This Service Agreement ("Agreement") applies to the purchase from HOSTING NORTH AMERICA of all services (collectively, the "Services") selected by Customer through the online registration tools, as applicable, incorporated by reference and attached hereto, if any, except that if Customer is also ordering co-location and/or web site production services, Customer is also required to sign the agreements specific to those services. HOSTING NORTH AMERICA reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. HOSTING NORTH AMERICA shall use reasonable efforts to notify Customer of any planned changes to HOSTING NORTH AMERICA's network or facilities that may adversely affect the Services provided hereunder. This agreement does not apply to customers that resell HOSTING NORTH AMERICA services. Such resellers must sign the appropriate HOSTING NORTH AMERICA Reseller Agreement, which may be obtained from legal@HostingNorthAmerica.com. 

TERM (Back to the top)

This Agreement shall be for the term specified by Customer on the Order Form or Domain Name Registration Form, as applicable (the "Initial Term"). This Agreement will be automatically renewed, at the end of the Initial Term, unless either party provides thirty (30) days written notice to the other of termination of this Agreement prior to the end of the then current term. The Initial Term and all extensions thereof are collectively referred to herein as the "Term" of this Agreement.

BILLING AND PAYMENT (Back to the top)

Pricing: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth on the Order Form and Domain Name Registration Form, as applicable. Such fees may include taxes, fees or assessments by governmental agencies and HOSTING NORTH AMERICA shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by HOSTING NORTH AMERICA by any governmental agency.

Terms Of Payment: Invoices are due and payable upon receipt. All payments shall be made in Canadian or U.S. currency, where applicable, in advance of the provision of Services. Hosting North America shall have the right to automatically charge the credit card, debit card or checking account of Customer to receive payment for Services.

Service Continuation After Initial Term: The fees set forth in the Order Form or Domain Name Registration Form are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension, the fees charged after the Initial Term shall be at the then standard HOSTING NORTH AMERICA rates for such services, without discount, determined annually.

Service Charge: Customer will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due.

Suspension Or Interruption Of Service For Non-Payment: In the event Customer's account becomes past due, or is otherwise deemed insecure, HOSTING NORTH AMERICA may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Customer may be required to post a deposit or such other security, as Hosting North America deems necessary in order to resume receiving the Services. In addition, if HOSTING NORTH AMERICA in its sole discretion, deems Customer to be financially insecure, HOSTING NORTH AMERICA may require such other action of Customer, including letters of credit, security deposit(s), restrictions on available credit or other action as HOSTING NORTH AMERICA may require from time to time regardless of Customer’s then-current status or payment history. Failure to satisfy HOSTING NORTH AMERICA's request for such action within timelines set by Hosting North America may result in immediate termination of service without further notice.

ACCEPTABLE USES (Back to the top)

Customer shall at all times adhere to the HOSTING NORTH AMERICA Acceptable Use Policy contained herein, as amended from time to time by HOSTING NORTH AMERICA effective upon posting of the revised policy. Notwithstanding anything to the contrary contained herein, HOSTING NORTH AMERICA may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice of possible violation by Customer of the HOSTING NORTH AMERICA Acceptable Use Policy. In the event HOSTING NORTH AMERICA takes corrective action due to a violation of the HOSTING NORTH AMERICA Acceptable Use Policy, HOSTING NORTH AMERICA shall not refund to Customer any fees paid in advance of such corrective action.

CANCELLATION POLICY (Back to the top)

Customer may terminate this Agreement by giving HOSTING NORTH AMERICA at least thirty (30) days prior written notice. However, Customer remains obligated to pay all amounts remaining in the Initial Term, and if HOSTING NORTH AMERICA has purchased equipment on behalf of Customer, including but not limited to circuit and router, Customer shall assume responsibility for payments for such equipment, until paid in full.

In order to terminate early, Customer's primary contact person on the account should notify HOSTING NORTH AMERICA of such request to do so. In the case of credit card orders, all termination requests should be signed by Customer's primary contact person on the account who must provide the last four digits of the credit card on file with HOSTING NORTH AMERICA. However, HOSTING NORTH AMERICA shall not be liable for unauthorized termination of an account.

Any termination by HOSTING NORTH AMERICA or Customer shall not relieve Customer of any obligations to pay fees accrued prior to such termination. In the event that a Customer primary account holder cancels a service, service will be cancelled immediately, and the remainder of any payment that has been received forfeited. HOSTING NORTH AMERICA reserves the right to terminate this Agreement without cause prior to the end of the term upon thirty (30) days written notice to Customer.

IP ADDRESS OWNERSHIP (Back to the top)

HOSTING NORTH AMERICA shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by HOSTING NORTH AMERICA and HOSTING NORTH AMERICA reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

CACHING (Back to the top)

Customer expressly (i) grants to HOSTING NORTH AMERICA a license to cache the entirety of Customer’s Web Site, including content supplied by third parties, hosted by HOSTING NORTH AMERICA under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer intellectual property rights or any third party’s intellectual property rights.

BANDWIDTH AND/OR DISK USAGE (Back to the top)

Customer agrees that bandwidth and/or disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form. HOSTING NORTH AMERICA shall monitor the customer’s usage. If bandwidth or disk usage exceeds the agreed upon number of megabytes per month, HOSTING NORTH AMERICA, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement. In the event that HOSTING NORTH AMERICA elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.

