This Web Hosting Agreement (herein referred to as “Agreement”) is between AreYouServed.com Internet Services, a Proprietorship formed under the laws of the Province of British Columbia, Canada, with its principle office in Aldergrove, British Columbia, and the person (individual or legal person) whose entry and submission of their order (herein referred to as “Order”)  has been submitted through their registered account with AreYouServed.com’s online billing system (herein referred to as “Billing System”, and available at http://billing.areyouserved.com) incorporating this Agreement by reference (herein referred to as “Customer”).  This Agreement governs Customer’s use of AreYouServed.com’s Web Hosting Service.

Table of Contents

  1. SERVICES.  Subject to the terms of this agreement, and contingent on Customer’s satisfaction of AreYouServed.com’s credit approval requirements, AreYouServed.com agrees to provide webhosting services described in the Order for the fees stated in the Order.
  2. TERM.  The initial service term of the Agreement shall begin on the date AreYouSeved.com generates an email message to the Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue to renew in terms of the same length as the Initial Term (each a “Renewal Term”) unless AreYouServed.com, or Customer, provides the other with proper notice of non-renewal, as is outlined in Section 2.1 (Cancellations).  The initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term”.
    1. CANCELLATIONS.  All cancellation notices, whether by AreYouServed.com or the Customer, must be submitted by means of Support Ticket through the Billing System (URL link above).
  3. PAYMENTS.
    1. Fees are payable in advance on the first day of each billing cycle.  Customers billing cycle shall be monthly, quarterly, semi-annually, or annually as indicated on the Order, beginning on the Service Commencement Date.  AreYouServed.com may require payment first before beginning service.  If the Order provides for credit card billing, Customer authorizes AreYouServed.com to bill subsequent fees to credit card on or after the first day of each successive billing cycle during the Terms of this Agreement; otherwise AreYouServed.com will invoice Customer via electronic mail sent to the Primary Customer Contact listed on the Order.  Invoiced fees will be issued 10 days prior to the following Term, and the fees shall be due on the 10th day following the invoice date, but not earlier than the first day of each billing cycle.  AreYouServed.com has the right to provide  or require special payment terms to chosen customers, based on past account history.
    2. Payments must be made in United Stated Dollars.  Customer is responsible for providing AreYouServed.com with changes to the billing information that is provided at the time of the initial order (such as credit card expiration, changes in billing address, changes in contact information, etc).  At its option, AreYouServed.com may accrue charges to be made to a credit card until such charges exceed $10.00.  AreYouSeved.com may charge a late fee of $10 on all overdue invoices, for each month it is overdue.  AreYouServed.com may suspend service without notice if payment for the service is overdue.  Fees not disputed within forty-five (45) days of due date are conclusively deemed accurate.  All fee disputes must be submitted by means of support ticket through the Customer’s Billing System account.  Customer agrees to pay AreYouServed.com’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay AreYouServed.com’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees, and court costs.
    3. Fee Increases.  AreYouServed.com 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 upcoming Renewal Term, and if the customer does not give a notice of non-renewal (cancellation) 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).
    4. Taxes.  All resident of Canada will be charged GST, as is required by the Canadian tax laws.  At AreYouServed.com’s request Customer shall remit to AreYouServed.com all sales, VAT, or similar tax imposed on the provision of the services (but not in the nature of an income tax on AreYouServed.com), regardless of whether AreYouServed.com fails to collect the tax at the time the related service(s) is(are) provided.
    5. Early Termination.  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 AreYouServed.com 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 AreYouServed.com’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.
    6. All payments are submitted with the knowledge that AreYouServed.com provides no refund policy, or guarantee, however it is within the rights of AreYouServed.com to provide the Customer with what is believes to be an appropriately reasonable refund given each individual incident which might come under the scope of this section.
