HOSTING SERVICES AGREEMENT
THIS AGREEMENT effective as of August 3, 2015
BETWEEN:
DataCom Network Services Inc. (“DataCom”)
a federally incorporated corporation operating under the laws of the Province of Ontario in the Country of Canada,
THE FIRST PARTY,
– and –
You (“Client”)
an individual, organization, company, or corporation,
THE SECOND PARTY,
WHEREAS DataCom is in the business of offering hosting services and technology management services and Client is the operator and owner and of and all right title and interest, including copyright(s), service mark(s) and trademark(s), in and to, where applicable, its website(s), domain(s), SSL certificate(s), email, and other provided services (the “Services”); and
WHEREAS Client wishes to retain the services of DataCom for hosting purposes on DataCom’s servers and network and provide other related services;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises, mutual covenants and agreements herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Services
(a) DataCom shall provide hosting and related services to Client in accordance with the terms of this Agreement. The hosting services to be provided by DataCom are described in the Client invoice and/or within a separate Fee Schedule and to be incorporated into this Agreement (hereinafter referred to as the “Services”).
2. Consideration
(a) In consideration for the Services provided, the Client agrees to compensate DataCom in accordance to any Fee Schedule or as outlined in the Client invoice.
(b) DataCom shall invoice the Client for the Services on a recurring (monthly, quartely, or yearly) basis and in accordance to any Fee Schedule or as outlined in the Client invoice. Any payment which is not made within thirty (30) days after the date of the invoice shall be deemed to be overdue. Interest on overdue accounts shall accrue at (3.5%) percent per month (42%) percent per annum.
3. Term of this Agreement
(a) The term of this Agreement shall commence on the date of this Agreement and shall continue for successive one year periods, which shall automatically renew under the same terms and condition set forth herein without further documentation being required, subject to DataCom’s rights of revision as described below, and unless and until either party terminates the Agreement in accordance with section 17 herein (the “Term”).
(b) DataCom reserves the right to revise all fees at any time during the Term upon ten (10) business days notice to Client of such proposed revisions, such revisions to take effect on the eleventh day after such notice is given (“Effective Date”) as defined in section 18. If such proposed revisions are unacceptable to Client, Client may terminate this Agreement pursuant to section 17. In the event that Client continues to use the Services after the Effective Date, the Client is deemed to have accepted the revisions as proposed in the notice of revision.
4. Support Services
(a) DataCom shall provide technical and support services (“Support Services”) to Client during regular business hours (9h00 to 17h00 ET, Monday to Friday except statutory holidays) via telephone, email, or other means of communication, however DataCom’s Support Services shall be limited to providing matters pertaining to DataCom’s servers, network, Internet connection, DataCom’s corporate policies and this Agreement. DataCom does not provide technical support for any third party software of any kind, downloaded from the Internet or otherwise acquired, and incorporated by the Client into their Services. Support Services are not included in the Services Fee and is invoiced to the Client at a disclosed hourly rate, which can be subject to hourly minimums, or as set within any Fee Schedule.
5. Third Party Software Prohibited
(a) Client is strictly prohibited from installing any third party software on DataCom’s servers without the express written authorization of DataCom.
(b) In the event that the authorized third party software disrupts DataCom’s servers or network, DataCom shall have the right to temporarily disable the software until the problem can be resolved.
(c) In the event that the Client installs third party software on DataCom’s servers without the express written authorization of DataCom, DataCom shall have the right to terminate the Services without notice pursuant to section 17 herein.
6. Disk Space
(a) DataCom will provide a set amount of hard disk storage space. In the event that the Client exceeds its allotted disk space, DataCom shall at its discretion notify the Client to delete the additional files and the Client agrees to delete such additional files or pay supplemental charges for additional disk space.
7. Data Transfer Rates
(a) The Client shall be limited to any amount of data transfer as specified in any Schedule, or indicated on the Client’s invoice which may include Web server traffic, FTP traffic, email traffic, and any other traffic generating program. DataCom shall have the right to disable any Services if a Client exceeds its allotted amount of data transfer.
