WEB HOSTING TERMS AND CONDITIONS
All clients hosted on our servers must agree to the following terms and conditions. Don't be intimidated, they are standard industry clauses.
1.1 "Customer" means the person who orders the hosting and has obligations for the hosting hereunder.
1.2 "Customer Data" means all supporting data files and data structures provided by the Customer for its hosting space.
1.3 "Server space" means the space allocated to the Customer for hosting his domain and website files.
2.0 Scope of Services
We will provide you with the following specific services:
2.1 Physical domain and hosting services. Enzster Inc. will provide the computer and operating system software to operate and support the hosting of your domain and website in a manner acceptable in the industry. Although this agreement includes daily backups of all data residing on the server space, and although we will make reasonable efforts to protect and backup data for you on a daily basis, we are not responsible for the Customer Data residing on the server space. You are ultimately and solely responsible for the backup of Customer Data stored on your server space, and should always keep copies of new data uploaded to the server for the last 48 hours of use.
2.2 Physical Server Set-Up and Updating. Enzster Inc. will remain responsible for keeping the server (machine) patched, updated and upgraded to preserve security integrity.
2.3 Physical Server Connection and Access. We will provide connection of the server to the Internet, including all telecommunications equipment and connections for the server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. We will use our best efforts to provide uninterrupted connection and access, except for scheduled maintenance downtime and any interruption to connection and access beyond our control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches.
2.4 Maintenance Services. We will perform maintenance services as we determine reasonably necessary to maintain the continuous operation of the server. You agree to periodically-scheduled maintenance downtime periods. We will provide prior notice of the maintenance downtime, except when circumstances beyond our control limit our ability to do so.
2.5 Hardware, Equipment and Software. You are responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access our server. We make no representations, warranties, or assurances that your equipment will be compatible with our service.
3.0 Payment Terms
You agree to the following payment terms in consideration for the services provided:
3.1 Set-Up Fee. All web-host accounts are free of setup fees.
3.2 Hosting fee. You will pay us a Hosting fees for the hosting services we provide under this Agreement according to our current price schedule, which remains available on our website. The Hosting fee is billed to you prior to each terms' services and is due before each terms' service is rendered. The Hosting fee may be subject to adjustment at the time of renewal of this agreement, according to the then current Price Schedule.
3.3 Taxes. All fees are exclusive of any and all federal, provincial, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement.
4.0 Representations and Warranties
Our obligations under this Agreement are conditioned upon the following representations and warranties:
4.1 Compliance with Law. You represent and warrant that you will comply with all applicable state, provincial, municipal and federal laws in your performance of this Agreement and in the use and operation of the server space, including laws governing technology, software and trade secrets. You agree to comply with rules and regulations of your domain name registrars and other Internet authorities.
4.2 Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.
4.3 Respect of third-party rights. You represent and warrant that your performance of this Agreement, including the use of your server space and software or data files to be installed thereon, shall respect and not infringe the intellectual property or other proprietary rights of any third party.
4.4 Our Performance. Our services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with our obligations as defined by this Agreement.
4.5 Force Majeure. We shall not be liable for failure to fulfill our obligations hereunder if such failure is due to causes beyond our reasonable control, including, without limitation, actions or failures to act of Customer, or any subscriber, acts of God, fire, catastrophe, governmental prohibitions or regulations, viruses which did not result from the acts or omissions of us, our employees or agents, national emergencies, insurrections, riots or wars, or strikes, lockouts, work stoppages or other labor difficulties. The time for any performance required hereunder shall be extended by the delay incurred as a result of such act of force majeure, and we shall act with diligence to correct such force majeure.
5.0 Risks, Liabilities and Damages
5.1 Risks. You expressly agree that use of our server space is at your own risk. Neither we, nor our employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warrant that our service will be uninterrupted or error free; nor do we make any warranty as to the results that may be obtained from the use of our services or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through our services, unless otherwise expressly stated in this Agreement.
