Terms of Service
Table of Content:
This Agreement between Templatehoster.com (a division of The Creation Studio) (hereafter the “Host”), and the purchaser, (hereafter referred to as the “Client”) is made effective for the period of time (“Term”) corresponding to the payment plan chosen by the Client.
WHEREAS:
1. Host operates and provides related services with respect to an electronic information system consisting of Internet access via high speed communication lines, routers, and other necessary computer equipment; and
2. Client desires the services of Host and use of its System for Website hosting, content management and telecommunications services to maintain the availability of Client’s Web site(s) via the Internet.
NOW THEREFORE, Client hereby engages Host to host its Web content, e-mail, office applications and/or provide other telecommunications services and Host hereby accepts such engagement, pursuant to the terms and conditions set forth herein:
1. Definitions
(1) “Agreement” means this Hosting Services Agreement, including all Statements of Service and corresponding exhibits issued pursuant to this Agreement, and the Acceptable Use Policy of the Host as amended from time to time.
(2) “Web Site” means the World Wide Web site including any template provided by Host on which Client Content will appear.
(3) “Client Content” means all text, words, names, likenesses, trade marks, logos, artwork, graphics, video, audio, e-mail, HTML, JAVA or other coding, domain names, image maps, links, software applications, or other content that appear on, or are provided to Host by Client for uploading to or downloading from, the Client’s Web Site, but does not include any website template or associated code provided by Host as part of the Services described herein.
2. Scope of Services
Host shall host Client’s Web Site, e-mail, provide a user-content management system, and training and/or tutorials for use as set forth in this Agreement and each Statement of Service issued under this Agreement (“Services”) attached hereto as EXHIBIT “A”. If there is any difference between the terms of any Statement of Service and any other portion of this Agreement, the terms of the Statement of Service shall control. Provided, however, that in no event shall the parties’ relationship be different as stated in Section 17.
3. Client’s Representations, Warranties, and Responsibilities
(1) Client shall assume full responsibility for all Client Content as it appears on the Web Site and is solely responsible for its choice of content vendors and for negotiating terms and conditions with such vendors.
(2) Client represents and warrants that:
(a) Client is the owner, valid licensee, or authorized user of the Client Content and each element thereof;
(b) the use of the Client Content shall not infringe the copyright, trade secret, trade mark or other proprietary or intellectual property right of any third party, or constitute a defamation, invasion of privacy, or violation of any right of publicity or other third party right;
(c) the Client Content complies with all legislation, rules and regulations of all applicable jurisdictions including without limitation, potential liability for posting or transmitting data which is threatening, obscene, indecent, defamatory or in violation of export control laws;
(d) use of the Web Site by any party, other than Host, will conform to general standards of behaviour for the Internet;
(e) Client shall use every responsible measure to ensure that content is free from viruses, worms, Trojan horses, and any other malicious code;
(f) Client hereby acknowledges that there is no guarantee of security on the Internet and no guarantee that the Web Site or Client Content will be secure; and
(g) Client has full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.
(3) Under this agreement, Client must comply with Host’s then current “Acceptable Use Policy”, as updated from time to time by Host, which can be viewed at http://www.templatehoster.com/acceptable-use. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY CLICKING ON THE BUTTON MARKED “I ACCEPT” OR BY SIGNING THIS AGREEMENT YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND HOST’S ACCEPTABLE USE POLICY.
4. Host Responsibilities
(1) Host shall provide the Services specified in the Statement of Service attached hereto as EXHIBIT “A”. With the exception of Client Content, unless specified otherwise in a Statement of Service, Host shall procure all hardware, software, materials and other items necessary for implementing this Agreement and shall own all right, title, and interest in and to such items. Host may in its sole discretion change such hardware and software so long as there is no material change in functionality of the Web Site. Host assumes no responsibility for third parties who break encryption coding so that data being transmitted is visible to others.
(2) If Client so requires, Host shall provide assistance to Client in securing one or more domain names, sub-domain names or URLs associated therewith (“Domain Names”); provided that prior to Host providing such assistance, Client shall engage in an appropriate trade mark search reasonably satisfactory to Host in order to establish that no domain name proposed by Client shall infringe upon the trade mark, service mark, name, or logo of any third party.
(3) Additional Host obligations, if any, are listed in the Statement of Service attached hereto as EXHIBIT “A”.