8. Security
(a) DataCom shall protect Client with a firewall, and if required, other methods to help prevent unauthorized access to Client’s Services, which will consist of hardware and software designed and configured to control or limit access to DataCom computer and network resources. All equipment and software to accomplish a secure environment will be maintained by DataCom.
(b) DataCom shall configure all software and maintain all hardware, and upgrade and update it throughout the Term. DataCom shall at its discretion, notify Client of any breach of security deemed affecting Services provided to the Client, and at DataCom’s discretion, place limits on any of the information provided in any notices or disclosures.
9. Back-Up Data and Disaster Recovery
(a) DataCom is not responsible for any Client data backup.
(b) In the event that Client’s data is lost from DataCom servers, DataCom will assist the Client to the best of its abilities to help restore the data.
(c) DataCom will mirror Client data onsite in order to fortify uptime availability of Services provided to the Client. DataCom also encourages the Client to make regular backups and to make arrangements to mirror its data and/or Services where feasible in another location.
(d) DataCom shall not be responsible for files that cannot be recovered due to corrupt data, or unavailability of the data due to disaster or event not within DataCom’s control.
10. Reporting
(a) DataCom shall provide Client when possible, with the ability to access, when available, the following reports:
(i) number of unique visitors
(ii) number of visits to webpages, including date and time of visits
11. Client Access
(a) DataCom shall provide Client the ability to access data on Client’s Website and make changes with a password selected by the Client.
(b) Client’s connection will be secured by the firewall referred to in section 8 or by a separate dedicated virtual private network solution.
12. Confidentiality
(a) DataCom shall not disclose to any third party or use, except in connection with the performance of Services hereunder, any confidential information of the Client’s business (“Confidential Information”) learned by DataCom in the course hereof. Confidential Information shall include;
(i) Client’s plans for the Services
(ii) Specifications of the Client’s Services and any future development plans
(iii) Concepts relating to the Client’s Service not disclosed from the operation of the Services
(iv) Trade secrets of the Client
(v) Information derived from providing the Services when in operation, including but not limited to:
1. identities, contact information and credit card information of Client’s users (if applicable)
2. confidential information of the Services use, such as number of users, unique visitors and unique visits (if applicable)
(vi) Notwithstanding the forgoing, this confidentiality obligation shall not apply to any information which is already known to the public or in the event that DataCom receives a validly issued administrative or judicial order, warrant or other process that requires DataCom to disclose all or part of the Confidential Information or is otherwise required to disclose any Confidential Information in order to comply with any law.
13. Client Content
(a) The Client acknowledges that responsibility for all content provided by the Client to DataCom for the performance of the Services or otherwise included in the Website (the “Client Content”) is the sole and exclusive responsibility of the Client and that DataCom will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to the Client Content.
(b) The Client acknowledges and agrees that DataCom may elect at its sole discretion to monitor the Client Content. DataCom shall have the right, but not the obligation, to remove Client Content which is deemed, in DataCom’s sole discretion, harmful, offensive, in violation of any provision of this Agreement or breaches any law.
(c) The Client agrees to indemnify and save harmless DataCom from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Client Material provided by the Client.
14. Compliance with the Law
(a) The Client acknowledges and agrees that DataCom may elect at its sole discretion to monitor the activities of the Client on its network. Client agrees to use the Services and the network for legal purposes only. In the event that DataCom becomes aware or reasonably believes, in its sole discretion, that the Services in whole or in part are being used for illegal purposes, DataCom shall be entitled to immediately terminate the Agreement and the Services and access to the servers and network without notice in addition to any remedies to which it may be entitled under law.
The Client agrees to indemnify and save harmless DataCom from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any illegal use of the Services or the network.
15. Intellectual Property Rights
(a) DataCom owns and shall continue to own all proprietary rights in all code and content that DataCom supplies as part of the Services. Client owns and shall continue to own all proprietary rights in their Website and all software code and Client Content relating to their Website.
