grants to Client a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use the provided technology solely for the purpose of accessing and using the Services. Client may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from Provider to Client any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with Provider. Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
- Warranty and Disclaimer
Provider warrants the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. Client must report any material deficiencies in the Services to Provider in writing within ninety (90) days of Client’s discovery of the deficiency. Client’s exclusive remedy for the breach of the above warranty will be the re-performance of the defective services within a commercially reasonable time, or any service credit set forth in any attachments to this agreement. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.
- Limitation of Liability
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the Hosting Services, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages.
- Indemnification of Provider
Client will indemnify and hold Provider harmless against any claims incurred by Provider arising out of or in conjunction with Client’s breach of this Agreement, as well as all reasonable costs, expenses and attorneys’ fees incurred therein, to the extent allowable by the province of British Columbia. Provider’s total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Client to Provider during the six (6) month period prior to the date the claim arises.
- Confidential Information
- All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Provider and will not be disclosed or used by Provider except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
- All information relating to Provider that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement.
- These obligations of confidentiality will extend for a period of one (1) year after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
- Relation of Parties
The performance by Provider of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Provider and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
- Employee Solicitation/Hiring
During the period of this Agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor or former subcontractor of the other without written consent from the former employer party. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator, in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of Canada. The arbitration will be held in British Columbia, Canada. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
- Attorneys’ Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
- Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
- No Waiver
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
- Entire Agreement
This Agreement together with any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
- Electronic Delivery of Counterparts
This Agreement may be executed in counterpart and such counterparts together shall constitute a single instrument. Delivery of an executed counterpart of this Agreement by electronic means, including by facsimile transmission or by electronic delivery in portable document format (“.pdf”), shall be equally effective as delivery of a manually executed counterpart hereof. The parties acknowledge and agree that in any legal proceedings between them respecting or in any way relating to this Agreement, each waives the right to raise any defense based on the execution hereof in counterparts or the delivery of such executed counterparts by electronic means.