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Chowtron Website Hosting Terms and Conditions of Service Agreement (WHTOS)This agreement applies to account holders of any of CHOWTRON’s hosting plans. The purpose of these Website Hosting Terms and Conditions Of Service Agreement (WHTOS) is to provide a legal framework under which CHOWTRON (herein referred to as “CHOWTRON”, “us”, “our”, “we”) and our account holders, (herein referred to as “Account Holder ”, “you”, “your”, “client”) can conduct business. CHOWTRON and Account Holder may be referred to Individually as a "Party" and collectively as the "Parties". The WHTOS also serves to ensure that your customers are using CHOWTRON services in a way that does not infringe on the rights of other customers and Internet users-at-large, and that no hosting customer uses CHOWTRON’s services in a way that is detrimental to CHOWTRON or it’s other customers. You agree to be bound by these Website Hosting Terms and Conditions Of Service. CHOWTRON reserves the right to add to, modify, or delete any provision of these Terms and Conditions Of Service at any time and without notice. The amended Terms and Conditions of Service will take effect upon its posting on CHOWTRON’s Web site (http://www.chowtron.ca/hosting.html). These Terms and Conditions Of Service supersede all previous Website Hosting Terms and Conditions Of Service whether written, oral, by conduct, or otherwise. Age of Account Holder You agree that you are 18 years of age or older. We cannot provide services to those under the age of 18 without the express written permission of that person’s parent or legal guardian. This permission must be sent to us by postal mail and must include proof that the person providing the permission is, indeed, the minor’s parent or legal guardian. You agree to the terms and conditions of all our Policies, which are documented on this web page. WHEREAS, CHOWTRON has created a hosting program for its Domain and Web Hosting and related services (collectively and individually referred to as the "Services"), and THEREFORE, CHOWTRON and the Account Holder, intending to be legally bound, hereby agree as follows: 1 DEFINITIONS (a) "Confidential Information" means all information disclosed by a party including technical information, software, financial data, and business and marketing plans. Confidential Information shall not include information which (i) is publicly available at the time of its disclosure or becomes publicly available though no fault of the receiving party; (ii) is lawfully obtained by the receiving party from a third party without restriction; or (iii) is known by the receiving party prior to the date of disclosure as demonstrated by the receiving party's records kept in the ordinary course of business. (b) "Customer" means an organization or individual for whom the Account Holder is procuring the Services. (c) "Services" means the Web Hosting and related services that CHOWTRON provides for Account Holders. The specific makeup of the services may change over time as CHOWTRON reserves the right to discontinue, add, modify or otherwise any Service at any time. 2 OBLIGATIONS OF THE PARTIES 2.1 Throughout the Term of this Agreement, CHOWTRON shall operate Services and provide you with access to Services. 2.1.1 Subcontractors and Agents of Chowtron
2.3.1 CHOWTRON will NOT, under any other circumstances, contact or otherwise market to your customers knowingly without your express written permission. Specifically, Account Holders shall not: (i) upload, post, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or harms minors in any way; In regards to Proxies: Anonymous proxies, cookie hiding proxies, email proxies, and any other form of proxy is not allowed on any server. Any proxy found running on any account will be immediately disabled, and the user notified. If attempts to continue running proxies are made, the account may be suspended without further notice given. Proxies are deemed to be server abuse. They consume many cpu cycles, bandwidth, and use high amounts of memory. This includes all forms of proxies that may be run, from cgi, perl, php, python, asp, and asp.net, or any other scripting language, along with any form of XML based proxies. 2.5 You agree to notify CHOWTRON promptly of the existence of any improper use of the Services of which you become aware. CHOWTRON shall have the right, in its sole discretion, to delete any or all of a Customer's site if it believes that Customer is making improper use of Service. CHOWTRON shall provide you with prompt notice of any such deletion. 2.6 You agree that in the event of significant degradation of Services, or at any time deemed necessary by CHOWTRON , CHOWTRON may, in its sole discretion, temporarily suspend access to Services. 2.7 You shall comply with all policies of CHOWTRON that may be established from time to time regarding the use of Services. 