EQUIPMENT (Back to the top)

HOSTING NORTH AMERICA is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the "Equipment") offered under this Agreement that was manufactured by a third party. HOSTING NORTH AMERICA shall not be responsible for any changes in Service(s) that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service(s). Any malfunction or manufacturer’s defects of Equipment either sold or provided by HOSTING NORTH AMERICA to Customer or purchased directly by Customer used in connection with the Service(s) will not be deemed a breach of HOSTING NORTH AMERICA’s obligations under this Agreement. Any rights or remedies Customer may have regarding the performance or compliance of Equipment are limited to those rights extended to Customer by the manufacturer of such Equipment. Customer is entitled to use any Equipment supplied by HOSTING NORTH AMERICA only in connection with Customer permitted use of the Service(s). Customer shall not resell, transfer, export or re-export any Equipment, or any technical data derived from, in violation of any applicable United States or foreign law.

DISCLAIMER OF WARRANTY (Back to the top)

Customer acknowledges and agrees that HOSTING NORTH AMERICA exercises no control over, and accepts no responsibility for, the content of the information passing through HOSTING NORTH AMERICA’s host computers, network hubs and points of presence (the "HOSTING NORTH AMERICA Network") or the Internet. NEITHER HOSTING NORTH AMERICA, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT HOSTING NORTH AMERICA PROVIDES. NEITHER HOSTING NORTH AMERICA, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. HOSTING NORTH AMERICA IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CLIENTELE VIA THE SERVICE (S) PROVIDED BY HOSTING NORTH AMERICA.

INDEMNIFICATION (Back to the top)

Customer will indemnify, save harmless, and defend HOSTING NORTH AMERICA and all directors, officers, employees, and agents of HOSTING NORTH AMERICA (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys’ fees) arising out of or relating to the use of the Services by Customer, including any violation of the HOSTING NORTH AMERICA Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortuous interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.

LIMITATION OF LIABILITY (Back to the top)

IN NO EVENT SHALL HOSTING NORTH AMERICA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF HOSTING NORTH AMERICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will HOSTING NORTH AMERICA’s liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Customer for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to Customer. In such jurisdictions, HOSTING NORTH AMERICA’s liability (and the liability of its affiliates, agents, content providers and service providers) shall be limited to the greatest extent permitted by applicable law.

FORCE MAJEURE (Back to the top)

HOSTING NORTH AMERICA shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, terrorist or other attack, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

INTELLECTUAL PROPERTY (Back to the top)

Customer represents and warrants that Customer’s use of the Services shall not infringe the intellectual property or other proprietary rights of HOSTING NORTH AMERICA or any third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of HOSTING NORTH AMERICA (collectively, "HOSTING NORTH AMERICA Intellectual Property") is vested in HOSTING NORTH AMERICA and/or in HOSTING NORTH AMERICA’s licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the HOSTING NORTH AMERICA Intellectual Property. Customer may not copy, modify or translate the HOSTING NORTH AMERICA Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the HOSTING NORTH AMERICA Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute the HOSTING NORTH AMERICA Intellectual Property in any manner without the prior written consent of HOSTING NORTH AMERICA; provided, however, that nothing in this sentence would preclude Customer from using the HOSTING NORTH AMERICA Intellectual Property as incorporated in the Services. This paragraph shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which Customer may now have or hereafter acquires in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to Customer.

CONFIDENTIAL INFORMATION (Back to the top)

Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party ("Confidential Information"). Except as provided in HOSTING NORTH AMERICA’s Acceptable Use Policy (AUP), each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either party’s use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in receiving party’s possession, as evidenced by receiving party’s records; (c) is disclosed to the receiving party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by the receiving party without any breach of this Agreement; (e) is the subject of a written permission to disclose provided by the disclosing party; or (f) is required by law to be disclosed.

Customer further agrees and acknowledges that HOSTING NORTH AMERICA may disclose Customer account information in accordance with HOSTING NORTH AMERICA’s AUP and Privacy Policy, located at http://www.Hosting North America, as amended from time to time by HOSTING NORTH AMERICA effective upon posting of the revised policy at the URL.

CUSTOMER DATA (Back to the top)

Customer is responsible for its content residing on HOSTING NORTH AMERICA servers, and except as otherwise agreed with HOSTING NORTH AMERICA, for the backup thereof.

GOVERNING LAW. The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the Province/State of Ontario.

ENFORCEMENT OF AGREEMENT (Back to the top)

In the event it is necessary for HOSTING NORTH AMERICA to enforce its rights under this agreement, Customer agrees to pay all fees incurred by HOSTING NORTH AMERICA (including, but not limited to, attorney's fees and collection agency fees).

AMENDMENT OR WAIVER (Back to the top)

Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of HOSTING NORTH AMERICA. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.

ASSIGNMENT AND SEVERABILITY (Back to the top)

This Agreement shall be binding upon and inure to the benefit of Customer, HOSTING NORTH AMERICA and our respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of HOSTING NORTH AMERICA, which consent will not be unreasonably withheld. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

NOTICES (Back to the top)

All notices to Customer hereunder shall be given at the Billing Address provided on the signature page hereto. All notices to HOSTING NORTH AMERICA hereunder shall be given to:

Legal Department
HOSTING NORTH AMERICA
155 East Beaver Creek Road, Unit 24, Suite 894,
Richmond Hill, Ontario, Canada, L4B 2N1

Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to the addresses in this Agreement, or by facsimile. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid.

ENTIRE AGREEMENT (Back to the top)

This Agreement, and any other document or agreements specifically identified in this Agreement, supersedes all previous representations, understandings or agreements.

ACCEPTANCE OF SERVICES (Back to the top)

ACCEPTANCE OF THIS AGREEMENT BY HOSTING NORTH AMERICA MAY BE SUBJECT, IN HOSTING NORTH AMERICA’S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE HOSTING NORTH AMERICA’S ACCEPTANCE OF THIS AGREEMENT. USE OF THE HOSTING NORTH AMERICA NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CUSTOMER represents and warrants that Customer HAS full authority and right to enter into this Agreement. Customer further represents and warrants that Customer IS at least 18 years of age.