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WEB HOSTING AGREEMENT
Contract template applicable for all our hosting clients.
This Web Site Hosting Agreement (the “Agreement”) is made and entered on [______________] (the “Effective Date”) by and between [client business name] (“Client”), hereby represented by client name, duly authorized as s/he so declares and MageMontreal Inc. (“MageMontreal ”) hereby represented by Guillaume Le Tual, duly authorized as he so declares (Client and MageMontreal , referred to as the “Party(ies)”).
WHEREAS MageMontreal is in the business of providing Internet web site design and development products and services, and various products and services related thereto, such as web hosting; and
WHEREAS the Parties wish to set out the terms and conditions upon which MageMontreal will provide hosting services with respect to the Client’s Internet web site (the “Web Site”) in accordance with the agreed upon terms;
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, (the receipt and sufficiency of which is hereby acknowledged by each of the Parties), the Parties covenant and agree as follows:
1. WEB SITE
1.1 Acceptance. Prior to accepting to provide the Hosting Services set out in section 2, MageMontreal will analyze Client’s Web Site to ensure that it meets the criteria (the “Criteria”) needed for it to properly provide the Hosting Services.
1.2 Adjustment. If the Web Site does not meet the Critera, Client may request that MageMontreal adjust the Web Site so as to conform to such Criteria, at Client’s expense.
2. WEB SITE HOSTING SERVICES
2.1 Hosting Services. Subject to Section 1.1, MageMontreal shall install and host the Web Site on its server located either in Montreal, Canada, or its other servers located in the United States. MageMontreal shall host the Web Site (the “Hosting Services”) in a professional and workmanlike manner in accordance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, MageMontreal shall be responsible for the Hosting as may be required for the hosting of the Web Site in accordance with the provisions of this Agreement. Backups and recovery services are available for an additional fee.
2.3 User Information. MageMontreal agrees that all information collected by MageMontreal about users of the Web Site (the “User Information”), all traffic data and all content posted or uploaded on the Web Site by Users (the “User Content”) shall belong to Client. MageMontreal agrees to treat the User Information and User Content as confidential and agrees that it shall not use the User Information and User Content in any manner without the prior written consent of Client.
2.4 Site Backup. MageMontreal shall, at its expense, make a complete backup of the Website every day which is stored for a few days then it is automatically deleted. MageMontreal shall also, at its expense, maintain a complete and daily updated copy of such Website backups on a second server located at a remote location as additional protection for a few days then it is automatically deleted.
2.5 Client Responsibility regarding Back-ups: Despite section 2.4, the Client is solely responsible for keeping a copy of the backup of its Web Site and data.
2.6 Support Requests: MageMontreal is open during normal business hours from Monday to Friday. Support requests sent over the weekend will be deemed received the next business day.
2.7 Emails not included in the hosting: It is understood that MageMontreal strictly does not provide any email services with the website hosting service. All emails services will be external services from any provider the client wants to use for his emails such as Microsoft Office 365, Google Apps, or other email providers.
The access to the manual emails setups is not blocked, a technologically knowledgeable client could decide to setup himself his emails on our server anyway but that feature is not included in this agreement, is not supported, is not recommended and should not to be used. MageMontreal does not provide any email services.
3. FEES AND PAYMENT
3.1 Fees. In consideration of the performance of the Hosting Services, Client shall pay MageMontreal the fees set out in “Annex A: Fees”.
3.2 Invoicing. MageMontreal shall invoice Client for the Hosting Services described in this Agreement. Invoices will be sent to Client at the contact information set out in the notice section of this Agreement. Invoices shall be payable on the first day of each month for the upcoming month.
3.3 If the current hosting plan is exceeded, then Client will automatically be upgraded to the next level of the hosting plan and shall be deemed to have accepted the increased fees (ex: 30$/month upgraded to 60$/month).