5.2 Limited liability. We will make all reasonable efforts to keep the data and equipment on the server space safe from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance caused by our acts or omissions, whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. However, we, our officers, agents or anyone else involved in creating, producing or distributing our service, will not be held liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service resulting or from acts performed in good faith, save in the case of gross negligence on our part. You acknowledge that this paragraph shall apply to all content on our server.
5.3 Limited remedy for damages. Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort will not (a) exceed the actual dollar amount which you paid during the billing period during which the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, damages for loss of data, file, profit, good will, time, savings or revenue.
6.0 Term and Termination
The following describes the duration and methods of termination:
6.1 Contract Length and Cancellation. The minimum contract period for server space is 90 days. In the event you cancel your service, you will be charged in full for the entire length of the term in which you cancelled your service hereunder.
6.2 Duration. This Agreement will continue on a month to month basis, unless one month’s prior notice of cancellation is given prior to the end of term.
6.3 Breach or Default. In the event we terminate this Agreement because of a breach, you will be charged in full for the remainder of the term year in which the breach occurred. Each of the following constitutes a breach or default of this Agreement:
a) your failure to pay the current term's service fee by the tenth day of the term for which the service is being rendered; or
b) your violation of any one of Sections 4.1, 4.2, 4.3, 8.0, 8.1 or 9.2.
6.4 Special Lien on Personal Property. We retain a special lien on all of your personal property in our possession to secure any payment amount you may owe us under this Agreement.
7.0 Ownership Rights
We acknowledge that all right, title and interest in the Customer Data on your server space shall be solely owned by you. We own or have licensed all server software. You are responsible for the registration, renewal and control of your domain names unless we separately contract to provide those services.
8.0 Activities Subject to Immediate Deactivation
8.1 Illegal, Abusive or Unethical Activity. Any server space or website that is used for illegal, abusive or unethical activity may be immediately deactivated by us, without warning to you. Illegal, abusive or unethical activities include, but are not limited to: pornography, obscenity, nudity, violations of privacy, spoofing, phishing, hacking, cracking, computer virus, harvesting of screen names, promotion of gambling, and any harassing or harmful materials or uses, as determined by us.
You agree to indemnify and hold us harmless from any claim resulting from your publications or use of illegal, abusive or unethical materials or activities. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we are not required to give notice before deactivating your use of our services if, in our sole discretion, your use is or results in illegal, abusive or unethical activities.
We have the right, but not the obligation, to monitor any activity and content associated with your web sites on our services. If a server space is disabled for such activities, the regular fees still apply.
8.2 Right to report Illegal Activities. We reserve the right to report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental request, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history and posted content. You hereby consent to such action.
9.1 Public Nature of Internet. Please understand that all information submitted on the server space shall be considered publicly accessible. Important and private information should be protected by you. For example, we are not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that you may use.
9.2 Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political messages. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we reserve the right to immediately deactivate your use of our service if we discover such activity. Further, you agree to indemnify and hold us harmless from any claim resulting from your use electronic mail services through the service provided through this Agreement.
9.3 Governing Law and Legal Fees. This Agreement will be interpreted and applied in accordance with the laws of the Province of Ontario, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees, whether or not a suit is actually filed.
9.4 Control and Ownership of IP. We maintain and control ownership of all IP numbers and addresses that may be assigned to you, and we reserve, in our sole discretion, the right to change or remove any and all IP numbers and addresses.
9.5 Resale of Services and Flow-down of Obligations. You may not resell space on your own server space without our prior written consent. Furthermore, any person, employee or agent or yours will have to abide by the aforementioned regulations.
9.6 Transfer. Neither this Agreement nor any interest herein may be assigned in whole or in part, by either party hereto without the prior written consent of both parties.
10.0 Changes to System Abuse Definitions
Enzster Inc. reserves the right to modify, and/or change the definitions of system abuse, as the complexity of technology may evolve and which entitle it to terminate the Customer’s access to the Internet. However, Enzster Inc. shall give 30 days prior notice to the Customer of such modifications and/or changes.
All notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.