This Agreement is made between 4601467 MANITOBA LTD operating as NUTECH DIGITAL ("Provider") and the person listed in the hosting contract ("Customer") and sets forth the terms and conditions upon which Provider will provide to Customer the Services described in item 4 of the hosting contract (the "Services").
1. Defined Terms. As used herein, the following terms have the following meanings:
"Provider" means Nutech Digital;
"Customer" means the person defined as the “Customer” on the Agreement to which the hosting contract is created for;
"Services" means the services defined as the “Services” on the Agreement to which the hosting contract is created; and
"Web Site" means Customer’s web site to be hosted by Provider on its server pursuant to this Agreement.
2. Termination. Without limiting Subsection 8(c) below, if Customer is in default of its payment obligations as provided in Section 4 below, and fails to cure such default within thirty (30) days of written notice from Provider of such default, Provider may without further notice terminate the provision of all Services.
3. About the Web Site. The Web Site will reside within its own domain and shall have a URL address based upon the domain, such as www.xyz.com. Such domain and URL shall be and remain the property of the relevant domain name granting authority, and Customer’s sole right with respect thereto shall be to the use the name for the duration and upon the terms and conditions set forth in this Agreement.
4. Fees and Payments. Customer will pay to Provider the Fees provided for under the heading “Fees” on the Agreement to which this Annex “A” is attached, at the times provided for therein. Customer will also pay to Provider all federal, provincial and/or local taxes, if any, applicable to the provision of Services. Any amounts not paid when due shall bear interest at a rate of 2% per month (24% per annum) from their due date until payment in full.
5. Customer’s Responsibilities.
(a) Customer is solely and exclusively responsible for all design, development, content (subject to Subsection 5(b) below), update, refreshment, modification, etc., with respect to the Web Site;
(b) Customer must provide all software and other materials necessary to create and maintain the Web Site, and all telephone, computer, hardware, software and equipment necessary to access the Web Site on Provider’s server;
(c) Customer shall have or obtain the right to use all applicable trademarks, copyrights and other applicable rights, if any in connection with the Web Site, and hereby represents and warrants to Provider that it now has or shall have all such rights and hereby grants Provider the right to use such rights in connection the provision of the Services;
(d) Customer is solely responsible for the content of the Web Site; provided, however, that Customer hereby agrees that it will not, directly or indirectly, by the Web Site send, submit, post, receive or otherwise facilitate the transmission of any materials that are tortious, libelous, slanderous, defamatory, abusive, obscene, pornographic, profane, sexually explicit, threatening, or that contain blatant expressions of bigotry, racism or hate or which violate or infringe any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others or any distribution lists to be used via unsolicited electronic mail or other mass electronic mailings. Provider does not screen in advance Customer’s material submitted to Provider for posting on the Web Site, and Provider’s posting on the Web Site of material submitted by Customer does not create any express or implied approval by Provider of such material, nor does it indicate that such material complies with the terms of this Agreement;
(e) Customer will comply with all applicable provincial, federal and local laws (including, but not limited to, export/import laws and laws relating to obscenity, copyright, trademark, trade secret, libel, slander and defamation). IT IS CUSTOMER’S SOLE RESPONSIBILITY TO BECOME FAMILIAR WITH AND TO COMPLY WILL ALL LAWS THAT MIGHT RELATE TO THE WEB SITE; and
(f) Any and all domain registration fees will be the responsibility of Customer.
6. Acknowledgements and Limitations. Customer acknowledges and agrees as follows:
(a) Provider will incur no liability for any claim, whether in contract, tort, warranty, strict liability, product liability or any other theory of recovery (including negligence but excepting only intentional malfeasance) relating in any manner to the Web Site;
(b) Provider exercises no control over the content of its hosted web sites or the data transmitted on its network; provided, however, the transmission, creation, or display of any materials by Customer on the Web Site in violation of applicable laws or regulations or in violation of any of Customer’s covenants herein is strictly prohibited and is grounds for the immediate termination of this Agreement or suspension of Services;
(c) Customer may only use Services for lawful purposes. Transmission of any material that is in violation of any applicable laws or regulations is strictly prohibited. Without limiting Subsection 6(b) above, Provider reserves the right to terminate this Agreement or the provision of Services to Customer hereunder at any time that Customer’s use of the Services is deemed by Provider to jeopardize the mutual benefit and harmony enjoyed by Provider and its subscribers;
(d) Customer expressly agrees that use of the Services is at Customer’s sole risk. Neither Provider, its directors, officers, shareholders, employees, agents, third party information providers, third party data communication providers or any others warrant that Services will be uninterrupted or error free, nor do they make any warranty as to the results that may be achieved from the use of such Services or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through such service;
(e) the Internet is an inherently insecure medium. Provider makes no guarantees on the security of its network provider or the data stored within the network;
(f) PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT FOR A PARTICULAR USE. PROVIDER TAKES NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY CUSTOMER, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, NON-DELIVERIES, MIS-DELIVERIES, SERVICE INTERRUPTIONS OR DAMAGE TO EQUIPMENT CAUSED BY PROVIDER’S OWN NEGLIGENCE OR THE NEGLIGENCE OF ITS AGENTS, SERVANTS, EMPLOYEES OR THIRD PARTIES. THE USE OF ANY INFORMATION OBTAINED VIA PROVIDER IS AT SUBSCRIBERS OWN RISK. PROVIDER SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED BY OR DISTRIBUTED THROUGH ITS SERVICES OR CUSTOMER ERRORS OVER WHICH PROVIDER HAS NO CONTROL.
(g) UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL PROVIDER, ITS DIRECTORS, OFFICERS, AGENTS OR ANYONE ELSE ASSOCIATED WITH THE DESIGNING, IMPLEMENTING, PRODUCING OR DISTRIBUTING PROVIDER’S INFORMATION SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, CONSTRUCTION OR UNAUTHORIZED ACCESS TO PROVIDER’S RECORDS, SOFTWARE OR SERVICES. SUBSCRIBER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT ON PROVIDER’S INFORMATION SERVICES. NOTWITHSTANDING THE FOREGOING, SUBSCRIBER’S EXCLUSIVE REMEDIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTIONS, WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF (i) THE AGGREGATE DOLLAR AMOUNT WHICH SUBSCRIBER PAID DURING THE TERM OF THIS AGREEMENT AND (ii) $500.00.
7. Indemnity. Customer will indemnify and hold Provider, its agents, customers, directors, officers, employees and shareholders harmless from and against all claims, damages, liabilities, losses, costs (including costs of defense), claims and judgements from any source or for any reason relating directly or indirectly to the Web Site.
8. Miscellaneous.
(a) The terms and conditions of this Agreement, including the Services and fees to be paid by Customer for the Services, can be modified at any time by Provider as long as 30 days’ written or electronic mail notice is provided to Customer.
(b) The Customer may not sell, transfer, or assign this Agreement to another party without the express written consent of Provider.
(c) This Agreement may be terminated by either party at any time by providing the other with 30 days’ advance written or electronic mail notice. In the event this Agreement is terminated by Customer before the Initial Term or any renewal term has expired or pursuant to Subsections 6(b) or 6(c) above, a $100 termination fee will be assessed. The Customer is responsible to remit a final payment for all Services rendered.
(d) This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.
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