WEBSITE HOSTING AGREEMENT, TERMS AND CONDITIONS

Last revision: January 1, 2012

1 – Parties

This agreement is between Electric Silk Website Hosting (electricsilk.com) (PROVIDER) and the party with the hosting or cPanel account (CLIENT). Hosting services may also be provided by a company associated with Electric Silk Website Hosting.

2 – Services

PROVIDER shall:

render memory and computing capacity available, on a server operated by PROVIDER or an agent of PROVIDER, for the storage of websites and for the operation of applications that can be utilised via the internet.
create, grant and maintain the connection between the server and the internet so that the data stored on the server can be transmitted to the calling computer without disruption and whenever required by external computers in the internet (clients) by means of the common internet protocols.
endeavour to render the data, stored by the contract partner in accordance with the Terms and Conditions of the agreement, available to the global public via the internet 24 hours a day, seven days a week. PROVIDER does not accept liability for successful access to the respective website, insofar as networks are used that are not exclusively operated by PROVIDER or its direct contractors including their interfaces to third-party networks.
schedule maintenance times for the optimisation and improvement of performance of the systems providing the services, which are, on principle, outside the usual business hours, and are only utilised as required. During these maintenance times PROVIDER may shut down its technical facilities as necessary and to a scope that is restricted to a minimum. CLIENT shall be informed of the execution of maintenance outside the above-mentioned maintenance times by email in a timely manner.
endeavour to render the systems available via internet for at least 98.5% of the annual operating time (availability).
execute an automatic back-up of the stored data on a daily basis. The back-up copies shall in general be stored for a period of 3 days.
respond to email inquiries in a timely manner during normal business hours.

PROVIDER shall not:

provide phone support. Rest assured that server status is monitored 24/7 and PROVIDER receives instant notification and reacts immediately to any server issues or outages.
provide support for remote hosted email services, including but not limited to gMail, MS Office, Office 365, Telus, or any other 3rd party email service. Remote hosted email service is 100% CLIENT responsibility. Disruptions in remote hosted email is NOT an indication of any server issues with PROVIDER and, as such, PROVIDER will NOT respond to calls or emails regarding remote hosted email failures outside of normal business hours.
provide consultation services. Consultation services for website and/or email issues are available through Electric Silk Website Programming at their normal and/or overtime/holiday rates, depending on when the call is made. Note that post-production consultation services for any issues are billable at normal and/or overtime/holiday rates, depending on when the call is made. Consultation services are subject to a 30-minute minumum billing PER interaction.
allow non-technical clients to dictate the course of action for any support issue. All decisions for technical issues rest solely with PROVIDER.

3 – Service Interruptions

PROVIDER may need to interrupt your access to the Website to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access to the server (cPanel) or your website may be affected by unanticipated or unscheduled downtime, for any reason, and that PROVIDER will have no liability for any damage or loss caused as a result of such downtime.

4 – Usage policy

We reserve the right to suspend or cancel a customer’s access to any or all services we provided when we decide that the account has been inappropriately used. In short we do not allow certain activities hosted on our servers:

No adult content (No Pornography)
No online gambling
No Spam, No unsolicited emailing
No Warez, cracks, copyright infringement

5 – Server abuse

Any attempt to undermine or cause harm to a server or customer of ours is strictly prohibited.

6 – Unauthorized use of other people’s accounts or computers

We will strongly react to any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include “internet scamming” (tricking other people into releasing their passwords), password robbery, security hole scanning etc.

Any unauthorized use of accounts or computers by a customer, whether or not the attacked account or computer belongs to us, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack.

7 – Abuse of Unlimited Traffic and/or Unlimited Storage

If one of our hosting plans offers unlimited traffic and/or unlimited storage for the client web sites, the intention is to provide a large space to serve web documents, not an offsite storage area for electronic files. All of your web pages (html) must be ‘linked’ with files (.GIF, .JPEG, etc.) stored on our server. Web sites that are found to contain either/or no html documents, a large number of unlinked files are subject to warning, suspension or cancellation at the discretion of our management. To maintain the integrity of our service the following limitations apply to such hosting plans:

Sites with Banners, graphics or cgi scripts running from their domain used on other domain
Sites with picture galleries (This is any site where 50% of the files transferred is graphics)
Sites offering download files or archives. (This is any site where more than 50% of the monthly traffic is from file downloads)

If you do not qualify for the unlimited service, traffic will go unmonitored until you reach 2GB per month. Thereafter, extra data transfer cost of $5/1GB/month will be billed to your account.

We will be the sole arbiter as to what constitutes a violation of this provision.

8 – Commercial advertisements with email

Unsolicited commercial advertisements are not allowed in email, and will likely result in account suspension or cancellation.

Commercial advertisements are unwelcome in most Usenet discussion groups and on most email mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list’s charter for whether advertising is allowed or not. “Spamming,” or sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such.

Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. email is a person-to-person medium, not a broadcast medium.

9 – Background Running Programs

In addition to these CLIENT agrees not to run any kind of ‘server applications’. Every program/script that opens a port on the shared hosting server is considered a ‘server application’. These include but are not limited to IRC servers, IRC proxies, IRC bots. CLIENT understands that the services are subject to immediate termination without compensation for non-compliance with the policies. Further, CLIENT will be responsible for the full amount of any tangible and intangible damages this may cause. PROVIDER reserves the right to change the policies from time to time to reflect the dynamic nature of the Internet. Both policies are available on-line any time or as a hard copy by request only.

10 – Charges and Consultation Fees

PROVIDER agrees to maintain the host server

11 – Payment Policies

All accounts are set up on a pre-pay basis. Setup fees may be charged for all new accounts and major account changes. All pricing is guaranteed for the term of pre-payment. PROVIDER reserves the right to change prices at any time. Any account not brought current within a week (7 days) of e-mail notice or exceeding this time frame in any way is subject to suspension. CLIENT is responsible for all money owed on the account from the time it was established to the time that CLIENT notifies us in writing for a request for termination of services. Credit card information is stored on file and will be auto-billed on the due date of the account. Email notification will be sent to you prior to your hosting renewal date.

12 – Cancellation

We reserve the right to cancel service at any time. All fees paid in advance of cancellation will be pro-rated and paid by us if we institute our right of cancellation. Any violation of policies which results in extra costs will be billed to CLIENT (i.e. support/consultation time, transfer, space etc.).

All of our web hosting plans are backed by a 30 day money back guarantee. If you are not completely satisfied with our services or support within the first 30 days of your contract, you will be given a full refund of the contract amount including setup fees but excluding overages. Domain Registration fees are not refundable at all. No refund is available after the 30th day. There are no refunds for any additional services such as overages, additional disk space, additional pop accounts, etc. Due to security concerns, all account cancellations must be done by email from the registered email address of the account holder. Phone requests will not constitute acceptance of any cancellation.

13 – Lawful Purpose

We reserve the right to refuse service to anyone. Customers may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, provincial or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, and material protected by trade secrets. We expressly forbid anyone from using servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable, including, but not limited to, pornography, satanic materials, and any and all materials of an adult nature. The designation of any materials as such described above is left entirely to the discretion of our management.

14 – Governing Law.

This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable in that Province and will be treated, in all respects, as an British Columbia contract.

15 – LIMITATION OF LIABILITY

YOU AGREE THAT NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER WILL BE LIABLE FOR ANY (A) SUSPENSION OR LOSS OF THE SERVICES, EXCEPT TO THE LIMITED EXTENT THAT A REMEDY IS PROVIDED UNDER THIS AGREEMENT; (B) INTERRUPTION OF BUSINESS; (C) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEB SITE(S) PROVIDED THROUGH OR BY THE SERVICES; (D) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (E) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (F) EVENTS BEYOND THE CONTROL OF THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER; (G) THE PROCESSING OF YOUR APPLICATION FOR THE SERVICES; OR (H) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. YOU FURTHER AGREE THAT NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER OR NOT EITHER THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER THE PRIMARY SERVICE PROVIDER OR THE BACKEND SERVICE PROVIDER EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES FOR A ONE-MONTH PERIOD, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, THE LIABILITY OF THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

16 – INDEMNIFICATION

YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD THE PRIMARY SERVICE PROVIDER AND BACKEND SERVICE PROVIDER, THEIR CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY’S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO YOUR USE OF THE SERVICES OR ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, INFRINGEMENT BY YOU OR SOMEONE ELSE USING YOUR COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY PERSON OR ENTITY, OR FROM THE VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT. WHEN EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY BE INVOLVED IN A SUIT INVOLVING A THIRD PARTY AND WHICH IS RELATED TO THE SERVICES UNDER THIS AGREEMENT, EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE TO INDEMNIFY AND HOLD SUCH PARTIES HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE BONDS OR OTHER GUARANTEES. YOUR FAILURE TO PROVIDE SUCH ASSURANCES MAY BE CONSIDERED A BREACH OF THIS AGREEMENT BY YOU.

You agree that the Backend Service Provider shall not be liable for the actions, inactions, negligence, or intentional misconduct of the Primary Service Provider. You acknowledge and agree that neither the Primary Service Provider nor the Backend Service Provider are agents for one another.Customer agrees that it shall defend, indemnify, save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against us, our agents, our customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. Customer agrees to defend, indemnify and hold us harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with our servers; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customer from our servers.

17 – DISCLAIMER OF WARRANTIES

NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER MAKE ANY REPRESENTATIONS NOR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EITHER THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.