WEB HOSTING AGREEMENT/TERMS

Last updated: August 3, 2015

THIS AGREEMENT/TERMS document is between The Image Stop ltd. / PenguinHosting.ca (“Company”) and any client who’s website is hosted within it’s hosting services. (“Client”).

The purpose of this Agreement (hereafter referred to as the “Agreement”) is to precede a longer-term contract arrangement under which Company will provides Web Hosting services on behalf of Client for the Client and/or any of it’s customers.

Agreements

In consideration of the mutual covenants set forth in this Agreement, Customer and Client hereby agree as follows:

1. Terms.

Subject to the terms and conditions of this Agreement, Company will provide Web Hosting services for Client subject to the following terms:

a) Length of Service.
Client agrees to an initial twelve (12) month contractual term of service (“Term”). The length of contract required is based on the type of service desired by Client and shall be determined solely by Company. This contract shall also include free domain registration and/or renewal of the hosted domain as part of the (12) month term.
b) Service Start Date.
The first payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Company receipt of payment for such first Term of service or upon a mutually agreed upon alternate date. The cost of the hosting services will be pro-rated to April 1st of the following year from the beginning of the service start date.
c) Service Cost.
The cost for the agreed Web Hosting services will be $150 plus applicable taxes.
d) Renewal by Client.
This Agreement will automatically renew for successive twelve (12) month Terms on April 1st of each calendar year unless canceled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change and will be done so in writing by Company at least 30 days prior to the end of the Term renewal date. Renewal of services by Client indicates agreement to any Contract revisions and price changes. Renewal fees for the following term will be automatically invoiced to Client’s account and invoices will be sent to the Client, payable upon receipt.

2. End User Pricing and Web Hosting Compensation.

End User pricing and Web Hosting Compensation is agreed upon as per PenguinHosting.ca standard pricing and is subject to change at the sole discretion of Company.

3. Terms of Payment.

Terms of payment are C.O.D. unless credit approval has been granted by Company. If credit approval has been granted, credit terms are net 10 days upon receipt of invoice. We reserve the right to revoke any credit extended if payment is in arrears for more than 30 days.

4. Proprietary Information.

Proprietary information exchanged here under shall be treated as such by Client. This information shall include, but not be limited to, the provisions of this Agreement, product and services information and pricing. Client further agrees to not decompose, disassemble, decode or reverse engineer any Company program, code or technology delivered to Client or any portion thereof.

5. Domain Name Registration and Ownership.

As part of the Company’s Domain and Hosting Package the Company agrees to register and/or renew the domain name which the Client uses for hosting within it services. The price for the registration or renewal of the domain name cannot exceed $15 plus applicable taxes in order to qualify for this hosting package. Company reserves the right to increase the cost of the Domain and Hosting Package by the additional amount required to register or renew the domain associated with the hosting package if the domain registration or renewal exceeds this amount. In addition to this the Client agrees to make the Company the appropriate contact for the renewal notices of the domain name associated with the hosting account so that the Company can renew the domain as required. Registration and/or renewal of the domain may be done through any registrar that the Client may wish to use or any registrar recommended or used by the Company. Upon making the Company the registered contact for your domain the Company agrees to facilitating payment for renewals and DOES NOT intend to be the registered owner of the lease for use of the domain name. All rights to the registered domain name are retained by the Client and, in the event of the Client wishing to move their hosting elsewhere, the Company will relinquish all connections and/or rights to anything relating to the registered domain name.

6. Censorship.

Company will exercise no control whatsoever over the content of the information passing through the network, email or web site. The Client agrees.

7. Content.
Company has the right to refuse service if Client content of information provided is deemed illegal, unethical, misleading, contains child pornography, bestiality, promotion of illicit drugs, hate groups or literature by Client and/or Client’s third-party.
Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of anothers copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email support@penguinhosting.ca.
The use of a shared, VPS or reseller account as a backup/storage device is not permitted with the exception of one backup of the same account. Please do not take backups of your backups.
Do not backup the content of your local computer to our servers. All content stored on the server must be publicly accessible via the website.
Examples of unacceptable material on all Company hosting plans include:
• EmailMarketing
• Topsites
• IRC Scripts/Bots
• Proxy Scripts/Anonymizers
• Pirated Software/Warez
• Image Hosting Scripts (similar to Photobucket or Tinypic)
• AutoSurf/PTC/PTS/PPC sites
• IP Scanners
• Bruteforce Programs/Scripts/Applications
• Mail Bombers/Spam Scripts
• Large collection of MP3 files and/or DVD/CD ISO Image Files
• Banner-Ad services (commercial banner ad rotation)
• File Dump/Mirror Scripts (similar to rapidshare)
• Commercial Audio Streaming (more than one or two streams)
• Escrow/Bank Debentures
• High-Yield Interest Programs (HYIP) or Related Sites
• Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi,
MLM/Pyramid Scheme)
• Sale of any controlled substance without prior proof of appropriate permit(s)
• Prime Banks Programs
• Lottery Sites
• MUDs/RPGs/PBBGs
• Hateful/Racist/Harassment oriented sites
• Hacker focused sites/archives/programs
• Sites promoting illegal activities
• Sharing, displaying, broadcasting or distribution of pornographic materials
• Forums and/or websites that distribute warez/pirated/illegal content
• Bank Debentures/Bank Debenture Trading Programs
• Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
• Mailer Pro