2.8 Account Transfer. You agree that you may not transfer your Web hosting account to another individual or other legal entity without first notifying CHOWTRON of cancellation of services. 2.9 Service and Availability 2.9.1. CHOWTRON will provide you with Web hosting services on a shared-server network. This type of Web hosting is often called “shared Web hosting” because more than one customer may be hosted on a server and thus share server resources. 2.9.2. On average, CHOWTRON sustains a 99.9 percent level of availability for all Web hosting and email services; we do not, however, guarantee this level of availability. The applicable Web hosting and email services are limited to: HTTP/HTTPS – protocols used for viewing Web pages 2.9.3. CHOWTRON will, from time to time, schedule maintenance on its equipment and software. During these times, one or more of the above services may become unavailable. In general, we have very few maintenance outages and, historically, we have only rarely used more then six hours. 2.9.4. Planned maintenance outages are scheduled for times that will affect the fewest number of customers. We recognize, and you should recognize, that we cannot pick a time that will affect no customers. We have a weekly scheduled maintenance on Saturday early morning between 12AM-5AM EDT which we do not announce to Account Holders. 2.9.5. Scheduled outages for maintenance are not included in CHOWTRON’s availability statistics unless they exceed six (6) hours per month. Occasionally, it may become necessary to perform emergency updates to our systems as might be the case to meet an emerging security threat. Notice may not be given for such circumstances as these are necessary for the security of all our customers. 3 Web Site Maintenance 3.1 Chowtron does not offer FTP accounts with hosting packages. Chowtron only hosts web sites that we maintain. Please call or e-mail us for pricing. 3.2 CHOWTRON may from time to time make modifications to the servers that will enhance functionality or otherwise improve Services. 4 SUPPORT SERVICES We will strive to resolve all support requests made by you to us within 48 hours of the time you filed your support request. This assumes that you followed the accepted method(s) for requesting support. These are documented on this web page. We do not guarantee, however, that every support request will be resolved within this time span. Our support desk operates Monday to Friday, between the hours of 7:00pm and 01:00am, Eastern Time. Email support operates 7 days per week, between the hours of 07:00pm and 01:00am, Eastern time. We reserve the right, however, to change these hours of operation without notice. 6 INVOICING & BILLING 6.1 CHOWTRON will e-invoice you at the billing term chosen by the customer on, or after the renewal date. 6.2 Account Holder agrees to pay within 30 days of invoice date or 2% of the invoice total will be added monthly. 6.3 CANCELLATION of a host plan by the Account Holder must be given with thirty days notice to Chowtron by Phone or E-Mail. 7 CONFIDENTIALITY 7.1 Use of Confidential Information. The Parties' use and disclosure of Confidential Information disclosed hereunder are subject to the following terms and conditions: (a) With respect to the Confidential Information, you agree that: (i) You shall treat as strictly confidential, and use all reasonable efforts to preserve the secrecy and confidentiality of, all Confidential Information received from CHOWTRON , including implementing reasonable physical security measures and operating procedures; and (ii) You shall make no disclosures whatsoever of any Confidential Information to others, provided however, that if you are a corporation, partnership, or similar entity, disclosure is permitted to your officers and employees who have a demonstrable need to know such Confidential Information, provided you shall advise such personnel of the confidential nature of the Confidential Information and of the procedures required to maintain the confidentiality thereof. (b) The obligations set forth in this Section shall be continuing, provided, however, that this Section imposes no obligation upon you with respect to information that: (i) is disclosed with CHOWTRON 's prior written approval; or (ii) is or has entered the public domain in its integrated and aggregated form through no fault of the receiving party; or (iii) is known by the receiving party prior to the time of disclosure in its integrated and aggregated form; or (iv) is independently developed by the receiving party without use of the Confidential Information; or (v) is made generally available by CHOWTRON without restriction on disclosure. (c) In the event of any termination of this Agreement, all Confidential Information in your possession shall be immediately returned to CHOWTRON ; you shall provide full voluntary disclosure to CHOWTRON of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this Section shall survive such termination and remain in full force and effect. (d) You agree that CHOWTRON shall be entitled to seek all available legal and equitable remedies for the breach by you of this Section. 