This Service Agreement governs customer's purchase and use, in any manner, of all services, ordered by customer and accepted
by HostWindsor Network Services Inc. (Hostwindsor.com) and describes the terms and conditions that apply to such purchase
and use of the Services. Hostwindsor reserves the right to change or modify any of the terms and conditions contained in
this Agreement, the Addendum and any policy or guideline incorporated by reference at any time and from time to time in its
sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any
modification will be effective upon posting of the revisions on our site.
HostWindsor may post changes or modifications to referenced policies and guidelines without notice to you. Your continued
use of the Services following HostWindsor posting of any changes or modifications will constitute your acceptance of such
changes or modifications. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES
AND IMMEDIATELY NOTIFY HostWindsor Network Services Inc. (HostWindsor) OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER
DESCRIBED BELOW.
1. This Agreement shall be for an "Initial Term" of thirty (30) days for all services. Customer agrees to all terms and
conditions of services provided by HostWindsor, beginning upon receipt by fax, e-mail, or express mail.
2. All charges for Services (including installation and professional support fees) are non-refundable and must be paid in
advance according to the then current price applicable to the Services. If customer chooses to pay by credit card upon
registering for Hosting services, customer thereby authorizes HostWindsor to charge your credit or debit card to pay for
any charges that may apply to your account. Customer agrees that HostWindsor may accumulate any supplemental charges, as
described in the Order Form, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed
$20 and then charge your card. Customer must notify HostWindsor of any changes to your card account (including, without
limitation, applicable account number or cancellation or expiration of the account), your billing address, or any
information that may prohibit Hostwindsor from charging your account.
HostWindsor may also send periodic invoices to customer for any applicable Supplemental Charges associated with your use of
the Services. Customer agrees to pay to HostWindsor the amount indicated in each invoice by the due date reflected on the
invoice. If customer fails to pay any fees and taxes within three (3) days from applicable due date for credit card or
invoice payments, a late payment fee of $10.00 become payable by you to HostWindsor. In addition, customer's failure to
fully pay all fees and taxes within five (5) days after the applicable due date will be deemed a material breach of this
Agreement, justifying HostWindsor suspension of its performance of the Services and/or termination of this Agreement.
Customer is responsible for any fees associated with reinstated of Services. Any such termination would not relieve customer
from paying past due fees plus interest. In the event of collection enforcement, customer will be liable for any costs
associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection
agency fees.
3. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as
the Initial Term unless you provide HostWindsor with notice of termination either (a) at least thirty (30) days prior to
the end of the Initial Term or the Renewal Term, whichever is then applicable.
4. Initial payment is due upon activation of account. Activation takes effect on the date of receipt of payment, and will
be renewed automatically for identical successive periods. Any changes made to the customer's package shall be billed
accordingly.
5. All orders are subject to acceptance by HostWindsor. An order will be deemed accepted by our company when confirmation
of the order is sent to the customer. We may refuse to accept any order, or delay acceptance awaiting completion of
conditions the company may choose to exercise. Such refusal of such conditions may not be unreasonable, however, and
HostWindsor agrees to provide the customer with reasonable notice by E-mail or fax of any intent to delay or decline the
acceptance of any order.
6. HostWindsor reserves the right to suspend the customer's account and services without notice should there be any problems
with the customers method of payment. This includes expired credit cards, declined credit cards, inactive credit cards, and
invalid checks.
7. Bandwidth utilization will be monitored and calculated by the following method:
Monthly Avg. In + Monthly Avg. Out / 8 Bits x 60 seconds x 60 minutes x 24 hours x 30.5 days = Total Data Transfer (GB).
Customers will be billed at $1.00/GB for overage.
8. HostWindsor reserve the right to levy a penalty fee of $10.00 per violation of the Acceptable Use Policy and Service
Agreement.
I. Material & Products
1. HostWindsor will exercise no control whatsoever over the content of the information passing through the network or on the
customer's web sites. HostWindsor makes no warranties or guarantees of any kind, whether expressed or implied for the
service it is providing. Hostwindsor also disclaims any warranty of merchantability or fitness for particular purpose and
will not be responsible for any damages that may be suffered by the customer, including loss of data resulting from delays,
non-deliveries or service interruptions or gaps by any cause or errors or omissions of the customer. HostWindsor is not
responsible for any loss, erasure, or corruption of customer's data or files whatsoever. Use of any information obtained by
way of Hostwindsor is at the customer's own risk, and the company specifically denies any responsibility for the accuracy or
quality of information obtained through its services. Network connectivity represents the speed of connection to our network
and does not represent guarantees of available end to end bandwidth.
HostWindsor expressly limits its damages to the customer for any non-accessibility time or other down time to the pro-rate
monthly charge during the system unavailability. Hostwindsor specifically denies any responsibilities for any damages
arising from a consequence of such unavailability. In the event that this material is not "server-ready", HostWindsor may,
at its option and at any time, reject this material, including but not limited to after it has been put on our servers.