3.4 If the client’s website is infected by any Virus/Trojan/Malware or any type of script or code defect which compromise the security of its website, of the server, or the performance of the server, or the server’s IP addresses reputation(in case of spam), MageMontreal reserves the right to suspend the hosting account and put offline the website and not reactivate the account until the problem has been fixed at client’s expenses. MageMontreal might offer a quote to fix such problems if its programmers are available but it is the client’s responsibility to keep his website secure. As per section 6 client may not claim any damages what so ever direct or indirect if MageMontreal is forced to suspend the hosting account.
3.4.1 If the client’s website has a CMS (Content Management System) such as WordPress, Magento, or other CMS, the client should at all-time keep his CMS version up to date within 3 weeks of the new version of the CMS being available or of any security patch being released.
4. TERMS AND TERMINATION
4.1 Term. This Agreement shall become effective on the Effective Date and shall continue in effect for twelve (12) months from the Effective Date (the “Term”), unless terminated earlier in accordance with this Article 4.
4.2 Renewal. This Agreement shall automatically renew for a subsequent twelve (12) month period, unless either Party provides the other Party with a written notice of its intention not to renew the Agreement no later than thirty (30) days prior to the end of the then-current Term.
4.3 Respect of Term. The Client renounces its right to terminate this Agreement during the Term. If the Client terminates this Agreement prior to the end of the Term, it will be responsible to pay for the Hosting Services as though they were fully and completely provided up to the end of the Term, as reasonably estimated by MageMontreal in its sole discretion.
4.4 Termination for Material Breach. In the event of any material breach of the terms and conditions of this Agreement, including but not limited to not carrying out the Hosting Services described in this Agreement by MageMontreal , non-payment by the Client of amounts owed or breach of confidentiality obligations herein, the non-breaching Party may terminate this Agreement by giving fifteen (15) days prior written notice to the other Party. This Agreement shall not terminate however, if the other Party has cured the breach prior to the expiration of such fifteen (15) day period to the satisfaction of the non-breaching Party.
4.5 Termination Without Notice. This Agreement may be terminated immediately, without notice, upon:
(a) the institution by or against either Party of insolvency, receivership, or bankruptcy proceedings;
(b) either Party making an assignment for the benefit of creditors; or
(c) either Party’s dissolution.
(d) the clause 3.4 is not respected
Upon expiry or Termination without Notice, MageMontreal will cease to host the Web Site and will cease performing the Hosting Services and shall forthwith remove the Web Site from servers used by MageMontreal or on its behalf to operate the Web Site.
4.6 Assistance in Transferring Hosting of Web Site. At Client’ expense and at MageMontreal ’s sole discretion, MageMontreal shall render transfer services to move the Client’s website to
another hosting company or to MageMontreal servers. Such assistance shall be based on a fee to be agreed upon by both parties.
5. REPRESENTATIONS AND WARRANTIES
5.1 EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE HEREIN, THE PARTIES EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTES, ORAL OR WRITTEN, OR ARISING BY OPERATION OF LAW, STATUTE OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6. LIMITATION OF LIABILITY
6.1 IN NO EVENT AND TO THE EXTENT LEGALLY POSSIBLE:
(a) SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DIRECT DAMAGES EXCEED THE FEES PAID BY CLIENT TO MAGEMONTREAL PURSUANT TO THIS AGREEMENT; OR
(b) SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF USE, LOSS OF DATA, DOWNTIME, LOST PROFITS)
WITH RESPECT TO, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING.
7.1 Confidential Information. The Parties agree to keep secret any and all information, data and documents provided by the other Party and marked confidential. The contents of this Agreement shall be kept confidential at all times. In cases where a Party desires to disclose only the fact that the Agreement has been entered into without giving any further details, it may do so without the approval of the other Party.
This confidentiality undertaking shall not apply to the extent each party is obligated by law, rule or regulation and an official or court order ruling to disclose such information or documents, if the information is in the public domain or if information is provided by the disclosing party.