5. Backups and Loss of Data
Client is solely and completely responsible for ensuring and maintaining any backup copy of their site content on a location other than Host’s server, such as the Client’s computer hard drive. Host does not provide backup or any site duplication services, nor does Host guarantee or warrant in any way that Client content is secure from destruction, deletion or malicious acts by third parties or Acts of God. However, in the event of termination of this Agreement, Client content may be kept by Host in its sole and absolute discretion for up to a period of one year before deletion and destruction, as a free customer service and in anticipation of contract or account re-activation.
6. Intellectual Property
(1) This Agreement does not transfer from Host to Client any Host technology, and all right, title and interest in and to Host technology will remain solely with Host. Except for the rights expressly granted herein, this Agreement does not transfer from Client to Host any Client technology, and all right, title and interest in and to Client technology will remain solely with Client. Host and Client each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party.
(2) No press release, announcement, publication, or other use of the other party’s insignia logos, trade marks, trade name or service marks (collectively, the “Marks”) shall be made by either party without the other party’s prior written approval. Provided, however, upon execution of this Agreement, Host may list Client as a client of Host on Host’s Web Site and in all other Host marketing and/or advertising materials, including all digital and print materials.
7. Fees and Taxes
In consideration of the activities contemplated in this Agreement, Client shall pay to Host the fees set forth in the Statement of Service attached hereto as Exhibit “A”. Client shall pay each invoice for fees within thirty (30) days following the invoice date. Fees do not include, and Client shall be solely responsible for any and all taxes of whatever nature (“Taxes”), which are levied, imposed or due by reason of sale or distribution of products, services, or information from the Web Site or any services rendered under this Agreement. Host shall not be liable for, and Client shall indemnify Host against liability for, all such Taxes.
8. IP Addresses
Host may designate for Client’s use on a temporary basis Internet Protocol Address (“IP Addresses”) from the IP allotment assigned to Host. Client acknowledges that the IP addresses are the sole property of Host, and are temporarily designated for Client’s use as part of the Service Agreement. Host reserves the right to change IP address designations at any time. Host shall use reasonable efforts to minimize inconvenience to Client resulting from such changes, and shall give Client reasonable notice of changes. Client agrees that it will have no right to use IP Addresses assigned to Host upon termination of this Agreement, and that any change in IP Addresses Client may need to make after termination of this Agreement shall be the sole responsibility of Client.
9. Term
THIS AGREEMENT SHALL COMMENCE ON THE DATE UPON WHICH IT IS ACCEPTED BY CLICKING ON THE BUTTON MARKED “I ACCEPT” BELOW OR BY SIGNING THIS AGREEMENT AND SHALL CONTINUE IN EFFECT FOR A MINIMUM PERIOD OF TWELVE (12) MONTHS, WHEREAFTER IT SHALL BE CONTINUED ON A MONTH-TO-MONTH BASIS, UNLESS OR UNTIL IT IS TERMINATED PURSUANT TO THE PROVISIONS OF SECTION 10, BELOW.
10. Termination
(1) By Host for cause. This Agreement may be terminated by Host and the Client Web Site removed from the World Wide Web at any time in the event that Client commits any material default hereunder which Client fails to remedy within ten (10) days after having been notified either verbally or in writing (whether by electronic transmission or on paper) of the default. If Client fails to cure the default within the ten-day period, Host may suspend or completely remove Client’s Web Site from the World Wide Web in its sole discretion, assess Client de-installation fees of $50.00 per site, and condition the continued provision of services and restoration of Client’s Web Site to the World Wide Web upon Client’s payment of all outstanding charges, including a late payment charge of $5.00 for each missed payment, and a reinstallation fee of $100.00 per site. Provided, however, that Host may terminate this Agreement immediately, with or without notice, if the Client Web Site contains any content which Host in its sole discretion determines could cause liability to Host and Client does not remove such content immediately upon Host’s request, or Client declares bankruptcy, becomes insolvent, ceases its normal business operations, or engages in business practice which Host in its sole discretion determines to be unfair or deceptive.
(2) By Client for cause. This Agreement may be terminated by Client in the event that Host commits any material default hereunder which Host fails to remedy within ten (10) days after having been notified in writing (whether by electronic transmission or on paper) of the default.
(3) By either party for convenience. If after the initial twelve (12) month term of this Agreement, the term of a Statement of Service ends and there are no other Statements of Service attached hereto under which services are still being provided by Host, either party may terminate this Agreement by providing thirty (30) days notice to the other party. If Client decides to discontinue Service, request must be made in writing using Host’s cancellation form published from time to time at https:\\www.templatehoster.com/cancel, completed in full and submitted according to Host’s published directions. Upon receipt, Host will confirm cancellation of account to Client by email transmission. Client is responsible for arranging for a new name server within the thirty (30) days’ time limited. If Host decides to discontinue Service, Client is responsible for arranging for a new hosting environment within the thirty (30) days’ time limited.
