Web Hosting Agreement - Terms & Conditions
This agreement applies to all hosting services provided by BluFyre Media, such as website hosting and our hosted newsletter marketing system, FyreMail.
Web Hosting - An Internet web hosting service rendered by Provider that includes the installation, maintenance, repair, and the 24 hour Internet connection of one or more shared or physical computers for use by Customer.
Network Transfer - A finite amount of Provider's network transfer (bandwidth) capability for use by Customer using the Services requested by Customer.
Technical Support - Technical phone and electronic support is provided only to Customer's authorized Contacts ("Contacts") as listed within Customer's Account Center. Technical Support does not include computer training, software training, or any other general technical or Internet training.
Order - means either (a) the hosting proposal or agreement document provided to Customer by Provider for signature that describes the services to be provided, and is so signed by Customer either electronically or physically, or (b) the online order that Customer submits to Provider via Provider's website.
Services - means the products or services as described in the Order.
Services, Payments & Fees
Setup fee - Customer agrees to pay in full the amount of any applicable non-recurring one-time setup fees listed in the Service description prior to any server provisioning, equipment acquisition or installation by Provider.
Recurring fee - Customer agrees that all recurring fees will be billed one month in advance, and payment is due by the invoice due date, or within 30 days of the invoice date if no due date is listed.
Refunds - Except where expressly provided in this Agreement, all payments to Provider are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage.
Domain Names - Customer agrees to pay an initial fee for the registration and setup of a domain name. The customer also agrees to pay any recurring annual registration renewal fees associated with the domain name.
Throughout the course of service rendered to Customer by Provider, Customer will remain the full owner and controlling entity for the Customer's established domain name. Registration and modification of domain name status, including name server location is handled by independent domain name registrars.
Data Back-up - Customer is responsible for independent backup of data stored on Provider's servers; unless the Customer's Web Hosting Service Order includes backup services in which case data backup will be performed under the terms of the specific data backup plan chosen by Customer.
Network Transfer overage fee - Should Customer exceed the total amount of combined network transfer as described in the Service description, Customer agrees that overage fees will apply and be due immediately.
Additional Resource Utilization fees - Should Customer exceed the total amount of included hosting resource utilization as described in the Service description, the Customer agrees that overage fees will apply and be due immediately.
Acceptable Use - Customer's use of Provider's services is further governed by the Provider's Web Hosting "Acceptable Usage Policy" ("AUP") which promotes safe computing practices. Provider may at its sole discretion change, update and revise the AUP. The AUP is maintained at the following URL: http://www.blufyremedia.com/legal/acceptable-usage-policy
Account Owner - The highest authority of a single specific Account is the Account Owner. Individual Services that are associated with an Account are controlled by the Account and its Account Owner. The Account Owner is established at the time the Account is created. The details of an Account Owner must be that of a real person. It is not permitted to use fictitious or "fake" names for the details of an Account Owner. Accounts containing fictitious or "fake" names, and contact details that do not reflect the details of a real person may be suspended or terminated without notice.
Transfer - The Account Owner role can be transfered only to an existing Contact on an Account and only with the permission of the current Account Owner. If the Account ownership role is transferred to another Contact, the previous Account Owner is no longer privileged beyond the basic privileges of their new role.
Term of Agreement & Cancellation
Term - This Agreement will be for the initial term as specified in the Order. If no term is specified, the initial term will be one month. At the end of the initial term, the Agreement will renew on a month to month basis. This agreement shall be effective as long as Customer or Customer's contacts continue to use Provider's Service. Customer shall pay any applicable federal, provincial or local use, franchise, excise, sales or privilege taxes, duties, fees or similar liabilities chargeable to or against Provider resulting from the services furnished by Provider. If the Customer does not wish to renew, then the Customer must submit a cancellation request to the Provider as outlined in this Agreement.
Termination & Cancellation - Precautions have been put in place to ensure the safe and legitimate cancellation of all customer related services. In the event that a Service needs to be cancelled, customers may contact the Provider by phone, email or via your client account. Cancellation requests made by fax will not be accepted. If the cancellation request is made by phone or email, the Provider may contact you to confirm the legitimacy of the request.
This Agreement may be terminated in the following ways:
- by Customer without cause and for convenience by providing a cancellation request;
- by Provider without cause providing you with notice at least 30 days prior to the termination date;
- by Provider in the event that you do not pay fees due hereunder within 14 days of the due date;
- as otherwise provided in this Agreement or the Provider's Acceptable Usage Policy
Termination & Cancellation Liability - If you terminate this Agreement before the end of the Initial Term, then you will be required to pay:
- any applicable termination fees as outlined in the Order;
- actual amounts that have been invoiced or are due for the services provided to the date the Agreement is terminated as determined by the cancellation date;
- for non-monthly Agreements, the difference between the monthly rate for the services listed on the Order at the time of the Order, and the rate the Services were discounted to based on the Term pricing including any and all promotions. For the discount calculation, your liability will be limited to the period from the commencement of the Initial Term to the cancellation date.
Service Renewal - In the event that the customer fails to renew their services by the specified renewal date, Provider will keep the services online temporarily for 14 days as a courtesy to the customer. If the service is still not renewed by the end of the 14 day period, the account will be suspended (taken offline) and removed after 90 days as per the Account Removal policy. Services may be reactivated prior to removal subject to any applicable reactivation fees.