Clients who provide the above-mentioned content are in breach of this service contract. Company may terminate service without notice and without any refunds of Client’s unused pre-paid portion of funds.

8. Warranties.

Company makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Company also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of Client. Use of any information obtained by way of Company is at Client’s own risk, and Company specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of an end-to-end connection. Company does not represent guarantees of speed or availability of end-to-end connections. Company expressly limits its damages to Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Company specifically denies any responsibilities for any damages arising as a consequence of such unavailability.

9. Trademarks and Copyrighted Material.

Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.

10. Interruptions in Service.

The Company is not liable for any errors or interruption in service, whether within or outside of the Company’s reasonable control. Client understands interruptions may or may not occur and Client will hold the Company free and harmless from any damages incurred in any event of any time of loss. Service may be temporarily unavailable for scheduled maintenance, either by the Company or by third-party providers, or because of power interruptions or other causes.

11. Password Protection.

Client is responsible for protecting Client’s password and for any authorized or unauthorized use made of Client’s password. Client will not use or permit anyone to use Company’s service to guess passwords or to access other systems or networks without authorization. Company will fully co-operate with law enforcement authorities in the detection and prosecution of illegal activity.

12. IP Addresses.

Client must return to Company all IP addresses issued by Company to Client if Client discontinues service with Company or if Company discontinues service.

13. Internet Etiquette

Client is expected to be familiar with and to practice good Internet etiquette (Netiquette). Client will comply with the rules appropriate to any network to which Company may provide access. Client should not post, transmit, or permit Internet access to information Client desires to keep confidential. Client is not permitted to post any material that is illegal, libelous, tortuous, or likely to result in retaliation against Company by offended users. Company reserves the right to refuse or terminate service at any time. Client will indemnify Company and hold Company harmless from any damage to Company’s business, service, equipment, network(s) operations, or reputation resulting from Client’s actions, including but not limited to any government actions, acts of vandalism or other retaliation, and any claims of libel, unfair competition, infringement of any patent, copyright, trademark, service mark, or other intellectual property right, violation of privacy, or other tort.

14. Content.

Company has the right to refuse service if Client content of information provided is deemed illegal, unethical, misleading, contains child pornography, bestiality, promotion of illicit drugs, hate groups or literature by Client and/or Client’s third-party.
Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of anothers copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email support@penguinhosting.ca.
The use of a shared, VPS or reseller account as a backup/storage device is not permitted with the exception of one backup of the same account. Please do not take backups of your backups.
Do not backup the content of your local computer to our servers. All content stored on the server must be publicly accessible via the website.
Examples of unacceptable material on all Company hosting plans include:
• Email Marketing
• Topsites
• IRC Scripts/Bots
• Proxy Scripts/Anonymizers
• Pirated Software/Warez
• Image Hosting Scripts (similar to Photobucket or Tinypic)
• AutoSurf/PTC/PTS/PPC sites
• IP Scanners
• Bruteforce Programs/Scripts/Applications
• Mail Bombers/Spam Scripts
• Large collection of MP3 files and/or DVD/CD ISO Image Files
• Banner-Ad services (commercial banner ad rotation)
• File Dump/Mirror Scripts (similar to rapidshare)
• Commercial Audio Streaming (more than one or two streams)
• Escrow/Bank Debentures
• High-Yield Interest Programs (HYIP) or Related Sites
• Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi,
MLM/Pyramid Scheme)
• Sale of any controlled substance without prior proof of appropriate permit(s)
• Prime Banks Programs
• Lottery Sites
• MUDs/RPGs/PBBGs
• Hateful/Racist/Harassment oriented sites
• Hacker focused sites/archives/programs
• Sites promoting illegal activities
• Sharing, displaying, broadcasting or distribution of pornographic materials
• Forums and/or websites that distribute warez/pirated/illegal content
• Bank Debentures/Bank Debenture Trading Programs
• Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
• Mailer Pro

ClientS who provide the above-mentioned content are in breach of the contract. Company may terminate service without notice and without any refunds of Client’s unused pre-paid portion of funds.

