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Web Hosting Agreement – Terms and Conditions
Web Site Hosting Agreement
THIS WEB SITE HOSTING AGREEMENT ("Agreement") is made and entered into on this _____ day of ___________________, _______ (the "Effective Date") by and between __________________ ("Web Site Owner") and _________________ ("Web Site Host").
WHEREAS, Web Site Host provides hosting of web sites to make such web sites accessible by users who are browsing on the Internet.
WHEREAS, Web Site Host maintains servers, software, and other equipment necessary to provide web site hosting services.
WHEREAS, Web Site Owner is the owner of all rights in and to the web site __________________.
WHEREAS, Web Site Owner is the owner of the Internet domain name __________________ which Web Site Owner represents and warrants does not infringe upon the trademark or other proprietary rights of any other party.
WHEREAS, Web Site Owner wishes to have the Web Site Host provide hosting services for its Web Site subject to the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the parties as set forth in this Agreement, the parties hereby agree as follows:
ARTICLE I
Provision of Web Hosting Services
For the entire term of this Agreement, subject to the terms and conditions set forth in this Agreement, Web Site Host hereby agrees to provide the following web site hosting services (the "Hosting Services") to the Web Site Owner:
1.1 Provide Web Page Owner with no more than ______ megabytes of disc space on the Web Site Host's web site server. Such disc space shall be used solely for the purpose of storing the Web Site and data files that are actively used in connection with the Web Site of the Web Site Owner. Subject to availability in the reasonable discretion of the Web Site Host, the Web Site Owner may secure additional server storage space at the rate of $_____ per megabyte per month.
1.2 Provide Web Page Owner with no more than ______ megabytes of monthly data transfer bandwidth. Subject to availability in the reasonable discretion of the Web Site Host, the Web Site Owner may secure additional megabytes of bandwidth per month at the rate of $_____ per megabyte per month.
1.3 Provide Web Site Owner with no more than ______ POP3 E-mail accounts. Additional e-mail accounts may be purchased for $______ per month per account.
1.4 Provide access via the Internet to users of Web Site Owner's Web Site, with such access being provided approximately 24 hours per day, with significant downtime only for normal or catastrophic maintenance, hardware or communication problems, replacement or upgrading of system components, normal power outages, and other usual factors that may effect downtime and which are not created by the gross negligence of the Web Site Host. Wherever possible, Web Site Host will communicate expected downtimes to Web Site Owner in advance.
1.5 Provide online access by Web Site Owner to various usage statistics related to the Web Site within the capabilities of Web Site Hosts equipment and software.
1.6 Make every reasonable effort to protect and backup data for Web Site Owner on a regular basis. However, Web Site Host is not responsible for Owner's files residing on Host's servers. Owner is solely responsible for independent backup of data stored on provider.
1.7 Web Site Host maintains control and ownership of any and all IP numbers and addresses that may be assigned to Web Site Owner and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
ARTICLE II
Changes To Owner's Web Site
2.1 Web Site Host will provide a File Transfer Protocol gateway which is password protected and which permits Web Site Owner or their authorized representatives to access and modify the Web Site. Web Site Owner will be given access to such password to permit access to the Web Site Owner's Web Site. Web Site Owner may not change or modify the password in any way during the term of this Agreement. Web Site Host shall likewise retain possession of such password.
2.2 Web Site Owner may access through such FTP gateway using the password for the purpose of modifying its Web Site. Notwithstanding the above, the grant of access and the ability to modify shall not be applicable except in compliance with the terms of a valid licensing agreement, in the event that the Web Site was created as a "work for hire," or in the event that the copyright to the Web Site has been assigned to the Web Site Owner if Web Site Host created such Web Site.
ARTICLE III
Price and Payment
3.1 In exchange for the Hosting Services to be provided by the Web Site Host pursuant to the terms of this Agreement, Web Site Owner shall pay an annual hosting fee of $_____ per year.
3.2 The Hosting Fee shall be solely for the Hosting Services described in this Agreement and shall not pertain to any other services that Web Site Host may provide to the Web Site Owner, including but not limited to technical support, web site development, marketing, search engine placement, advertising, or any other service.
3.3 Web Site Host reserves the right, in its sole discretion, to deactivate the Owner's account(s) upon an indication on credit problems, including deliquent payments. .
3.4 All sales are final. Should you choose to cancel your account at any time within your billing period, and unused credit will cover our administration costs for such action.
ARTICLE IV
Representations And Warranties of Web Site Owner
4.1 Owner represents and warrants to Host that: (a) Owner owns or has the right to use all material contained in the Web Site, including all text, graphics, sound, video, programming, scripts and applets; and (b) the use, reproduction, distribution, and transmission of the Web Site, or any information or materials contained in it, on and from Host's server computer does not: (i) infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary rights of a third party; (ii) violate any criminal laws; (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity, or violate any other law or regulation.