(4) Once a Client’s account has been cancelled this Agreement shall be terminated and all files, including site files and any data, including Client data contained in any database or on any server maintained by Host for Client will be deleted from Host’s server and destroyed, together with Client’s email accounts. Host is not responsible for the loss of any email remaining on the server and which was not obtained by the Client prior to account cancellation.
(5) Any Client wishing to resume service at any subsequent time with Host will be required to enter a fresh Agreement and re-create an account with Host, and be subject to any setup fee then in place or advertised on www.TemplateHoster.com.
(6) Upon termination of this Agreement, Client shall retain ownership of Client Content and Client’s Domain Names. Host shall retain control of all hardware, software, materials, and other items provided by Host pursuant to this Agreement. Sections 3 (Client Warranties), 6 (Intellectual Property), 7 (Fees and Taxes), 11 (Exclusion of Warranties), 12 (Indemnity), 14 (Confidentiality), and 15 (Arbitration) of this Agreement shall survive the termination of this Agreement irrespective of the reason for termination, subject to Client’s obligation to pay Host all compensation earned for services rendered under this Agreement through the effective date of such termination.
11. Exclusion of Warranties
APART FROM THE SPECIFIC WARRANTIES SET OUT HEREIN OR IN A STATEMENT OF SERVICE ATTACHED HERETO, ALL SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. NEITHER HOST NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR LICENSORS WARRANTS THAT THE SERVICES OR PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY WARRANT THAT CERTAIN RESULTS MAY BE OBTAINED BY CLIENT IN CONNECTION WITH ITS USE OF THE CLIENT WEB SITE. HOST AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR REPRESENTATION EITHER EXPRESS OR IMPLIED NOR ARE THERE ANY CONDITIONS REGARDING THE MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF THE CLIENT WEB SITE OR ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT. HOST DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY HOST.
12. Indemnity
Notwithstanding anything to the contrary in this Agreement, Client shall indemnify and hold Host, its affiliates, directors, officers, employees, agents and licensors harmless from and against all claims, action, expenses, losses, and liabilities arising from or relating to the following:
(a) any claim inconsistent with Client’s representations and warranties contained herein,
(b) any claim based upon alleged errors, omissions, or misstatements in any Client Content,
(c) any claim based upon a Domain Name registered or used by Host at Client’s direction or request,
(d) any claim arising out of or relating to the Web Site, Client Content, a commercial transaction conducted via the Web Site, or otherwise under this Agreement (including, but not limited to, any claim resulting from any content posted to the Web Site by Client or Client’s employees, agents or any other third party), and
(e) any injury to person or property, arising out of or caused by a product, service, or information, whether or not defective, that is sold or distributed from the Web Site.
13. Limitation of Liability
(1) Host shall not be liable for any delay or failure to carry out the services provided hereunder if such delay or failure is due to any cause beyond the control of Host, including without limitation, restrictions of law, regulations, orders or other government directives, labour disputes, acts of God, acts of third party vendors or suppliers, or mechanical or electronic breakdowns.
(2) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFITS, GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE HOSTING SERVICES, WHETHER IN AN ACTION BASED ON ANY LEGAL THEORY, CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Confidentiality
During the course of performance of this Agreement, each party may disclose to the other certain information (“Confidential Information”). Each party shall hold the other party’s Confidential Information in confidence and shall use its best efforts to protect it. Each party shall not disclose the other party’s Confidential Information to any third party, and shall use it for the sole purpose of performing under this Agreement. At the conclusion of this Agreement, each party shall either return the other’s Confidential Information in its possession (including all copies) or shall, at the disclosing party’s direction or on its own initiative, destroy the other party’s Confidential Information (including all copies) and certify its destruction to the disclosing party. The term “Confidential Information” shall not include any information which:
(a) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the receiving party;
(b) the receiving party can demonstrate was already in its possession prior to disclosure hereunder or is subsequently disclosed to the receiving party with no obligation of confidentiality by a third party having the right to disclose it; or
(c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
15. Arbitration
Except for injunctive relief for violations of Section 14 regarding Confidential Information, any and all controversies, claims and disputes arising out of or relating to this Agreement, or the construction, interpretation, breach, termination, enforceability or validity thereof whether such dispute is based upon statute, tort, contract, common law or otherwise, and whether such dispute existed prior to or arises after the date of this Agreement shall be settled by arbitration pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17 (as amended), of Ontario, Canada or any successor legislation thereto. The arbitration proceedings shall be filed and conducted in Owen Sound, Ontario, Canada. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This Agreement shall be governed by, construed under and enforced in accordance with the substantive laws, as opposed to the laws of conflict, of the Province of Ontario, Canada.
