This Web Hosting Agreement (this “Agreement”) is between Sphere48, a Web Hosting company formed under the laws of the province of Québec with its principal office located in Montréal and the person (individual or legal person) whose signs Sphere48’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Sphere48’s Web hosting service.
Table of Contents
- Customer Information
- Disclaimer of Warranties
- Limitation of Damages
- Suspension of Services/Termination
- Request for Customer Information
- Back Up Copy
- Changes to Sphere48’s Network
- Force Majeure
- Governing Law/Disputes
- Services. Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Sphere48’s credit approval requirements, Sphere48 agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that Sphere48 generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Any Order issued pursuant to this Agreement shall be incorporated into and become a part of this Agreement. Upon expiration of the Initial Term, this Agreement shall be automatically renewed for successive terms of the same length as the Initial Term (each a “Renewal Term”) unless Sphere48 or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. Sphere48 may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Sphere48 to bill subsequent fees to the credit/debit card or payment method on file on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise Sphere48 will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing Sphere48 with changes to billing information (such as credit card expiration, change in billing address). At its option, Sphere48 may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Sphere48 may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Sphere48 may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Sphere48’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Sphere48’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases. Sphere48 may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty-five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes. At Sphere48’s request Customer shall remit to Sphere48 all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Sphere48), regardless of whether Sphere48 fails to collect the tax at the time the related services are provided.
(d) Early Termination. Customer acknowledges that Sphere48 may terminate this Agreement at any time if Customer violates this Agreement or the Acceptable Use Policy posted at https://www.sphere48.com/hosting/acceptable-use-policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Sphere48 terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Sphere48’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
- Law/AUP. Customer agrees to use the service in compliance with applicable law and the AUP. Customer agrees that Sphere48 may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of Sphere48’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Sphere48’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Sphere48 and Customer regarding the interpretation of the AUP, Sphere48’s commercially reasonable interpretation of the AUP shall govern.
- Customer Information. Customer represents and warrants to Sphere48 that the information Customer has provided and will provide to Sphere48 for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Sphere48 that Customer is at least 18 years of age. Additionally, Customer represents and warrants that if Customer is utilizing the services on behalf of another party, then Customer agrees that you are authorized to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the services.
Sphere48 may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contact. If you need to verify or change your contact information, you may contact Sphere48 to update your contact information. Providing false contact information of any kind may result in the termination of your account. The provision of any such false contact information may be investigated by Sphere48 and may be reported to the proper law enforcement agencies. Failure to provide the information requested may result in your order being denied.
- Your Account. You agree to be fully responsible for all use of your account and for any actions that take place through your account. It is your responsibility to maintain the confidentiality of your password and other information related to the security of your account.
- The service and any data you provide to Sphere48 is hosted in the United States (U.S.) unless otherwise provided. If you access the service from outside of the U.S., you are voluntarily transferring information (potentially including personally-identifiable information) and content to the U.S. and you agreeing that our collection, use, storage and sharing of your information and content is subject to the laws of the U.S., and not necessarily of the jurisdiction in which you are located.
- IP Addresses.
Sphere48, shall maintain control and ownership of the IP address that is assigned to the Customer as part of the Services and reserves the right in its sole discretion to change or remove any and all IP addresses. Where Sphere48 changes or removes any IP address it shall use its reasonable endeavors to avoid any disruption to the Customer.
- Sphere48 Content
All content available through the services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, “Sphere48 Content”), are the proprietary property of Sphere48 or Sphere48’s licensors. Sphere48 Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Sphere48 Content. Any use of Sphere48 Content, other than as specifically authorized herein, is prohibited and will automatically terminate your rights to use the services and any Sphere48 Content. All rights to use Sphere48 Content that are not expressly granted in this Agreement are reserved by Sphere48 and Sphere48’s licensors.
- Customer Content.
You may be able to upload, store, publish, display and distribute information, text, photos, videos and other content on or through the services (collectively, “Customer Content”). Customer Content includes any content posted by you or by users of any of your websites hosted through the Services (“Customer Websites”). You agree that you are solely responsible for any and all Customer Content and any transactions or other activities conducted on or through Customer Websites. By posting or distributing Customer Content on or through the Services, you represent and warrant to Sphere48 that (i) you have all the necessary rights to post or distribute Customer User Content, and (ii) your posting or distribution of such Customer Content does not infringe or violate the rights of any third party.
