Web Hosting Agreement
In the Agreement, “we”, “us” and “our” refer to theHost, “you” or “your” refers to theClient.
The “Service” contracted for in this agreement is web-hosting. Web-hosting is the provision of resources on the Internet where your website information is stored for public access. There is no transfer of ownership of technology, Intellectual Property or rights to resell.
As consideration for the Services, you agree to pay to us all applicable fees for access to our WebPowerUp Dashboard and modules for the service package indicated. All fees payable hereunder are non-refundable.
Accuracy of Information
As further consideration for the Services, you agree to:
i. Provide current, accurate and complete information about you (“Account Information”); and
ii. Maintain and update this information as needed to keep it current, complete and accurate.
By transacting for this Service, you represent that your Account Information is accurate and complete.
Term of Agreement
You agree that this Agreement will remain in full force during the period paid for by you. Under usual circumstances, either party may cancel the service with thirty (30) days’ notice to the other party. While every reasonable effort is made to contact the Client when services are unused and/or unpaid, if this situation persists for a period exceeding 7 days, service may be cancelled by the Host without formal notice.
Modifications to Agreement
You agree, during the period of this Agreement, that we may:
i. Notify you up any upcoming revised terms and conditions of this Agreement; and
ii. Change the service provided under this Agreement.
We will notify you in advance of any change in terms of agreement and they will take effect upon renewal of licence contracts.
Your Administrator Account is the master user set-up by us to allow you to:
i. Manage your content
ii. Access all data captured
Please safeguard this information from any unauthorized use. In no event will we be liable for the unauthorized use or misuse of this information.
Site Legitimacy and Legal Use
You represent that, to the best of the your knowledge and belief, the domain names used with this Service, and the manner in which they are directly or indirectly used, does not infringe on the legal rights of any party, and that the web-site is not being used for any unlawful purposes. You further agree not to use the Services to deliver unsolicited bulk e-mail (“spam”). If, in our opinion you have violated any of these conditions, we reserve the right to immediately terminate your Services.
We reserve the right to communicate information to you that is pertinent to the quality or operation of our services. These announcements will be informative in nature and may include notices describing changes, upgrades, or other information to secure or to enhance your web hosting services.
Limitation of Liability
You agree that our entire liability, and your exclusive remedy, with respect to any Service(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such jurisdictions, our liability is limited to the extent permitted by law. We disclaim any and all loss or liability resulting from, but not limited to:
i. Loss or liability resulting from access delays or access interruptions;
ii. Loss or liability resulting from data non-delivery or data miss-delivery;
iii. Loss or liability resulting from acts of God;
iv. Loss or liability resulting from the unauthorized use or misuse of your account identifier or password;
v. Loss or liability resulting from errors, omissions, or misstatements in any and all information or services(s) provided under this Agreement;
vi. Loss or liability resulting from the interruption of your Service;
vii. Loss or liability resulting from vulnerabilities in anything uploaded to your hosting account; and
viii. Loss or liability resulting from unknown or undisclosed (a.k.a. 0-day), or within a reasonable timeframe after disclosure and release of a patch for vulnerabilities in our hardware, software or any other service used to provide your web hosting services.
You agree that we will not be liable for any loss of registration and use of your domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages.
You agree to release, indemnify, and hold us, our contractors, agents, employees, officers, directors and affiliates harmless from all liabilities, claims and expenses, including attorney’s fees, from claims by third parties, including but not limited to events relating to or arising under this Agreement, the Services provided hereunder or your use of the Services, including without limitation infringement by you, or someone else using the Service with your computer, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our operating rules or policy relating to the service(s) provided. When we are threatened with suit by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a breach of your Agreement and may result in cancellation of your Service.
Transfer of Service
There is no provision to transfer the service to another party under this Agreement. Where a transfer of Service to another party occurs, it is deemed to have occurred by the original parties to this Agreement cancelling the Agreement, and the new parties entering into a new Agreement.
You agree that failure to abide by any provision of this Agreement, may be considered by us to be a material breach and that we may provide a written notice, describing the breach, to you. If within thirty (30) calendar days of the date of such notice, you fail to provide evidence, which is reasonably satisfactory to us, that you have not breached your obligations under the Agreement, then we may cancel Service. Any such breach by you shall not be deemed to be excused simply because we did not act earlier in response to that, or any other, breach by you.
Disclaimer of Warranties
You agree that your use of our Services is solely at your own risk. You agree that such Service(s) is provided on an “as is”, “as available” basis. We expressly disclaim all warranties of any kind, whether expressed or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements, or that the Service(s) will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Service(s) or as to the accuracy or reliability of any information obtained through the Service or that defects in the Service will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of Service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. We make no warranty regarding any goods or services purchased or obtained through the Service or any transactions entered into through the Service. No advice or information, whether oral or written, obtained by you from us or through the Service shall create any warranty not expressly made herein.
As part of the registration process, you will be required to provide us with personal information, and to update us promptly as such information changes such that our records are current, complete and accurate. We may also collect voluntary information to help us improve the products and services offered to you. Despite our best efforts to disclose this information, we do not warrant that the registration process will identify what information is mandatory and what is voluntary.
Disclosure and Use of Registration Information
For the purpose of the Service in this Agreement, we do not generally need to disclose information to other parties. However, you agree and acknowledge that we may make the information available to other parties at our discretion, including, but not limited to law enforcement agencies in Canada or elsewhere, as requested by them. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your information by us. We will take reasonable precautions to protect the information we obtain from you from our loss, misuse, unauthorized access or disclosure, alteration or destruction of that information.
Your willful provision of inaccurate or unreliable information, your willful failure to promptly update information provided to us, or your failure to respond for over fifteen calendar days to inquiries by us concerning the accuracy of contact details associated with the this Agreement shall constitute a material breach of this Agreement and be a basis for cancellation of the Service.
Right of Refusal
We, in our sole discretion, reserve the right to refuse Service within thirty (30) calendar days from receipt of your payment for such services. We agree to refund your applicable fee(s). You agree that we shall not be liable to you for loss or damages that may result from our refusal to provide Service.
You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
Nothing contained in this Agreement or the Dispute Policy shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
Our failure to require performance by you of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via email or via regular mail. In the case of e-mail, valid notice shall only have been deemed to have been given when an electronic confirmation of delivery has been obtained by the sender. Any e-mail communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 4:00 p.m. EST, otherwise it will be deemed to have been delivered on the next business day. In the case of regular mail notice, valid notice shall be deemed to have been validly and effectively given 5 business days after the date of mailing and, in the case of notification to us shall be sent to:
Web By SmartSimple Inc.
111 Peter Street
Suite 606, Toronto, Ontario Canada
and in the case of notification to you shall be to the address specified in your “Account Information”.
You agree that this Agreement, the rules and policies published by us are the complete and exclusive agreement between you and us regarding our Services. This Agreement supersedes all prior agreements and understandings, whether established by custom, practice, policy or precedent.
This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in English in Ontario, and you irrevocably consent to the jurisdiction of the English courts of Ontario.
You attest that you are of legal age to enter into this Agreement.
Should the Host be legally separately incorporated, acquired, taken over or merged with another company, the new entity will be deemed to have taken over all responsibilities of the Host with regards to this contract, with the contract remaining in full force and effect.
Acceptance of Agreement
YOU AGREE THAT THE LANGUAGE OF THIS CONTRACT IS ONLY ENGLISH. YOU ACKNOWLEDGE THAT YOU HAVE READ THE ENGLISH VERSION OF THIS AGREEMENT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THE ENGLISH TRANSLATION. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE SERVICE AND ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.