16. Representations, Warranties and Indemnifications
(a) DataCom represents and warrants to the Client that:
(i) It has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;
(ii) it shall use commercially reasonable efforts to perform the Services as described in any Schedule, invoice, or herein (except to the extent the Services modified by the parties from time to time by mutual written agreement) and shall provide such Services in a professional manner consistent with industry standards.
(iii) OTHER THAN THE EXPRESS WARRANTIES STATED ABOVE, DATACOM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES HEREUNDER OF ANY KIND, EITHER EXPRESS OR IMPLIED, IN RELATION TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL DATACOM BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL OR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, LOSS OF REVENUE OR LOSS OF DATA, OR AS A RESULT OF ANY INTERRUPTION OF SERVICE.
(b) Client Represents and warrants to DataCom that:
(i) It has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;
(ii) All Client Content provided hereunder shall be wholly original to the Client or the Client has acquired the necessary rights from third parties to contribute such Client Content and include it in their Services, and Client Content shall not violate any laws of any country and shall not infringe any other party’s copyright, patent, trademark or other intellectual property right.
(iii) Client shall not, nor shall it allow, authorize or assist any third party to, use the Services for any illegal purpose whatsoever.
(c) Each of the Parties hereto agree to indemnify and save harmless the other, and any of its respective successors, licensees and assigns, from any and all losses, costs, liabilities, damages and expenses (including reasonable legal fees) resulting any breach of any representation, warranty and/or covenant under this Agreement.
17. Termination
(a) Either party may terminate this Agreement at any time on sixty (60) days written notice to the other.
(b) Either party may terminate this Agreement in writing in the event the other party is in material breach of any provision of this Agreement upon ten (10) business days prior written notice, unless the party receiving notice, corrects the default within such ten business (10) day period.
(c) Notwithstanding the forgoing, pursuant to sections 5, 13 and 14, DataCom can immediately terminate this Agreement and withdraw the Services in the event that in the sole discretion of DataCom, it determines that:
(i) the Client is using or allowing, authorizing or assisting for the Services to be used for illegal purposes; or
(ii) the Client Content is in breach of any law or any right of any third party, including but not limited to any right of copyright, trademark, or other property right of any person or entity; or
(iii) the Client downloads or installs third party software to DataCom servers without the express written authorization of DataCom.
18. Notice
(a) Any notice required or permitted to be given hereunder shall be in writing and shall
be deemed given (i) when delivered electronically, or personally to any officer of the party being notified; or (ii) on the third business day after being sent by registered or certified mail, postage prepaid,
To the Client:
ADDRESS INFORMATION ON FILE WITH DATACOM
To DataCom:
DATACOM NETWORK SERVICES INC.
PO Box 332
Cornwall, ON
K6H 5T1
19. Independent Contractors
(b) DataCom and Client are independent contractors and neither shall act as the other’s agent, or be deemed an agent or employee of the other, nor shall this Agreement be interpreted as creating a partnership or joint venture or otherwise.
20. Force Majeure
(a) Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said party’s obligations when caused by Acts of God, strike, acts of war, inability of supplies or material or labor or any other cause beyond the reasonable control of the said party.
21. Severability
(a) In the event any portion of this Agreement is deemed to be invalid or unenforceable, such portion shall be deemed severed and the parties agree that the remaining portions of this Agreement shall remain in full force and effect.
22. Assignment
(a) Neither party may assign or otherwise transfer this Agreement without the written consent of the other party. This Agreement shall enure to the benefit of and bind the parties hereto and their respective legal representatives, successors and assigns.
23. Governing Law
(a) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario in the country of Canada.
24. Entire Agreement
(a) This Agreement, including the recitals and any Schedules, sets forth the entire agreement between the parties with respect to the subject matter hereof and, subject to DataCom’s rights of revision as set out in subsection 3(b) herein, the Agreement shall be amended and any changes to the Terms & Conditions will be posted and, if DataCom determines that the changes are significant, DataCom will provide a more prominent notice such as an email, to Client.
25. Counterparts
(a) This Agreement may be executed in counterparts in the same form and such parts so executed shall together form one original document and be read and construed as if one copy of the Agreement had been executed.