15. Resource Usage.

The following are restrictions on shared hosting plans:
• Taking up more than 20% system resources for more than 90 seconds. Numerous activities can cause this such as CGI scripts, FTP, PHP, HTTP, MySQL, etc
• Running unattended standalone server side daemons such as IRCD
• Running any scripts (web spider) which indexes websites
• Running any BitTorrent application, tracker, or Client. You may link to torrents off-site, but may not host or store
• Running any file-sharing/peer-to-peer activities
• Running any game servers such as Counter Strike, Half Life, BattleField 1942, etc.
• Running any cronjobs less than 15 minute intervals
• Accounts found to be exceeding the 50,000 inode limit will automatically be removed from our backup system to avoid over-usage. Every file (webpage, image file, email, etc) on your account uses up 1 inode. The use of more than 250,000 inodes on any shared account may potentially result in a warning first, and if no action is taken future suspension

16. Backups and Data Loss.

A backup service is available and provided as a courtesy to our shared and reseller customers. This backup service is NOT used or operated by the Company and needs to be utilized by the Client or another Website services provider. Company will not be responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored.

17. Uptime Guarantee.

Company cannot guarantee uptime due to unforeseen happenings such as power outages, internal website script failures etc. For understanding purposes, the uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services.

18. Unsolicited Commercial Email.

The Company network(s) may not be used to transact Unsolicited Commercial E-mail (UCE). This is commonly referred to as SPAM. Clients of Company may not use, or permit others to use, the Company network(s) to send UCE. Company will not host, or permit hosting of sites or information that is advertised by UCE from other networks. Company will not permit Clients to SPAM newsgroups, or SPAM from other networks or that may or may not point to a site on Company’s network. Clients that transact UCE are in breach of this contract. Every reasonable attempt will be made to contact the Client and allow them to resolve the problem or complaint before taking action. Company reserves the right to place a temporary block in the event the Client is unreachable, or is unable to stop the UCE. Client will constitute this contract as “fair warning” as to Company’s strict “NO SPAM” policy. Company reserves the right to terminate services without any refunds of the unused portion prepaid by Client when Client is in violation of “NO SPAM” policy. Notice given by electronic mail shall be deemed received on (1) business day after it is posted to the recipient’s e-mail address. Company will also fine the individual $500.00 per SPAM incident.

19. Warranty and Assumption of Risk.

Client uses Company services at Client’s own risk. Company makes no warranty expressed or implied, including but not limited to any warranty of merchantability or fitness for a particular purpose. Company shall not be liable for any loss or other damage, including but not limited to special, incidental, consequential, or punitive damages, resulting from any failure to provide service or from any termination of service. Company has no control whatsoever and shall not be responsible to Client for the content of any web site or for the content of any third-party material passing through or associated with Client’s web site, some of which may be illegal, inaccurate, adult in nature, harmful, or offensive.

20. Term of Contract, Termination, and Renewal.

• All contracts are on a recurring basis. Client shall pay Company recurring fees (hereinafter “Recurring Fees”), plus bandwidth charges as outlined on invoice (see invoice). Pre-payment of recurring fees is due by the time stated on Company’s invoice. Amounts past due may result in the termination of Client’s account. Taxes, special services and third party charges will be stated separately on the invoice. Client shall pay all taxes, fees , and governmental charges. Company may change prices without notice and it is the Client’s responsibility to check the website for updates. Grandfathered accounts will not be affected.

• All cancellations by Client of service or changes in service must be done in writing to Company. It can be done by email (support@penguinhosting.ca) or via regular postal to PenguinHosting / The Image Stop ltd. 47 Cedarbrook Close SW, Calgary , AB, T2W5B8. A 30 day money back guarantee is offered on shared hosting plans. If cancellation is requested within 30 days of initial setup date, then the full hosting fees will be refunded. After 30 days of cancellation, it will refunded on a prorated basis of any unused time. The following methods of payments are non-refundable, and refunds will be posted as credit to the hosting account: bank wire transfers, Interac Email Transfers, cheques, and money orders. There are no refunds on dedicated servers, install fees for custom software, domain name purchases, or SSL purchases. Only first-time accounts are eligible for a refund. For example, if you’ve had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us. Violations of the legal agreement will waive the refund policy.