4.2. Engaging, advertising, and participating in the sending of Unsolicited Email is explicitly prohibited on Host's servers. Host defines Unsolicited Email as using any computer or electronic device to send an unsolicited advertisement or electronic mail to an electronic mail address of an individual with whom such person lacks a preexisting and ongoing business or personal relationship unless said individual provides express invitation or consent/permission. Violators of the aforementioned policy are subject to account(s)/service(s) termination, without refund.
4.3. The Owner agrees not to transmit, distribute, store, advertise, link to, or make available any images, language, or ideas containing sexually explicit or implicit subject matter. Host reserves the right to make a final determination in any dispute involving sexually explicit or implicit subject matter. The first occurrence of a violation of this provision will result in a halt of services to the Owner. Any occurrence thereafter of a violation of the aforementioned provision will result in a termination of account(s)/service(s), without refund.
4.4. The Owner acknowledges that by reason of its relationship with Host, it may have access to certain information and materials relating to Host's business, services, customers, software technology, and marketing strategies that is confidential and of substantial value to Host. The Owner agrees not to disclose any of the above information to any third party. The provisions of this section shall survive the termination of the agreement for any reason.
ARTICLE V
Limitations of Warranties and Liability
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HOST DISCLAIMS ANY AND ALL EXPRESS WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. HOST WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR DAMAGES, OR, OTHER THAN AS SET FORTH IN THIS AGREEMENT, FOR CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL HOST'S LIABILITY EXCEED THE TOTAL PRICE, AS DEFINED IN THIS AGREEMENT.
ARTICLE VI
Right to Monitor and Remove Unacceptable Sites
Host has the right to monitor the Web Site, and in its sole discretion to remove any content that Host finds objectionable for any reason, without prior notice to Owner.
ARTICLE VII
Indemnification
Owner is solely responsible for any liability arising out of or related to the Web Site. Owner agrees to indemnify and hold Host harmless from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorney fees and experts' fees, associated with any claim or action brought against Host related to or arising out of the Web Site or Owner's breach of its warranties under this Agreement. This indemnification agreement will survive termination of this Agreement.
ARTICLE VIII
Term of Agreement
This Agreement will take effect on the Effective Date and remain in effect for a period of _____ months, unless sooner terminated pursuant to the terms hereof.
ARTICLE IX
Termination
Either Party may terminate this Agreement, with or without cause, upon ____ days prior written notice to the other party. Termination of this Agreement prior to the end of the term hereof shall not effect the obligation of the Web Site Owner to continue to pay the entire hosting fee hereunder through the entire term hereof.
ARTICLE X
Miscellaneous
10.1 This Agreement may not be assigned by either Party or by operation of law to any other person, firm, or entity without the express written approval of the other Party.
10.2 This Agreement may be amended at any time and from time to time, but any amendment must be in writing and signed by each Party to be bound.
10.3 Either Party will be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent they act diligently to remedy the cause of the delay or failure.
10.4 This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties. This Agreement shall be construed and interpreted in a neutral manner.
10.5 If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
10.6 This Agreement, including all Exhibits, Appendices, and Attachments, contains the entire agreement of the Parties relating to the rights granted and obligations assumed herein. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the Party to be charged.
10.7 This Agreement shall be governed. construed and interpreted in accordance with the laws of the Province of Alberta (without respect to principles of conflicts of law), and the Parties hereby submit to jurisdiction of and venue in the Province of Alberta in any legal proceeding necessary to interpret or enforce this Agreement or any part of this Agreement.
10.8 In any action brought under this Agreement, the prevailing party shall be entitled to recover its actual costs and attorney fees and all other litigation costs, including expert witness fees, and all actual attorney fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. The provisions of the preceding sentence shall be severable from the provisions of this Agreement and shall survive the entry of any such judgment. The Parties submit to jurisdiction and venue in the Province of Alberta in any legal proceeding arising regarding this Agreement.
10.9 As used in this Agreement, the following terms shall have the meanings ascribed to them below:
(a) The term "Browser" refers to a program used to provide interactive, graphical access to sites on the World Wide Web.
(b) The term "Internet" refers to the global network of computers using the TCP/IP protocol for communication.
(c) The term "Web" refers to the World Wide Web. The Web is a graphical interface used to access sites on the Internet.
(d) The term "Web Site" refers to a series of interconnected Hypertext Markup Language documents capable of residing on a single host server computer.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above intending to be legally bound by the terms hereof.
_____________________________ _____________________________
Signature - Web Site Owner Signature - Web Site Host
_____________________________ _____________________________
Print Name Print Name
_____________________________ iGods Internet Marketing
Company Name Company Name
_____________________________ _____________________________
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