1. Definition of Terms
In the following agreement, "HANDROCK" refers to the provider of SERVICES described in this agreement, including the company HandRock Technologies Inc. and HANDROCK's suppliers and contractors. The term "CUSTOMER" refers to the party in this agreement purchasing SERVICES from HANDROCK. The term "SERVICES" refers to the services described in the paragraph below (Services). The term "AGREEMENT" refers to this agreement.
2. Services
In consideration for the payments to be made by CUSTOMER pursuant to the terms of this AGREEMENT, HANDROCK will provide CUSTOMER web and/or application development and hosting SERVICES. The SERVICES provided by HANDROCK are subject to all of the terms and conditions of this AGREEMENT.
"HOSTING SERVICES" refers to standard web and application hosting packages, virtual servers, additional email accounts, excess bandwidth and excess storage. HOSTING SERVICE excludes domain name registrations, SSL certificates, application licensing fees and any charges for systems administrator time.
"DEVELOPMENT SERVICES" refers to design, architecture, programming, analysis, consulting or any other work performed by HANDROCK for CUSTOMER in relation to a web site or software application.
3. Protection of Electronic Data
HANDROCK shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Electronic Data. HANDROCK shall not:
(i) Disclose CUSTOMER's Electronic Data, except as compelled by law in accordance with the paragraph below (Compelled Disclosure) or as expressly permitted in writing by CUSTOMER; or
(ii) Access or modify CUSTOMER's Electronic Data, except to provide the SERVICES or prevent or address service or technical problems, or at CUSTOMER's request in connection with customer support matters.
4. Compelled Disclosure
HANDROCK may disclose CUSTOMER's ELECTRONIC DATA if it is compelled by law to do so, provided HANDROCK gives CUSTOMER prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at CUSTOMER's cost, if CUSTOMER wishes to contest the disclosure. If HANDROCK is compelled by law to disclose CUSTOMER's Confidential Information as part of a civil proceeding to which CUSTOMER is a party, and CUSTOMER is not contesting the disclosure, CUSTOMER will reimburse HANDROCK for its reasonable cost of compiling and providing secure access to such Confidential Information.
5. Payment
In consideration for HOSTING SERVICES to be provided by HANDROCK, CUSTOMER shall pay to HANDROCK a monthly fee in accordance with HANDROCK's current fee schedule. Payment shall be due immediately upon CUSTOMER's receipt of HANDROCK's monthly invoice. Alternatively, CUSTOMER may make payments by automatic monthly credit card charges ("AUTO-CHARGE"). HANDROCK is hereby authorized to make automatic monthly charges on or around the first day of each calendar month against CUSTOMER's credit card. The amount of each charge will be calculated by adding the monthly fee for the web hosting plan CUSTOMER has purchased from HANDROCK, plus additional charges incurred during the previous calendar month. This authorization shall be cancelable by CUSTOMER via written notice to HANDROCK, delivered either by email, facsimile transmission or mail.
In consideration for DEVELOPMENT SERVICES to be provided by HANDROCK, CUSTOMER shall pay to HANDROCK a fee for hours worked in accordance with HANDROCK's current fee schedule, unless alternate payment terms have been defined in a signed agreement between HANDROCK and CUSTOMER.
6. Refund Policy
All payments to HANDROCK are nonrefundable. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within sixty (60) days of the time the dispute occurred. If CUSTOMER requests that the SERVICES be cancelled in the middle of a billing cycle, charges through the end of the billing cycle will be billed.
7. Terms
CUSTOMER's service will be determined on a month-to-month basis within the term of this AGREEMENT. The HOSTING SERVICES may be terminated by HANDROCK without cause by giving CUSTOMER one (1) month prior written notice. HANDROCK may cancel this AGREEMENT and the SERVICES without notice upon:
(i) CUSTOMER's failure to pay any amounts invoiced within thirty (30) days after the date of the invoice.
(ii) HANDROCK's determination, in its reasonable discretion, that CUSTOMER has used the SERVICES fraudulently, unlawfully or abusively, and has failed or refused to cease such fraudulent, unlawful or abusive use.
(iii) Credit is refused to HANDROCK on any monthly charge when CUSTOMER is paying monthly fees on an AUTO-CHARGE basis, and such credit is not reinstated.
(iv) CUSTOMER's failure or refusal to cure any breach of this AGREEMENT within fifteen days after notice of such breach has been given by HANDROCK to CUSTOMER. Upon such cancellation of SERVICES, HANDROCK shall remove all of CUSTOMER's electronically stored data from HANDROCK's facilities without liability of any kind to CUSTOMER.
8. Restrictions
The SERVICES, and CUSTOMER's use of the SERVICES, are subject to the following restrictions:
(i) Inappropriate Content Prohibited. CUSTOMER's use of the SERVICES shall not constitute libel or defamation of character, nor infringe on any copyright, trademark or patent, nor shall it violate any trade secret or other intellectual property right of any third party, or any federal, state, or local law, regulation or ordinance, including those pertaining to obscenity, applicable in an area where the Content can be viewed or retrieved.
(ii) Acceptable Use Policies (AUPs). CUSTOMER shall at all times during the use of the SERVICES abide by HANDROCK's AUPs as established and modified from time to time, and the AUPs of all other networks which CUSTOMER may traverse in the course of its use of the SERVICES.
(iii) Other usage policies. HANDROCK reserves the right of discretion in what may be considered as acceptable usage of the SERVICES. HANDROCK reserves the right to modify the terms of this AGREEMENT and prices for the SERVICES at any time.