8 TERM OF AGREEMENT 8.1 The term of this Agreement shall be equal to the billing term that you selected upon signup of the Host Plan on the effective signup date and will automatically renew for successive billing terms as chosen by you (each a "Renewal Term" and cumulatively the "Term"); The Term shall continue until the earlier of the following: (i) the Agreement is terminated as provided herein, (ii) You elect not to renew at the end of the Initial Term or any Renewal Term and the customer uses the prescribed cancellation procedure (iii) CHOWTRON ceases to offer the Services 8.2 Termination for Cause. In the event that either Party (or, in the case of you, or an agent of you) materially breaches any term of this Agreement, including any of its representations, warranties, covenants and agreements hereunder, and such breach is not cured within ten (10) calendar days after written notice thereof is given by the other Party, then the non-breaching Party may, by giving written notice thereof to the other Party, terminate this Agreement as of the date specified in such notice of termination. Further, in addition to the foregoing rights of termination, in the event that CHOWTRON , in its reasonable discretion, determines that you have breached any provision of this Agreement, is in violation of any CHOWTRON ' policy or regulation as amended from time to time, CHOWTRON shall have the right to suspend your access to Services pending the cure of such breach to the reasonable satisfaction of CHOWTRON . Failure of you to remedy its practices to the satisfaction of CHOWTRON within a reasonable period shall entitle CHOWTRON to immediate termination of this Agreement. 8.3 Early Termination. Either party may terminate this Agreement at any time by giving the other party thirty (30) days written notice of termination. 8.4 Bankruptcy, Non Service and Abandonment. (a) In the event that CHOWTRON has not been paid for services for a period of 2 months, or has reason to believe that you have filed for bankruptcy, or have otherwise ceased operations, CHOWTRON will suspend your account. CHOWTRON will then send you a registered letter requiring confirmation of your status. If you fail to contact CHOWTRON within 30 calendar days following issuance of the letter, we will deem your customers as having been abandoned and without service and we will cancel your account. (b) Either Party may terminate this Agreement with immediate effect if the other Party is adjudged insolvent or bankrupt, or if proceedings are instituted by or against a Party seeking relief, reorganization or arrangement under any laws relating to insolvency, or seeking any assignment for the benefit of creditors, or seeking the appointment of a receiver, liquidator or trustee of a Party's property or assets or the liquidation, dissolution or winding up of a Party's business. 9 INDEMNIFICATION 9.1 You, at your own expense, will indemnify, defend and hold harmless CHOWTRON and its subcontractors, employees, directors, officers, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against CHOWTRON based on or arising from any claim or alleged claim (i) relating to any product or service of account holder; (ii) relating to any agreement with any Customer of account holder; or (iii) relating to your domain name registration, including, but not limited to, your advertising, domain name application process, systems and other processes, fees charged, billing practices and customer service; provided, however, that in any such case: (a) CHOWTRON provides You with prompt notice of any such claim, and (b) upon your written request, CHOWTRON will provide to you all available information and assistance reasonably necessary for you to defend such claim, provided that you reimburse CHOWTRON for its actual and reasonable costs. You will not enter into any settlement or compromise of any such indemnifiable claim without CHOWTRON's prior written consent, which consent shall not be unreasonably withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by CHOWTRON in connection with or arising from any such indemnifiable claim, suit, action or proceeding. 10 REPRESENTATIONS AND WARRANTIES 10.1 Account Holder hereby represents and warrants to CHOWTRON as follows: 10.2 CHOWTRON hereby represents and Warrants to account holder as follows: 11 MISCELLANEOUS 11.1 Any reference in this Agreement to gender shall include all genders, and words importing the singular number only shall include the plural and vice versa. 11.2 Unless otherwise identified, references in this Agreement to dollars are expressed in CAD currency. 11.3 There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein. 11.4 No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing. 11.5 The Parties shall attempt to resolve any disputes between them prior to resorting to litigation. This Terms and Conditions Of Service Agreement shall be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the provincial courts located in Cambridge, Ontario, Canada. 