• If Client breaches any part of this contract and Company has to engage the services of an attorney, the Client will pay any and all of Company’s reasonable attorney fees and court costs.

• All Client fees are due in advance of the first day of the relevant term. For example, the fees for such services, ie Web Hosting, during the term shall be due on the Effective Date or before the provision of Services. The fees for Services for Renewal Term are due on or prior to the Anniversary Date for such Renewal Term. The amount due may be adjusted by addition of Services, Upgrade of Services, discontinuance of services or downgrade of services and through the use of any SLA Credits applied. The fees for additional or upgraded services for which the “Order” is accepted on the anniversary billing date will be due on the anniversary billing date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one time pro-rata charge on the next Billing date. All fees will be due for the following renewal terms until cancelled in Section 13a. In the event that a customer does not pay service fees after 60 days of the the Renewal invoice, the services will be suspended and the customer will be assessed a fee of $25.00. The overdue invoice and additional fee must be paid in full in order for services to be re-instated. If full payment is not received within 30 days of account suspension, all services including Web Hosting Servers and Data, may become inaccessible and hosting be reclaimed. All data stored on the website hosting servers may be fully deleted and lost at this time and is not the responsibility of The Image Stop ltd. / PenguinHosting.ca.

• Client uses Company services at Client’s own risk. Company makes no warranty expressed or implied, including but not limited to any warranty of merchantability or fitness for a particular purpose. Company shall not be liable for any loss or other damage, including but not limited to special, incidental, consequential, or punitive damages, resulting from any failure to provide service or from any termination of service. Company also reserves the right to refuse service and cancel Client at anytime. Company has no control whatsoever and shall not be responsible to Client for the content of any web site or for the content of any third-party material passing through or associated with Client’s web site, some of which may be illegal, inaccurate, adult in nature, harmful, or offensive.

21. Customer Contact and Solicitation.

Company agrees to not contact any customer of the Client for the solicitation of any extended services beyond the website hosting as agreed upon in this agreement. If a customer of the Client is to contact the Company directly it will direct the customer to contact the Client unless otherwise agreed upon in writing between the Company and Client.

22. Limitation of Liability.

In no event shall Company or any of its officers, contractors, or employees be liable for any loss of profit or revenue by Client or for any consequential, incidental, special or exemplary damages incurred or suffered by Client, nor for any loss of power or heating, ventilation, and air conditioning interruption, even if Company has been advised of the possibility of such loss or damage. Client shall indemnify and hold harmless Company from and against any all claims, costs, expenses or liability arising out of Client’s (inclusive Client’s officer, contractors, employee agents and invitees) collective or individual use, occupancy or operation of Client’s web site content and/or information.

23. Changes.

Company reserves the right to revise its policies at any time without notice.

24. Transfer of Agreement.

Client may not assign or transfer this Agreement, in whole or in part without the prior written consent of Company. In the event that Client contemplates whole or partial sale of it’s business, ownership change, or change in jurisdiction, Client shall notify Company by mail, facsimile or email no less than 60 days prior to the effective date of the event.

25. Termination.

Company may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events: 1) failure to comply with any provisions of the Agreement upon receipt of written notice from Company of said failure, 2) appointment of Receiver or upon the filing of any application by Client seeking relief from creditors, 3) upon mutual agreement in writing of Company and Client.

26. Disputes.

If legal proceedings are commenced to resolve a dispute arising out of, or relating to, this Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.

27. Indemnification.

Client shall indemnify and hold Company harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Company directly or indirectly arising from or in connection with Client’s marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.

28. General.

If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta. Exclusive jurisdiction and venue shall be in city of Calgary, Alberta Court of Queen’s Bench. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.

Each party represents and warrants that, on the first date of hosted services and all dates of hosted services thereafter, they are authorized to enter into this Agreement in entirety and duly bind their respective principals.

**NEW** 29. Dedicated IP Addresses – Addition to Hosting Packages.

As part of any shared hosting plans, clients share space on a hosting server and the IP address connected to it. This can mean that company (A) would share hosting space with company (B) through (Z) regardless as to where they are located or what content their websites provide. This can be an issue with potential website / IP Blacklisting which can cause an innocent website by company (A) to be Blacklisted due to negligence by company (R) … as an example. Penguin Hosting uses a dedicated IP for it’s clients so that only it’s locally focussed clientele is hosted together. By ‘knowing’ our clients we reduce the risk of such occurrences as we stay involved with our clients and their websites.

30. Cpanel.

All clients will have their own Cpanel access to their website hosting. Please consult with your representative from PenguinHosting / The Image Stop for details.