  4. Law/AUP.  Customer agrees to use the service(s) provided in accordance with applicable law and AreYouServed.com’s Acceptable Use Policy available at http://www.areyouserved.com/aup.php (herein referred to as the “AUP”), which is hereby incorporated by reference in this Agreement.  Customer agrees that AreYouServed.com may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe the reasonable restrictions and conditions on the Customer’s use of the Services.  Amendments to the AUP are effective on the earlier of AreYouServed.com’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 AreYouServed.com’s reasonable investigation of any suspected violations of the AUP.  In the event of a dispute between AreYouServed.com and Customer regarding the interpretation of the AUP, AreYouServed.com’s commercially reasonable interpretation of the AUP shall govern.
  5. Customer Information.  Customer represents and warrants to AreYouServed.com that the information he, she or it has provided and will provide to AreYouServed.com for purposes of establishing and maintaining the service is accurate.  If Customer is an individual, Customer represents and warrants to AreYouServed.com that he or she is at least 18 years of age.  AreYouServed.com 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 proper notice of a change in the Primary Customer Contract.  Proper notice is required to be in the form of a support ticket, submitted through AreYouServed.com’s Billing System.
  6. Indemnification.  Customer agrees to indemnify and hold harmless AreYouServed.com, AreYouServed.com affiliates, and each of their respective owners, officers, directors, agents, and employees from and against any claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts of interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorney 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 the Customer.
  7. Disclaimer of Warranties.  While AreYouServed.com does everything in their ability to maintain a high level of uptime and security of both network and services, AreYouServed.com does not warrant or represent that the services will be uninterrupted, error-free, or completely secure.   To the extent permitted by applicable law AreYouServed.com disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.  To the extent permitted by applicable law, all services are provided on an “as is” basis.
  8. Limitation of Damages.
    1. 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 possibility of such damages.
    2. Notwithstanding anything else in this agreement to the contrary, the maximum aggregate liability of AreYouServed.com and any of its owners, officers, directors, agents or employees, 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 the customer for three (3) months of service.
  9. Suspension/Termination.
    1. Suspension of Service.  Customer agrees that AreYouServed.com may suspend services to Customer without notice and without liability if:
      1. AreYouServed.com reasonably believes that the services are being used in violation of the AUP;
      2. Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP;
      3. AreYouServed.com reasonably believes that the suspension of service is necessary to protect its network or its other customers,
      4. As requested by a law enforcement or regulatory agency.   Customer shall pay AreYouServed.com’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
    2. Termination.
      1. 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 AreYouServed.com 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 the Customer’s written notice describing the failure in reasonable detail.  The Agreement may be terminated by AreYouServed.com prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
        1. Upon ten (10) days notice if Customer is overdue on the payment of any amount due under the agreement;
        2. Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within ten (10)) days of written notice by means of support ticket from AreYouServed.com describing the violation in reasonable detail;
        3. upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or
        4. upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement.
      2. 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 AreYouServed.com may, without notice to Customer,
    1. Report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that AreYouServed.com believes violates applicable law, and
    2. 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 AreYouServed.com notwithstanding any agreement by AreYouServed.com to provide backup services.
  12. Changes to AreYouServed.com’s Network.  Upgrades and other changes in AreYouServed.com’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.  AreYouServed.com reserves the right to changes its network in its commercially reasonable discretion, and AreYouServed.com shall not be liable for any resulting harm to Customer
  13. Notices.  Notices to AreYouServed.com under the Agreement shall be given in the form of support ticket submittal through the Customers Billing System account, located at http://billing.areyouserved.com.  Notices to the Customer shall be made in the same manner, which will in turn send out an electronic mail message to the Customer, which will convey contents of the support ticket.  Notices are deemed received on the day they are 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.  AreYouServed.com shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond AreYouServed.com’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 magnitude or type of 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 British Columbia, 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 Province of British Columbia, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
  16. 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 properly.  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 an agent of the other.  Each party acknowledges it has not power or authority to bind the other on any agreement and that it will not represent any person that it has such power or authority.  This Agreement may be amended at any time, with proper notice as outlines above by AreYouServed.com.  A party’s failure or delay in enforcing any provision of the Agreement will no 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 not 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 AreYouServed.com’s prior written consent.  AreYouServed.com’s approval for assignment is contingent on the assignee meeting AreYouServed.com’s credit approval criteria.  AreYouServed.com 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 replaces any prior understanding or communication, written or oral.