9. Service Level Agreement (SLA)
9.1 99.99% Server Availability Guarantee
HANDROCK's Server Availability Guarantee is to have all HANDROCK servers responding to HTTP, SMTP and POP3 requests over the Internet 99.99% of the time.
9.2 Exclusions
This guarantee excludes scheduled and emergency maintenance on the HANDROCK network and equipment. Scheduled maintenance will occur during the standard HANDROCK maintenance window of 12:00AM to 6:00AM Pacific Standard Time. HANDROCK reserves the right to perform emergency maintenance at any time deemed necessary by HANDROCK's reasonable judgement. Maintenance that is expected to cause Server Unavailability for a period longer than one hour will be scheduled at least 48 hours in advance and proper notice will be given to CUSTOMER via email or postings on the HANDROCK service status website at http://status.HandRock.ca. Typically HANDROCK performs maintenance which causes Server Unavailability twice a year to upgrade servers & equipment.
This guarantee excludes any unavailability caused by faulty, unreliable, slow or otherwise nonworking Internet connections to CUSTOMER's premises. HANDROCK shall always retain ultimate judgment on whether or not an outage was the result of CUSTOMER's Internet connection being unreliable or unavailable.
This guarantee excludes any unavailability of servers which are owned by CUSTOMER and managed by HANDROCK, or servers which are used by CUSTOMER exclusively ("CUSTOMER'S SERVERS"), as well as any unavailability caused by failure of CUSTOMER'S SERVERS.
9.3 Server Unavailability Determination Process
"SERVER UNAVAILABILITY" consists of the number of minutes during which any HANDROCK server was unavailable to CUSTOMER, and includes any cause of unavailability other than what is listed in the Exclusions above. Outages will be counted as Server Unavailability only if CUSTOMER opens up a support request with HANDROCK to report such outage.
9.4 Server Unavailability Remedy
For each cumulative 5-minute period of SERVER UNAVAILABILITY to CUSTOMER within a calendar month, HANDROCK shall reimburse CUSTOMER for 5% of one month's charges for the HOSTING SERVICE, not to exclude a total of 50% reimbursements within one calendar month. This reimbursement is referred to as "THE SLA CREDIT".
CUSTOMER's account must be in good standing with no overdue invoices in order to be eligible for THE SLA CREDIT. THE SLA CREDIT IS THE EXCLUSIVE REMEDY FOR UNAVAILABILITY OF CUSTOMER'S WEB SITE OR APPLICATION.
10. Disclaimer of Warranties
Notwithstanding anything contained in this AGREEMENT, CUSTOMER acknowledges that there are known and unanticipated risks associated with Internet use, some of which could result in physical, emotional or psychological injury or even death, or damage to individuals, to property, or to third parties. Such risks cannot be eliminated without jeopardizing the essential qualities of use of the Internet. These risks include, among other things: credit card theft, electronic data theft, identity theft, fraud, solicitation, stalking, invasion of privacy, unwanted receipt of offensive or obscene material, trespass to chattels or denial of service attacks. HANDROCK exercises no control over and expressly disclaims any obligation to monitor CUSTOMER with respect to violations of this AGREEMENT or any content of the information passing through HANDROCK's host computers, network hubs and points of presence, or the Internet. HANDROCK has no liability or responsibility for the actions of CUSTOMER. CUSTOMER voluntarily engages in the activity of Internet use and bear the risks associated with that activity. HANDROCK does not represent or warrant (a) that SERVICES will be uninterrupted or error-free; (b) that defects will be corrected; (c) that the SERVICES or material accessible from the SERVICES will be free of viruses or other harmful applications or components; and (d) that the SERVICES will be secure.
THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY HANDROCK OR ANY THIRD PARTY ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. HANDROCK AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER REGARDING THE CONTENT OR SERVICES, OR HYPERTEXT LINKS TO ANY WEBSITES. HANDROCK AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability
IN NO EVENT SHALL HANDROCK, ITS LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, DAMAGES INCURRED BY CUSTOMER RESULTING FROM LOSS OF DATA, DUE TO DELAYS, NON DELIVERIES, MISDELIVERIES OR INTERRUPTIONS IN SERVICES, HARDWARE OR SOFTWARE FAILURES, UNAUTHORIZED ACCESS TO THE CUSTOMER'S ELECTRONIC DATA BY A PARTY NOT INVOLVED IN THIS AGREEMENT, OR BY INADVERTENT DAMAGE OR DESTRUCTION OF ELECTRONIC DATA STORED OR MANAGED BY HANDROCK.
THE LIABILITY OF HANDROCK TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID TO HANDROCK UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY HANDROCK UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, CUSTOMER RELEASES HANDROCK AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE FOREGOING LIMITATION.
12. Indemnification
In the event that CUSTOMER violates this AGREEMENT, CUSTOMER shall indemnify, defend and hold harmless HANDROCK and its directors, officers, shareholders, agents, suppliers and contractors from and against any and all allegations, claims, expenses (including reasonable attorneys' fees), liability or suits made, threatened or brought in relation to or arising from such violation.
13. Force Majeure
Neither party in this AGREEMENT shall be considered in default of its obligations hereunder (except the payment of money, which shall not be excused) if performance of such obligations is prevented or delayed by acts of God or government, war, riots, acts of civil disorder, labor disputes, failure or delay of transportation, or such other causes as are beyond such party's control.