HostWindsor agrees to notify customer immediately of our refusal of the material and afford customer the opportunity to
amend or modify the material to satisfy the needs and/or requirements of the company. If the customer fails to modify the
material, as directed by HostWindsor, within a reasonable period of time, which shall be determined between the parties
themselves, the Agreement shall be terminated.
II. Uptime Guarantee
Hostwindsor guarantees that our network will be available 99% (no more than 1 hour) of the time in a given month excluding
scheduled maintenance. In the event that our network is inaccessible for more than one hour during any thirty (30) days
period, each customer will automatically be granted an additional 10GB of data transfer free of charge for the following
month as compensation for the aforementioned downtime. Network uptime includes functioning of all network infrastructure
including routers, switches and cabling. Network downtime exists when a particular customer is unable to transmit and
receive data and HostWindsor records such failure in the Hostwindsor trouble ticket system. Network downtime is measured
from the time the trouble ticket is opened by a customer to the time the server is once again able to transmit and receive
data.
III. Warranties & Representations
Customer warrants, represents, and covenants to HostWindsor that (a) you are at least eighteen (18) years of age; (b) you
possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes
and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible
for the use of your account; (e) you have acquired or will acquire all authorizations necessary for hypertext links to
third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made
available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties,
guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe
or violate any right of any third party (including any intellectual property rights) or violate any applicable law,
regulation or ordinance.
IV. Trademarks & Copyrights
Customer warrants that it has the right to use the applicable trademarks, if any. HostWindsor may request the right to use
such trademarks in connection with our service. Customer will review such a request promptly, and not unreasonably withhold
such permission.
V. Termination
This Agreement may be terminated by HostWindsor, without cause, by giving the other party three (3) days notice via e-mail
or fax. In such event, the company will be required to pay to the other party an amount equal to the unused and prorated
portion of service excluding any setup charges. Notwithstanding the above, Hostwindsor may terminate the service under this
Agreement at any time, without penalty, if the customer fails to comply with the terms of this Agreement. It is the
customer's responsibility to point your domain to another service provider upon termination, cancellation or discontinuation
of service.
VI. Limited Liability
1. Customer expressly agrees that use of HostWindsor Servers is at customer's sole risk. Neither the company, its employees,
agents, resellers, third party information providers, merchants licensers or the like, warrant that Hostwindsor service will
not be interrupted or be error free; nor do they make any warranty as to the results that might be obtained from the use of
the Server service or as to the accuracy, or reliability of any information service or merchandise contained in or provided
through our network, unless otherwise expressly stated in this Agreement. Customer also acknowledge and accept that any
damages will be limited to no more than 100% of the previous month's invoice.
2. Under no circumstances, including negligence, shall HostWindsor, its officers, agents or any one else be liable for any
direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service;
or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or
transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction
or unauthorized access to Hostwindsor records, programs or services. Customer hereby acknowledges that this paragraph shall
apply to all contents on all servers.
VII. Indemnification
Customer agrees that it shall defend, indemnify, save and hold HostWindsor harmless from any demands, liabilities, losses,
costs and claims, including reasonable attorneys fees, ("Liabilities") asserted against the company, its agents, its
customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be
performed or any product sold by the customer, its agents, employees or assigns. Customer agrees to defend, indemnify and
hold harmless HostWindsor against Liabilities arising out of (i) any injury to person or property caused by any products
sold or otherwise distributed in connection with our servers; (ii) any material supplied by the customer infringing or
allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective
product which customer sold on HostWindsor servers.
VIII. Partial Invalidity
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions
shall nevertheless remain in full force and effect. HostWindsor and Customer agree to renegotiate in good faith any term
held invalid and to be bound by mutually agreed substitute provision.
IX. Disputes
The parties shall try to resolve all disputes that might arise out of this agreement in a spirit of cooperation without
formal procedures. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and
other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either
party. Arbitration shall take place in Windsor Ontario, Canada. The arbitration will take place before an
arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a
third arbitrator and determine the third arbitrator's pay. Each party shall have one veto over the choice of the third
arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by
secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and
shall pay half of the other costs of the arbitration proceeding.
Each party shall have the right to have the proceedings transcribed. The arbitrators will not have the authority to award
punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a
written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration;
the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the
decision will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it
was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having
jurisdiction.
Should any legal action permissible under this agreement be taken to enforce the conditions and terms of this agreement, in
particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable
legal fees and expenses incurred at the trial and appellate levels.
X. Confidentiality
Customer acknowledges that by reason of their relationship, both customer and HostWindsor may have access to certain
products, information and materials relating to the other party's business, which may include business plans, customers,
software technology, and marketing plans that are confidential and of substantial value to either party, respectively,
and which value would be impaired if such information were disclosed to third parties. Consequently, both HostWindsor and
customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to
any third party, any such information revealed to it by either party, as the case may be.
Customer and HostWindsor further agree that it will take every appropriate precaution to protect the confidentiality of
such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of
any such confidential information in its possession, and all confidential documents shall be returned to the rightful
owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon
any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will
not be contested by the customer or HostWindsor.
XI. Notices
Except with respect to service of process as set forth in paragraph, all notices may be sent by e-mail, fax, or express
mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence
of successful transmission shall be retained.
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