8.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein, excluding those provisions relating to conflicts of laws and excluding the United Nations Convention on Contracts for the International Sale of Goods if applicable. The Parties hereby irrevocably subject themselves to the non-exclusive jurisdiction of the Courts of the Province of Quebec.
8.2 Severability. If any provision contained in the Agreement is found by court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, it shall be deemed severed from the Agreement and the remaining provisions contained herein shall not be in any way affected or impaired thereby.
8.3 Force Majeure. Neither Party is responsible for a failure to fulfill its obligations under this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its control, such as, but not limited to, acts of God, acts of government, war, riots, strikes, accidents in transportation. The Parties agree to immediately provide notice of any such circumstances and undertake to restore the status quo as soon as is feasible.
8.4 Annex. The Annex(es) to this Agreement are hereby incorporated herein by reference.
8.5 Entire Agreement. The Parties agree that this Agreement, including any attached Schedules, constitutes the complete and exclusive statement of the terms and conditions between them with respect to its subject matter. Any representation, warranty or condition, written or otherwise, not expressly contained in this Agreement or in an authorized written amendment thereto shall not be enforceable by either Party. Each of the Parties acknowledges that it has not been induced to enter into this Agreement by any representations not specifically stated herein. This Agreement supercedes all expressly inconsistent representations, whether oral or written, of the Parties pertaining to the subject matter of this Agreement. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms.
8.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and such counterparts together will constitute one and the same instrument. For purposes hereof, a facsimile copy of this Agreement, including the signature pages hereto, will be deemed to be an original.
8.7 Notice. Any notice or other written communication required or permitted hereunder will be in writing and will be given by personal delivery, by registered mail, email or facsimile (with proof of transmission) addressed to the recipient as follows:
514-922-6622, ask for Guillaume Le Tual
by mail or personal delivery for the client:
or to such other address, individual or facsimile number as may be designated by notice given by either Party to the other.
8.8 Waiver. No amendment or waiver of this Agreement will be binding unless executed in writing by the Parties to be bound hereby. No waiver of any provision of this Agreement will be deemed or will constitute a waiver of any other provision, nor will any such waiver constitute a continuing waiver unless expressly provided.
8.9 Prohibition of Assignment. This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns, provided that either Party may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party. For the purposes of this Agreement, any change of control of a party (including by way of merger, amalgamation, or acquisition of shares sufficient to control such party, or acquisition of all or substantially all of the assets of such party) shall be deemed an assignment for the purposes of this Agreement.
8.10 Relationship of the Parties. The relationship created by this Agreement is that of independent contractor. Nothing in this Agreement will be construed to make either Party the partner, agent, employee or representative of the other or grant any third party any rights hereunder. Neither Party has authority to make any warranties or incur any liabilities or obligations on behalf of or binding on the other Party.
9. AGREEMENT IN ENGLISH
9.1 The Parties hereto have required that this Agreement as well as any notice, document or proceeding relating hereto be written in English. Les Parties aux présentes ont exigé que le présent contrat ainsi que tout autre avis, document ou procédure s’y apportant soit rédigé en anglais.
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the date first set forth above.
MageMontreal X INC.
Per: Guillaume Le Tual
[Client business name]
Per: [Client name]
FEES & PAYMENT TERMS
Client will pay the following fees to MageMontreal, in exchange for the Hosting Services to be provided by MageMontreal , in the manner and at the time set out below:
The fees for the hosting of the website are as per the quote accepted by the client, starting at $30 per month for an information/corporate type of website.
For Magento e-commerce websites, the hosting starts at $75 per month for 100,000MB of monthly transfer and 10,000MB of Storage.
Bandwidth and storage beyond this limit will be automatically upgraded to the next service plan by additional increments of 30$/month for an additional 100,000MB of monthly transfer and additional 5,000MB of Storage. The website’s usage of additional CPU and RAM could also require a package update in addition of bandwidth and storage use. MageMontreal will notify Client of any upgrades by email.
All fees are payable in Canadian dollars and taxes are in addition.