Web Hosting Agreement
In this document we try to write everything in plain English, and to do that we use terms like “we” and “you” a lot. “We” and “us” means Prestige Digital, “You” in this document is you, our Client.
There is some unavoidable legalese at various places in the document. Sorry. Our attorney required it. If you need assistance translating, just ask.
SmartHosting: Web Site Hosting Service
We use commercially reasonable efforts to make sites that we host available 99.9% of the time during each month in the annual term. If we are unable to meet this service level, you will be eligible to receive a credit to apply to future annual terms based upon the unavailability for the current month that the downtime was experienced. For the purposes of this agreement, unavailability means that either your web site is unresponsive, or your web site returns a server error response to valid user requests for more than 180 seconds of consecutive requests.
Unavailability that is a result of scheduled maintenance is excluded from these conditions and will not be considered for service credit calculations. Scheduled maintenance is defined as maintenance that is announced at least 2 days in advance, and does not exceed one hour in any month. Typically scheduled maintenance occurs in off-peak hours (usually in the early morning).
Service credits will be calculated as a percentage of the bill for the current calendar month that the unavailability occurred. The percentage for the credit will be calculated by dividing the number of minutes of unavailability by the total number of minutes in that calendar month. The customer must request Service credits within 7 days of the unavailability occurring.
The Invoice attached details the annual term of the web hosting services provided to the Client by the Company, including without limitations, the deliverables and specifications thereto, and any and all compensation to be paid for the term of service
Fees and Payments
The parties agree that the Company shall be paid in accordance with the annual invoice for service.
This Agreement may be terminated immediately by either party upon written notice for any of the following:
- (a) upon five (5) days prior written notice by either party to the other party, or
- (b) if the other party defaults in the performance of any material provision of this Agreement, which default is not cured within thirty (30) days after written notice from the non-defaulting party.
Should you wish to cancel your website hosting service during the annual term, you will be refunded for any full calendar months remaining in the term.
Disclosure to Law Enforcement
We may disclose information about our clients to law enforcement agencies without further consent or notification to the client upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.
Any domain names will be transferred to our domain registrar where it will be automatically renewed annually by us and the cost for the registration will be invoice to the client. We are not responsible for suspension or loss of domain names that are not transferred to our domain name registrar. Any time spent reestablishing your site after domain expires is billable at our current hourly rate.
The Client agrees to indemnify and hold harmless Prestige Digital, its subsidiaries, contractors, employees and affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Client’s use of the Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Choice of Law and Forum
This Agreement, and any related Statements of Work, shall be construed in accordance with, and governed by, the laws of the Province of Ontario without regards to Conflict of Law principles. In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Agreement or in the event of a claimed breach of this Agreement, the parties hereto agree that such dispute shall be determined by arbitration conducted by the Canadian Arbitration Association pursuant to its commercial arbitration rules. The arbitration shall be conducted in Hamilton, Ontario, unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.
Refusal or Discontinuation of Service
We reserve the right to refuse, restrict or terminate service to any client for any reason or for no reason at all.
Disclaimer of Warranty
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT SERVER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Damages or Liability
IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR HARM CAUSED BY OR RELATED TO THE CUSTOMER'S SERVICES OR INABILITY TO UTILIZE THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Notwithstanding anything else in this SMART HOSTING Services Agreement, the maximum aggregate liability of Prestige Digital and any of its employees, agents, contractors or affiliates, under any theory of law should not exceed the amount of fees it has collected on the customer’s account in the last six months.
This Agreement, and any Estimates, Invoice or Proposal of Services attached constitute the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and supersedes any and all prior agreements and understandings relating to the subject matter hereof. This Agreement may not be waived, assigned, extended, amended, supplemented or modified orally, but only by a written instrument signed by the party against whom enforcement of any such waiver, assignment, extension, amendment, supplement or modification is sought.
This Agreement may not be changed or modified except in writing signed by the parties.
The parties acknowledge and agree that they have read, understood and have actively negotiated the terms of this Agreement, participated in its drafting and have been represented by legal counsel. Therefore, this Agreement shall not be deemed to be the product of either party and shall not be enforced or interpreted any more stringently or strictly against either party.
Neither the Company nor the Client may assign this Agreement without the prior consent of the other.