Terms Of Service
This Web Hosting Agreement (this
"Agreement") is between Code Blue Hosting, a Corporation formed under
the laws of Industry Canada with its principal office at 162 Guelph Street, Suite 223,
Georgetown ON, L7G 5X7. ("Code Blue Hosting") and the person
(individual or legal person) whose signs Code Blue Hosting's service order and
set up form (the "Order") incorporating this Agreement by reference
("Customer"). This Agreement governs Customer's use of Code Blue
Hosting's Web hosting service.
Subject to the terms of this Agreement, and
contingent on Customer's satisfaction of Code Blue Hosting's credit approval
requirements, Code Blue Hosting 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 Code Blue Hosting 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"). Upon expiration of the Initial Term,
this Agreement shall automatically renew for up to three successive renewal
terms of the same length as the Initial Term (each a "Renewal Term")
unless Code Blue Hosting 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." Customers paying on a Monthly period may cancel at any time,
provided written notice is submitted to Code Blue Hosting 10 days before the
(a) Fees. 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. Code Blue Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Code Blue Hosting to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise Code Blue Hosting 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 7th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in Canadian dollars(CAD). Due to the nature of the business, Code Blue Hosting does not offer any refunds on; Dedicated Servers, Cloud Services, SSL Certificates or Domain Names. Shared Hosting(Web Hosting) accounts do carry a 15 day money back guarantee. An account is not eligible for a refund if it was suspended or terminated for a violation of Code Blue Hosting's Terms Of Service or any other standing company policy(s). Customer is responsible for providing Code Blue Hosting with changes to billing information (such as credit card expiration, change in billing address) at its option, Code Blue Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Code Blue Hosting may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Code Blue Hosting reserves the right to add a $15 late payment fee to all accounts left unpaid by the due date. Code Blue Hosting will suspend the service with notice if payment for the service is overdue past seven (7) days. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Code Blue Hosting's reasonable reinstatement fee following a suspension of service for non-payment, and to pay Code Blue Hosting's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees, courier charges and court costs. Customers who initiate a Chargeback or PayPal billing dispute, Whom do not formally notify us via Postal Mail of such action at least 40 days prior to the Chargeback or dispute being placed, will be subject to a $250 processing fee.
(b) Fee Increases. Code Blue Hosting 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 Code Blue Hosting's request Customer shall remit to Code Blue Hosting all sales, GST/HST or similar tax imposed on the provision of the services (but not in the nature of an income tax on Code Blue Hosting), regardless of whether Code Blue Hosting fails to collect the tax at the time the related services are provided.
(d) Early Termination. Customer acknowledges that Code Blue Hosting may terminate this Agreement at any time if Customer violates this Agreement or the Acceptable Use Policy posted at http://www.Code Blue Hosting.com (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 Code Blue Hosting 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 Code Blue Hosting'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. Should the customer wish to cancel early, notice must be sent to the company 10 days before the next due date.
(3) Collection Agency. Code Blue Hosting reserves the right to list all accounts that have one or more unpaid invoice with a third party debt collector of its choice. International accounts will be charged a $25 fee if sent to collections. Domestic accounts will be charged a fee of $10 if referred to collections. In addition, a late fee will be applied as Article 3 Section (A) states.
Customer agrees to use the service in compliance with applicable law and the AUP. Customer agrees that Code Blue Hosting 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 Code Blue Hosting'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 Code Blue Hosting's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Code Blue Hosting and Customer regarding the interpretation of the AUP, Code Blue Hosting's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to Code Blue Hosting that the information he, she or it has provided and will provide to Code Blue Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Code Blue Hosting that he or she is at least 18 years of age. Code Blue Hosting 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 Contract.
Customer agrees to defend, indemnify and hold harmless Code Blue Hosting, 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 attorney's fees) brought by a third party under any theory of legal liability arising out of or related to 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.
7. Disclaimer of Warranties.
Code Blue Hosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Code Blue Hosting 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.
8. 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 Code Blue Hosting 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 Code Blue Hosting 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
Code Blue Hosting may suspend or terminate services to Customer without notice
and without liability if: (i) Code Blue Hosting 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) Code Blue Hosting 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 Code
Blue Hosting'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 Code Blue Hosting 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 Code Blue Hosting 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 Code Blue Hosting 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.
10. Requests for Customer Information
Customer agrees that Code Blue Hosting 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 Code Blue Hosting 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.
11. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by Code Blue Hosting notwithstanding any agreement by Code Blue Hosting to provide backup services. Code Blue Hosting however cannot guarantee integrity of backups, and will not take any responsibility for lost data and/or files resulting from backup system failure.
12. Changes to Code Blue Hosting's Network
Upgrades and other changes in Code Blue Hosting'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. Code Blue Hosting reserves the right to change its network in its commercially reasonable discretion, and Code Blue Hosting shall not be liable for any resulting harm to Customer.
Notices to Code Blue Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.Code Blue Hosting.com 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.
14. Force Majeure
Code Blue Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Code Blue Hosting'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.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of
the Province of Ontario, Canada, exclusive of its choice of law principles, and
the laws of Canada, as applicable. The Agreement shall not be governed by the
United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE
FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE
PROVINCIAL AND FEDERAL COURTS IN ONTARIO, CANADA, AND EACH PARTY AGREES NOT TO
DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. CIRA .CA Registration Requirements
By registering a .CA domain name with Code Blue Hosting, you agree to adhere to the following agreements/polcies set out by the Canadian Internet Registration Authority
You have read, understood and agree to the terms and conditions of the Registrant Agreement, and that CIRA may, from time to time and at its discretion, amend any or all of the terms and conditions of the Registrant Agreement, as CIRA deems appropriate, by posting a notice of the changes on the CIRA website and by sending a notice of any material changes to Registrants.
You meet all the requirements of the Registrant Agreement to be a Registrant, to apply for the registration of a Domain Name Registration, and to hold and maintain a Domain Name Registration, including without limitation CIRA’s Canadian Presence Requirements for Registrants, at: cira.ca/sites/default/files/attachment/policies/cprregistrants-en.pdf.
The CIRA will collect, use and disclose your personal information,
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 Code Blue
Hosting 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 Code Blue Hosting's prior written consent. Code Blue Hosting's
approval for assignment is contingent on the assignee meeting Code Blue Hosting's
credit approval criteria. Code Blue Hosting 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 supersedes and replace any prior understanding or communication, written or oral.