11.6 This Agreement shall inure to the benefit of and be binding upon CHOWTRON and you as well as all respective successors and permitted assigns. 11.7 Survival. In the event of termination of this Agreement for any reason, Sections 2.5, 2.10, 3.2, 5.1, 7, 9.1, 10, 11.4, 11.5, 11.6, 11.15, 11.16, 11.17, and 11.18 shall survive. Neither Party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms. 11.8 This Agreement does not provide and shall not be construed to provide third parties (i.e., non-parties to this Agreement), including any Customer, with any remedy, claim, cause of action or privilege. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or a joint venture, or agency relationship between the Parties. 11.9 Force Majeure. Neither Party shall be responsible for any failure to perform any obligation or provide service hereunder because of any Act of God, strike, work stoppage, governmental acts or directives, war, riot or civil commotion, equipment or facilities shortages which are being experienced by providers of telecommunications services generally, or other similar force beyond such Party's reasonable control. 11.10 Further Assurances. Each Party hereto shall execute and/or cause to be delivered to each other Party hereto such instruments and other documents, and shall take such other actions, as such other Party may reasonably request for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement. 11.11 Amendments. During the period of this Agreement, You agree that CHOWTRON may: (i) revise the terms and conditions of this Agreement; and (ii) change the Services provided under this Agreement by posting notice of same on its website. If you do not agree with any revision to the Agreement, and if those revisions are materially adverse to you, you may terminate this Agreement by providing CHOWTRON with notice by e-mail or regular mail as stated on the prescribed method of cancellation on this page. Notice of termination by you pursuant to this section will be effective on receipt and processing by CHOWTRON. You agree that, by continuing to use and/or sell Services following any revision to this Agreement or change in Service, that you agree to abide by any such revisions or changes. 11.12 Attorneys' Fees. If any legal action or other legal proceeding (including arbitration) relating to the performance under this Agreement or the enforcement of any provision of this Agreement is brought against any Party hereto, the prevailing Party shall be entitled to recover reasonable attorneys' fees, costs and disbursements (in addition to any other relief to which the prevailing Party may be entitled). 11.13 Assignment/Sublicense. Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assigns of the Parties; provided, however, that any such successor or assign be permitted pursuant to the Articles, Bylaws or policies of CHOWTRON. You shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third person without the prior written consent of CHOWTRON. 11.14 Delays or Omissions; Waivers. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. 11.15 Limitation of Liability. IN NO EVENT WILL CHOWTRON BE LIABLE TO ACCOUNT HOLDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CHOWTRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11.16 Construction. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement. 11.17 Intellectual Property. Subject to the provisions of this Agreement, each Party will continue to independently own its intellectual property, including all patents, trademarks, trade names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Any improvements to existing intellectual property will continue to be owned by the Party already holding such intellectual property. 11.19 Entire Agreement; Severability. This Reseller Terms And Conditions Of Service Agreement (WHTOS) constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible. 11.20 The division of this Agreement into sections, subsections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be used in the construction or interpretation of this Agreement. 12. Modification Of This Agreement (WHTOS) You agree to be bound by these Website Hosting Terms and Conditions Of Service (WHTOS). CHOWTRON reserves the right to add to, modify, or delete any provision of Website Hosting Terms and Conditions Of Service (WHTOS) at any time and without notice. The Website Hosting Terms and Conditions Of Service (WHTOS) will take effect upon its posting on CHOWTRON’s Web site (http://www.chowtron.ca/). CHOWTRON suggests that you review this WHTOS once per month. These Website Hosting Terms and Conditions Of Service (WHTOS) supersede all previous Terms and Conditions Of Service whether written, oral, by conduct, or otherwise. 13 Agreement By Use Use of CHOWTRON’s Web hosting system with a host plan constitutes acceptance of the above Website Hosting Terms and Conditions Of Service (WHTOS).
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