Solely for purposes of providing the Services, you hereby grant to Sphere48 a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute Customer Content; and (ii) make archival or back-up copies of Customer Content and Customer Websites. Except for the rights expressly granted herein, Sphere48 does not acquire any right, title or interest in or to the Customer Content, all of which shall remain solely with you.
Sphere48 exercises no control over, and accepts no responsibility for, Customer Content or the content of any information passing through Sphere48’s computers, network hubs and points of presence or the Internet. Sphere48 does not monitor Customer Content. However, you acknowledge and agree that Sphere48 may, but is not obligated to, immediately take any corrective action in Sphere48’s sole discretion, including without limitation removal of all or a portion of the User Content or User Websites, and suspend or terminate any and all Services without refund if you violate the terms of this Agreement. You hereby agree that Sphere48 shall have no liability due to any corrective action that Sphere48 may take.
- Service Levels.
Sphere48 shall use its commercially reasonable efforts to make the server and the services available to the Customer 99.9% of the time but because the services are provided by means of computer and telecommunications systems, Sphere48 makes no warranties or representations that the service will be uninterrupted or error-free and Sphere48 shall not, in any event, be liable for interruptions of service or downtime of the server.
- Third Parties.
Sphere48 may make links or offers from certain third parties available to Customer. Sphere48 does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third party provider. You undertake all transactions with these third party providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third party providers. Sphere48 is not an agent, representative, trustee or fiduciary of you or the third party provider in any transaction.
The services may contain links to third party websites and/or other materials that are not owned or controlled by Sphere48. Sphere48 is not responsible for any such materials and Sphere48 does not monitor, check, or warranty the availability, accuracy, or appropriateness of such third party websites. If you decides to access anything from a third party provider, you do so at your own risk and should be aware that Sphere48’s terms and conditions no longer govern. You should review the applicable third party’s terms and policies before proceeding.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS Sphere48, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS AND EXPENSES, DEMANDS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, FINES, PUNITIVE DAMAGES, AMOUNTS IN INTEREST, EXPENSES AND DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER (INCLUDING REASONABLE ATTORNEYS FEES) BROUGHT BY A THIRD PARTY UNDER ANY THEORY OF LEGAL LIABILITY ARISING OUT OF OR RELATED TO CUSTOMER’S BREACH OF THE TERMS OF THIS AGREEMENT OR THE ACTUAL OR ALLEGED USE OF CUSTOMER’S SERVICES IN VIOLATION OF APPLICABLE LAW OR THE AUP BY CUSTOMER OR ANY PERSON USING CUSTOMER’S LOG ON INFORMATION, REGARDLESS OF WHETHER SUCH PERSON HAS BEEN AUTHORIZED TO USE THE SERVICES BY CUSTOMER.
- Disclaimer of Warranties.
Sphere48 DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Sphere48 DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
- Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Sphere48 AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR INTERACTIONS WITH END USERS OF CUSTOMER’S SITE OR SERVICE. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, CUSTOMER HEREBY RELEASES Sphere48 FROM ANY AND ALL CLAIMS OR LIABILITY RELATED TO ANY PRODUCT OR SERVICE OF AN END USER, ANY ACTION OR INACTION BY AND END USER, INCLUDING END USER’S FAILURE TO COMPLY WITH APPLICABLE LAW, AND ANY CONDUCT OR SPEECH, WHETHER ONLINE OR OFFLINE, OF ANY END USER.
(a) Suspension of Service. Customer agrees that Sphere48 may suspend or terminate services to Customer without notice and without liability if: (i) Sphere48 reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Sphere48 reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Sphere48’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Sphere48 fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by Sphere48 prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Sphere48 describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
- Requests for Customer Information. Customer agrees that Sphere48 may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Sphere48 reasonably and in good faith believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
- Back Up Copy. Customer agrees to maintain a current copy of all content hosted by Sphere48 notwithstanding any agreement by Sphere48 to provide back up services.
- Changes to Sphere48’s Network. Upgrades and other changes in Sphere48’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. Sphere48 reserves the right to change its network in its commercially reasonable discretion, and Sphere48 shall not be liable for any resulting harm to Customer.
- Notices. Notices to Sphere48 under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on https://www.sphere48.com/hosting/support. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
- Force Majeure. Sphere48 shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Sphere48’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
- Governing Law/Disputes. The Agreement shall be governed by the laws of the province of Québec, exclusive of its choice of law principles, and the laws of Canada, as applicable.
- Miscellaneous. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on Sphere48 unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Sphere48’s prior written consent. Sphere48’s approval for assignment is contingent on the assignee meeting Sphere48’s credit approval criteria. Sphere48 may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.