This Web Hosting Agreement (this “ Agreement ”) is between
MonteCarloHosting (MCH), a Web Services Company formed under the laws
of the Province of Mantioba with its principal office at Mantioba and
the person (individual or legal person) whose signs MCH's service order
and set up form (the “ Order ”) incorporating this Agreement by
reference (“ Customer ”). This Agreement governs Customer's use of
MCH's Web hosting service.
1. Services .
Subject to the terms of this Agreement, and contingent on Customer's
satisfaction of MCH's credit approval requirements, MCH agrees to
provide the web hosting services described in the Order for the fees
stated in the Order.
2. Term.
The initial service term of the Agreement shall begin on the date
that MCH generates an e-mail message to Customer announcing the
activation of the Customer's account (the “ Service Commencement Date
”) and shall continue for the number of months stated in the Order (the
“ Initial Term ”). Upon expiration of the Initial Term, this Agreement
shall automatically renew for successive renewal terms of the same
length as the Initial Term (each a “ Renewal Term ”) unless MCH or
Customer provides the other with written notice of non-renewal at least
five (5) days prior to the expiration of the Initial Term or
then-current Renewal Term, as applicable. The Initial Term and any
Renewal Term may be referred to collectively in this Agreement as the “
Term .”
3. Payments. (a) Fees .
Fees are payable in advance on the first day of each billing cycle.
Customer's billing cycle shall be monthly, quarterly, twice-yearly or annually as indicated on
the Order, beginning on the Service Commencement Date. MCH may require
payment for the first billing cycle before beginning service. If the
Order provides for credit/debit card billing, Customer authorizes MCH
to bill subsequent fees to the credit/debit card on or after the first
day of each successive billing cycle during the Term of this Agreement;
otherwise MCH will invoice Customer via electronic mail to the Primary
Customer Contact listed on the Order. Invoiced fees may be issued on or
before the 1 st day of each billing cycle, and the fees shall be due on
the 4 th day following invoice date, but in no event earlier than the
first day of each billing cycle.
Payments must be made in United States dollars. Customer is
responsible for providing MCH with changes to billing information (such
as credit card expiration, change in billing address) At its option,
MCH may accrue charges to be made to a credit/debit card until such
charges exceed $10.00. MCH may suspend the service without notice if
payment for the service is overdue. Fees not disputed within sixty (60)
days of due date are conclusively deemed accurate. Customer agrees to
pay MCH's reasonable reinstatement fee of twenty($20.00) USD following
a suspension of service for non-payment, and to pay MCH's reasonable
costs of collection of overdue amounts, including collection agency
fees, attorney fees and court costs.
(b) Fee Increases .
MCH may increase its fees for services effective the first day of a
Renewal Term by giving notice to Customer of the new fees at least
forty five (45) days prior to the beginning of the Renewal Term, and if
Customer does not give a notice of non-renewal as provided in Section 2
above, the Customer shall be deemed to have accepted the new fee for
that Renewal Term and any subsequent Renewal Terms (unless the fees are
increased in the same manner for a subsequent Renewal Term).
(c) Taxes .
At MCH's request Customer shall remit to MCH all sales, VAT or similar
tax imposed on the provision of the services (but not in the nature of
an income tax on MCH), regardless of whether MCH fails to collect the
tax at the time the related services are provided.
(d) Early Termination .
Customer acknowledges that the amount of the fee for the service is
based on Customer's agreement to pay the fee for the entire Initial
Term, or Renewal Term, as applicable. In the event MCH terminates the
Agreement for Customer's breach of the Agreement in accordance with
Section 9 (Termination), or Customer terminates the service other than
in accordance with Section 9 (Termination) for MCH's breach, the unpaid
fees for each billing cycle remaining in the Initial Term or
then-current Renewal Term, as applicable, are due on the business day
following termination of the Agreement.
