This agreement ("Agreement") is between wholesale hosting service provider Web Candy Design Inc. ("Web Candy") at 638 - 16th Avenue NW, Calgary, Alberta, Canada and the Customer ("Customer").
The parties agree as follows:
This agreement in conjunction with the Web Candy Acceptable Use Policy herein by reference (AUP) are intended to cover any and all services provided by Web Candy and received by the Customer. This service agreement and AUP together, contain the entire understanding between Web Candy and Customer with respect to the services ("Services") and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Web Candy and Customer. Customer acknowledges and agrees that its entire right relating to Web Candy Services are as set forth in this agreement and hereby waives all other rights that it may have by implication of law or otherwise.
Subject to the terms and conditions of this agreement, Web Candy agrees to provide the wholesale hosting services specified in the Order. Subject to Customer's right to terminate this agreement in accordance to Section 4.3 of this agreement, Web Candy may expand or contract the scope of the Web Candy's services by issuing an amended order form to the Customer in advance of such change.
Web Candy will not sell the Customer's personal or financial information to any third parties. Web Candy will not give the Customer's personal or financial information to any law enforcement authorities or legal agents without a proper court order, subpoena or warrant.
Upon expiration, this Agreement will renew automatically for the same duration as previously agreed to, unless you advise Web Candy otherwise prior to said expiration. Renewal fees must be received by Web Candy within 30 (thirty) days of said expiration, failing which the Customer's website and e-mail account(s) will be placed on accounting hold. If the renewal fees are not received within 90 (ninety) days of expiration, all the Customers and e-mail content will be deleted and removed from Web Candy's servers without any compensation or notice to the Customer. Web Candy reserves the right to not automatically renew any service plan.
4. Fees and Payment
The Customer agrees to pay Web Candy, without limitation, for services provided. Customer is fully responsible to ensure payment of any and all amounts due, are paid on time independently of receiving any invoices or billing notifications from Web Candy. Customer accounts may be cancelled with or without warning if any and all customer accounts are not paid up-to-date.
Customer is responsible for keeping their contact and billing information up-to-date and accurate, including but not limited to a properly functioning and reachable email address and telephone number.
Invoices may be provided as a courtesy to Customer by any or none of the following: email, Web Candy Customer Service Center or upon request fax or mail. Web Candy assumes no responsibility for invoices lost or not received. Dollar amounts and costs indicated for all Web Candy services are in Canadian currency, unless otherwise stated. Payment for all Web Candy services is billed and due a minimum of thirty (30) days in advance. Web Candy reserves the right to refuse acceptance of any form of payment or terms. Service and/or handling fees above and beyond those listed may apply at the discretion of Web Candy.
4.1 Overdue Accounts - Overdue accounts may, at the discretion of Web Candy, be issued a late payment reminder and/or 72 hour disconnection warning notice. Regardless of receiving a late payment reminder or disconnection notice all overdue accounts will be suspended/disconnected from the Internet for a period of 72 hours. Disconnected accounts are cancelled automatically after 72 hours unless: payment is received in full or alternative, suitable arrangements are made with Web Candy. A minimum $25 reconnection fee will be charged on all accounts reconnected after being suspended/disconnected. NOTE: If an account is cancelled, there is NO possibility that it can be restored and/or its data recovered.
4.2 Other Charges - Customers will pay all sales and value-added taxes, duties or levies imposed by any authority, government, government agency or commission or crown corporation in connection with the Web Candy web hosting and related services as provided under this agreement. Customers are responsible for collecting such taxes, duties or levies from end users as imposed by authority, government, government agency or commission or crown corporation.
Web Candy reserves the right to charge the Customer standard hourly rates $125/hour CDN ($50 minimum per instance) to cover the resolution of excessive or unusual problems or complaints.
4.3 Cancellation Policy - All hosting contracts, unless otherwise negotiated, are yearly. The Customer must notify Web Candy at least 30 days prior to the requested cancellation date. There are no partial refunds or credits for early cancellations. All payments to Web Candy are final and non-refundable.
5. Acceptable Use Policy
Customers shall at all times comply with and help ensure that they and their clients comply with the terms and conditions of the current version of the Acceptable Use Policy (AUP) posted at www.Web Candy.com. Customer agrees that Web Candy may amend the terms of the AUP from time to time by posting a new or different version of the Acceptable Use Policy at www.Web Candy.com. The Customer shall include the terms and conditions set out in the Acceptable Use Policy in an Acceptable Use Policy with its own clients. Violation of the terms set forth in Web Candy's AUP will result in an immediate and indefinite suspension of Customer's services solely at the discretion of Web Candy.