Account, Files & Data Removal - As a courtesy to the customer, Provider will retain the customer account (including all of the customer files, data, databases and configurations) on our server for a period of 90 days after the original service renewal date. After the 90 days, Provider will no longer be responsible or liable for the customer's account and will permanently remove the account, along with all files, data, databases and configurations, from Provider's servers. After such a removal occurs, Provider will no longer be able to recover or restore the account or any portion thereof.
Compliance with Law - Customer will use the Services offered by Provider in a manner consistent with all applicable local, provincial and federal laws and regulations.
Common Carrier - Provider and Customer agree that Provider is solely acting as a common carrier in its capacity of providing services hereunder, is not a publisher of any material or information and has no right to edit or censor the material at the Servers in use by the Customer. Provider is not responsible nor pre-approves any of Customer's website content. All material submitted by Customer for publication will be considered publicly accessible. Provider does not screen in advance Customer's material submitted to Provider for publication. Provider's publication of material submitted by Customer does not create any express or implied approval by Provider of such material, nor does it indicate that such material complies with the terms of this Agreement.
Availability of service - Customer understands and agrees that interruptions of Web Hosting Services may occur due to scheduled maintenance and repair by Provider, or by strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts, power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other causes beyond Provider's control, as defined by standard practices in the industry. Customer agrees that under no circumstances will Provider be held liable for any financial or other damages due to such interruptions. In no event shall Provider be liable to Customer or any other person for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, and loss of income or cost of replacement services. Such failure or delay shall not constitute a default under this Agreement.
Limitation/Disclaimer of Liability - Provider is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or services its customers may utilize.
DISCLAIMER OF WARRANTIES - PROVIDER'S SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. PROVIDER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF PROVIDER HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF PROVIDER'S SERVICE TO CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND THE FEES PAID BY CUSTOMER TO PROVIDER FOR SERVICES, DURING THE PERIOD OF DISRUPTION OF MALFUNCTION.
Indemnity - (a) Customer agrees to defend, indemnify and hold Provider harmless from and against any and all claims, obligations, losses, liabilities and expenses (including reasonable attorneys' fees and costs) incurred by Provider arising from or due to claims made by third parties (including customers of Customer) that are related to or arising out of: (a) false advertising claims against Customer (or customers of Customer), (b) liability claims for products or services sold by Customer (or Customer's customers) any other transactions between Customer and third parties, or (c) any content submitted by Customer for publication by Provider.
Force Majeure - Provider shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts , power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other similar occurrences; any law, order, regulation, direction, action or request by any government (including provincial and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lockouts, or work stoppages or other labor difficulties; failures, shortages, breaches or delays.
Liability of Customer - Any mistakes, accidents, omissions, interruptions, delays, errors or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the Customer or by the use of Customer-provided facilities or equipment, or by the use of facilities or equipment furnished by any other person using Customer's facilities which are connected to Provider's facilities, shall not result in the imposition of any liability upon Provider and Customer shall pay to Provider any reasonable costs, expenses, damages, fees or penalties incurred by Provider as a result thereof, including costs of local exchange company, labor and materials.
Nondisclosure - Provider and Customer shall use their best efforts to keep the provisions (including price) of the Agreement from the public, competitors, or others who may gain benefit from such knowledge unless required by law to divulge such information to regulatory authorities or unless required in connection with enforcing that party's rights hereunder.
Applicable Law - This agreement shall be governed by and construed and take effect in all respects in accordance with the laws of the province of Alberta, Canada and any action hereunder shall take place in the city of Edmonton, Alberta, Canada.
Relationship of the Parties - The parties intend that an independent contractor relationship will be created by this Agreement, and that no additional partnership, joint venture or employee/employer relationship is intended - unless otherwise specific in a special agreement.
Taxes - If any federal, provincial or local governmental entity with taxing authority over the services provided under this Agreement imposes a tax directly on the services provided by Provider to Customer under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Provider may pass the direct amount of such cost on to Customer, and Customer shall promptly pay such cost.
Waiver - Any party's failure to insist on compliance or enforcement of any provision of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision of this Agreement.
Arbitration - Should any dispute, difference or claim arise between either of the parties in relation to this agreement which cannot be amicably resolved, the matter shall be resolved by binding arbitration in accordance with the laws of the province of Alberta, Canada and the then current Rules of Procedure for Commercial Arbitration of the ADR Institute of Canada, Inc. (www.amic.org) ("Institute"). The arbitration tribunal shall consist of three (3) arbitrators chosen by the parties from a slate of eight (8) proposed arbitrators provided by the Institute. If the parties are unable to agree on all three arbitrators within seven (7) days after receipt of the slate provided by the Institute, the Institute shall appoint the number of arbitrators the parties have been unable to agree upon from the slate. The decision of the tribunal shall be final and binding and no appeal shall lie therefrom. The tribunal shall have the power to order one party to contribute to the reasonable costs and expenses of the other party, or to pay all or any portion of the costs of the arbitration, as the panel determines in its discretion.
Notices - Any notice under this Agreement may be e-mailed, delivered personally or mailed to the authorized contact or address on the account.
Last Updated: March 29, 2013