4. Law/AUP .
Customer agrees to use the service in compliance with applicable law
and MCH's Acceptable Use Policy posted on our AUP Page (the “ AUP ”),
which is hereby incorporated by reference in this Agreement. Customer
agrees that MCH may, in its reasonable commercial judgment consistent
with industry standards, amend the AUP from time to time to further
detail or describe reasonable restrictions and conditions on Customer's
use of the Services. Amendments to the AUP are effective on the earlier
of MCH's notice to Customer that an amendment has been made, or the
first day of any Renewal Term that begins subsequent to the amendment.
Customer agrees to cooperate with MCH's reasonable investigation of any
suspected violation of the AUP. In the event of a dispute between MCH
and Customer regarding the interpretation of the AUP, MCH's
commercially reasonable interpretation of the AUP shall govern.
5. Customer Information.
Customer represents and warrants to MCH that the information he, she or
it has provided and will provide to MCH for purposes of establishing
and maintaining the service is accurate. If Customer is an individual,
Customer represents and warrants to MCH that he or she is at least 18
years of age. MCH may rely on the instructions of the person listed as
the Primary Customer Contact on the Order with regard to Customer's
account until Customer has provided a written notice changing the
Primary Customer Contract.
6 Indemnification.
Customer agrees to indemnify and hold harmless MCH, MCH's affiliates,
and each of their respective officers, directors, agents, and employees
from and against any and all claims, demands, liabilities, obligations,
losses, damages, penalties, fines, punitive damages, amounts in
interest, expenses and disbursements of any kind and nature whatsoever
(including reasonable attorneys fees) brought by a third party under
any theory of legal liability arising out of or related to the actual
or alleged use of Customer's services in violation of applicable law or
the AUP by Customer or any person using Customer's log on information,
regardless of whether such person has been authorized to use the
services by Customer.
7. Disclaimer of Warranties.
MCH DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT
PERMITTED BY APPLICABLE LAW MCH DISCLAIMS ANY AND ALL WARRANTIES
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
8. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR
DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE
USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT,
EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY
OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE
MAXIMUM AGGREGATE LIABILITY OF MCH AND ANY OF ITS EMPLOYEES, AGENTS OR
AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT,
TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY
NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF
SERVICE.
9. Suspension/Termination .
(a) Suspension of Service .
Customer agrees that MCH may suspend services to Customer without
notice and without liability if: (i) MCH reasonably believes that the
services are being used in violation of the AUP; (ii) Customer fails to
cooperate with any reasonable investigation of any suspected violation
of the AUP; (iii) MCH reasonably believes that the suspension of
service is necessary to protect its network or its other customers, or
(iv) as requested by a law enforcement or regulatory agency. Customer
shall pay MCH's reasonable reinstatement fee if service is reinstituted
following a suspension of service under this subsection.
(b) Termination.
The Agreement may be terminated by Customer prior to the expiration of
the Initial Term or any Renewal Term without further notice and without
liability if MCH fails in a material way to provide the service in
accordance with the terms of the Agreement and does not cure the
failure within ten (10) days of Customer's written notice describing
the failure in reasonable detail. The Agreement may be terminated by
MCH prior to the expiration of the Initial Term or any Renewal Term
without further notice and without liability as follows: (i) upon five
(5) days notice if Customer is overdue on the payment of any amount due
under the Agreement; (ii) Customer materially violates any other
provision of the Agreement, including the AUP, and fails to cure the
violation within five (5) days of a written notice from MCH describing
the violation in reasonable detail; (iii) upon one (1) days notice if
Customer's Service is used in violation of a material term of the AUP
more than once, or (iv) upon one (1) days notice if Customer violates
Section 5 (Customer Information) of this Agreement. Either party may
terminate this agreement upon ten (10) days advance notice if the other
party admits insolvency, makes an assignment for the benefit of its
creditors, files for bankruptcy or similar protection, is unable to pay
debts as they become due, has a trustee or receiver appointed over all
or a substantial portion of its assets, or enters into an agreement for
the extension or readjustment of all or substantially all of its
obligations.