16. Notices
Any notice required or permitted to be given under this Agreement shall be in writing unless otherwise indicated herein and deemed given and effective upon delivery if sent by personal delivery or by facsimile transmission or five (5) days after posting if sent by prepaid registered mail, return receipt requested, with postage pre-paid and addressed as follows:
To the Host:
Templatehoster.com
PO Box 67
Owen Sound, Ontario
N4K 1M1
CANADA
To the Client:
At the last address provided by the Client pursuant to this Agreement,
or any address publicly available through internet search or telephone directory.
17. Relationship Between Parties
The parties intend that an independent contractor relationship shall be created by this Agreement. Nothing in this Agreement shall be construed as establishing a partnership, joint venture, or employer-employee relationship between the parties. Host may subcontract to third parties for implementation of services provided to Client pursuant to this Agreement.
18. Assignment
This Agreement shall be binding on, inure to the benefit of, and be enforceable by Host and its respective heirs, successors and valid assigns. Client shall not assign or transfer the rights or obligations associated with this Agreement, in whole or in part, without Host’s express written consent, which shall not be unreasonably withheld.
19. Affiliate Program
Each client will have an Affiliate opportunity whereby there is an affiliate section in the client's "Client Area" of TemplateHoster.com's website. By client clicking to activate their Affiliate program, or requesting that TemplateHoster.com activate their Afflitate Program, client agrees to Affiliate Agreement attached to Agreement.
20. Entire Agreement/Severability
This Agreement, including all attached Statement(s) of Service, Affliate Agreement and the Acceptable Use Policy, supersedes and cancels all prior negotiations, communications, understandings and Agreements between Host and Client. No oral Agreements, before or after execution of this Agreement, shall be binding until they are reduced to writing and signed by an authorized officer of both Host and Client. In the event that any provision of this Agreement is held void or unenforceable, the entire balance of this Agreement shall remain in full force and effect.
EXHIBIT A
Statement of Service
The Essence of TemplateHoster.com:
Client Use of Website Templates and Content Management System.
Host agrees to provide Template or “bare bones” website form for viewing by interested persons using the internet, and a Client or designated user-directed “content management system” for the inputting and internet display of Client content. Templates provided for Client use and hosted by Host as part of Client’s service may only be used on Host’s servers as part of the service. Client may not transfer to another hosting provider the site that is provided for its use as part of this Statement of Service or service agreement. Any such transfer or misuse shall be considered a material breach of this Agreement and be addressed accordingly by Host.
Templates showcased for Clients or potential Clients to choose as part of Host’s service will not be significantly altered from their current look by Host, other than Host will add the customer’s logo or company name in the specified location as illustrated on each template’s demo site.
Subject to all other terms of the Agreement to which this Exhibit forms a part, and the Acceptable User Policy, Host agrees to provide email accounts to Client.
Client will not have access to root server control or FTP service as part of the service provided.
Client is ultimately responsible for the use made of their site by Client and third parties. A Client opting to use the Content Management features offered for its site will receive a username and password for the upkeep of the site and also have the ability to modify the password. Client is responsible to ensure that they have a safe and secure password for access to the site. Host will not be responsible for any third party access to the site, which includes the act of hacking a Client site, or for the loss or theft of any password kept in the Client’s possession.
Payment Information
Client agrees to pay for services provided by Host for all months in advance of service being provided and understands that payment for ongoing service from Host will be on an automatically recurring month-to-month basis after the initial 12 month period. Client may, at their discretion, opt to renew on a yearly basis upon request.
The amount of Client’s payment shall be determined by adding
i) the advertised rate for service by Host on its website from time to time,
ii) taxes and other charges required to be collected and remitted by Host at law, and
iii) any late or penalty fees described in this Agreement.
Host will provide reasonable written notice of increases in rates for service made from time to time, by email or address last provided by Client to Host and Host reserves the right in its sole discretion to increase the price for services upon at least thirty days’ notice after the initial twelve month period of service expires.
Client will ensure that all payment information is current and up to date and that payment will be made on time by any method of payment made available to Client by Host.
Host has a Privacy Policy which may be viewed at: http://www.templatehoster.com/privacy .
“TemplateHoster.com” is a tradename of TemplateHoster.com and “TemplateHoster.com – where website design and hosting meet” and “Hosted web development” is a trademark of TemplateHoster.com