6. 99.99% Uptime Guarantee
Web Candy endeavors to provide the most reliable network infrastructure possible to its Customers. To Customers in good financial standing with Web Candy we guarantee that our network is available 99.99% of the time in a given month, excluding scheduled maintenance. The network is defined as core network infrastructure excluding the hardware, services and software running on your server. Network downtime is measured from the moment the Customer notifies a Web Candy support representative of a network failure to the time the Network responds to an external "ping" request. Notification of network failure must occur at the time of the outage and not after the fact. If network downtime exceeds .01% in a given month, the Customer will be credited 5% of their monthly hosting fee and an additional 5% for each additional 2 hours of downtime up to 50% of the Customer 's monthly hosting fee. Credits shall not be provided to the Customer if network downtime is the result of: a) scheduled maintenance b) circumstances beyond Web Candy's reasonable control, including, but not limited to: dDOS or other network attacks, upstream or 3rd party network outages, war, fire, flood, sabotage, labor disturbance, acts of government, acts of god or c) breaking this Agreement or Web Candy's Acceptable Use Policy.
7. Temporary Service Suspension
The Customer agrees that it may be necessary for Web Candy to temporarily suspend services for technical reasons or to maintain the Web Candy network, the Equipment or any other facilities, the timing of which will be as determined by Web Candy. Such suspension of the Services will not be an interruption of the Web Candy Services for the purpose of calculating network availability or the Customer's entitlement to credit for network interruption.
8. Emergency Service Suspension
Web Candy may interrupt the Services at any time for any duration of time, without penalty or liability for any claim by the Customer, where necessary to prevent improper or unlawful use of Web Candy Services or network. Such suspension of Services will not be an interruption for the purpose of calculating network availability or the Customer's entitlement to credit for network interruption.
9. Data Backups
Web Candy ensures that data backups are completed on a regular basis. We make every effort to ensure the reliability of this process. However, because of technical issues regarding backups on live servers and the possibility of data corruption on backup and restore, Web Candy cannot guarantee any data can be fully restored. The Customer will hold Web Candy without penalty or liability for any claim resulting from a failed backup and/or restore procedure.
10. Compromised/Hacked Server
A compromised or "hacked" server is a serious threat to our network. Web Candy, at its sole discretion, will take any and all measures to prevent a compromised server from doing additional damage to its own system and files or to the rest of the network. Web Candy may at its discretion charge a reconnect fee of $25 for any server that has been disconnected due to compromise or other AUP violation.
Determination that a server has been compromised:
By the Client - If you believe your system may have been hacked, immediately report the situation to Web Candy technical support. Web Candy will examine your system and may implement additional monitoring of your system.
By Web Candy - If a Web Candy System Administrator believes a server on our network is compromised, Web Candy will: 1) disconnect the server from the network, 2) contact the client, and 3) provide evidence of the server being "hacked".
11. Proprietary Rights
The Customer shall not display or otherwise use any trade mark, trade name, logo, symbols, coined word or combination of words used by Web Candy or permit the same to be displayed or otherwise used in connection with any business conducted or controlled by the Customer except as may be specified or approved by Web Candy in writing.
12. Termination of Agreement
If Customer breaches any of its obligations under this agreement or the Acceptable Use Policy (AUP) then Web Candy may terminate this agreement at any time and without prior notice.
12.1 Discretionary Suspension or Cancellation of Services
Web Candy reserves the right to refuse, suspend or cancel services provided to Customer for any reason Web Candy deems necessary or warranted, including but not limited to, abusive or belligerent behavior, excessive administrative issues, consistent delinquent or late payments. Web Candy may exercise this right at any time without prior warning or further explanation to Customer.
Web Candy is not responsible for any loss of data or downtime resulting from willful, accidental or mistaken disconnection or cancellation of an account.
13. Limitation of Liability
Customer acknowledges and agrees neither Web Candy nor any of its members, shareholders, directors, officers, employees or representatives will be liable for any special, indirect, consequential, punitive or exemplary damages, or damages (including but not limited to damages for loss of profits or savings, loss of data, or loss of use) in connection with this agreement. If, despite the foregoing limitations, Web Candy or any of its shareholders, directors, officers, employees or representatives should become liable to Customer or any other person in connection with this agreement for ANY REASON, then the maximum aggregate liability of Web Candy, its members, shareholders, directors, officers, employees and representatives for all such things and to all such parties will be limited to the lesser of the actual amount of loss or damage suffered by the claimant or the amount payable by Customer to Web Candy for one month of service under this agreement.
Customer will indemnify and save harmless Web Candy and its members, shareholders, directors, officers, employees, agents, contractors, and representatives from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against Web Candy or any of its members, shareholders, directors, officers, employees and representatives in connection with Customer's negligence, activities or omissions, or breaches of its obligations under this agreement, including claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.
15. Governing Law
This agreement shall be interpreted in accordance with and be governed in all respects by the laws of the Province of Alberta and the laws of Canada applicable therein. The courts of Alberta shall have non-exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this agreement or any alleged breach of this agreement. The parties each attorney irrevocably to the jurisdiction of such courts.
16. Customer Acknowledgement
Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the Web Candy network or any inter-connected network by third parties. Web Candy provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with the Customer's server/network.
17. Electronic Commerce
The Customer is solely responsible for all aspects of their online store or e-business. This includes, but is not limited to:
- The accuracy of statements and materials related to your products and/or services.
- The accurate calculation and application of shipping and sales tax.
- Processing Customer orders, inquiries and complaints.
- Maintaining the confidentiality of Customer's client credit card numbers and private information.