10. Requests for Customer Information . Customer agrees that MCH may, without notice to Customer, (i)
report to the appropriate authorities any conduct by Customer or any of
Customer's customers or end users that MCH believes violates applicable
law, and (ii) provide any information that it has about Customer or any
of its customers or end users in response to a formal or informal
request from a law enforcement or regulatory agency or in response to a
formal request in a civil action that on its face meets the
requirements for such a request.
11. Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by MCH
notwithstanding any agreement by MCH to provide back up services.
12. Changes to MCH's Network .
Upgrades and other changes in MCH's network, including, but not limited
to changes in its software, hardware, and service providers, may affect
the display or operation of Customer's hosted content and/or
applications. MCH reserves the right to change its network in its
commercially reasonable discretion, and MCH shall not be liable for any
resulting harm to Customer.
13. Notices.
Notices to MCH under the Agreement shall be given via electronic mail
to the e-mail address posted for customer support at
Notices to Customer shall be given via
electronic mail to the individual listed as the Primary Customer
Contact on the Order. Notices are deemed received on the day
transmitted, or if that day is not a business day, on the first
business day following the day delivered. Customer may change his, her
or its notice address by a notice given in accordance with this
Section.
14. Force Majeure .
MCH shall not be in default of any obligation under the Agreement if
the failure to perform the obligation is due to any event beyond MCH's
control, including, without limitation, significant failure of a
portion of the power grid, significant failure of the Internet, natural
disaster, war, riot, insurrection, epidemic, strikes or other organized
labor action, terrorist activity, or other events of a magnitude or
type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes .
The Agreement shall be governed by the laws of the Province of Mantioba
, exclusive of its choice of law principles, and the laws of Canada ,
as applicable. The Agreement shall not be governed by the United
Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE
FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE
THE STATE AND FEDERAL COURTS IN DauphinJurisdiction of the Court of
Queens Bench , Mantioba , AND EACH PARTY AGREES NOT TO DISPUTE SUCH
PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. Miscellaneous.
Each party acknowledges and agrees that the other party retains
exclusive ownership and rights in its trademarks, service marks, trade
secrets, inventions, copyrights, and other intellectual property.
Neither party may use the other party's name or trade mark without the
other party's prior written consent. The parties intend for their
relationship to be that of independent contractors and not a
partnership, joint venture, or employer/employee. Neither party will
represent itself to be agent of the other. Each party acknowledges that
it has no power or authority to bind the other on any agreement and
that it will not represent to any person that it has such power or
authority. This Agreement may be amended only by a formal written
agreement signed by both parties. The terms on Customer's purchase
order or other business forms are not binding on MCH unless they are
expressly incorporated into a formal written agreement signed by both
parties. A party's failure or delay in enforcing any provision of the
Agreement will not be deemed a waiver of that party's rights with
respect to that provision or any other provision of the Agreement. A
party's waiver of any of its right under the Agreement is not a waiver
of any of its other rights with respect to a prior, contemporaneous or
future occurrence, whether similar in nature or not. The captions in
the Agreement are not part of the Agreement, but are for the
convenience of the parties. The following provisions will survive
expiration or termination of the Agreement: Fees, indemnity
obligations, provisions limiting liability and disclaiming warranties,
provisions regarding ownership of intellectual property, these
miscellaneous provisions, and other provisions that by their nature are
intended to survive termination of the Agreement. There are no third
party beneficiaries to the Agreement. Neither insurers nor the
customers of resellers are third party beneficiaries to the Agreement.
Customer may not transfer the Agreement without MCH's prior written
consent. MCH's approval for assignment is contingent on the assignee
meeting MCH's credit approval criteria. MCH may assign the Agreement in
whole or in part.
This Agreement constitutes the complete and exclusive agreement
between the parties regarding its subject matter and supercedes and
replace any prior understanding or communication, written or oral.
Failure to abide by any of these policies or our Acceptable Use or
Privacy Policy will result in immediate account suspension or
termination.
