Terms of Service

 

By signing up, each customer agrees to comply with the Terms of Service listed below.

 

This Web Hosting Agreement (this "Agreement") is between Andre Campbell (The Cube Host), a web hosting entity and the person (customer) who signs up for the services offered by TCH's web hosting service.

 

Table of Contents

 

1. Services
2. Term
3. Payments
4. Law/AUP
5. Customer Information
6. Indemnification
7. Disclaimer of Warranties
8. Limitation of Damages
9. Suspension of Services/Termination
10. Cancellation and Money Back Guarantee
11. Request for Customer Information
12. Back Up Copy
13. Changes to TCH's Network
14. Notices
15. Force Majeure
16. Uptime Guarantee
17. Governing Law/Disputes
18. Changes to Terms of Service
19. Miscellaneous

 

1.Services.

 

Subject to the terms of this Agreement, and contingent on Customer's satisfaction of TCH's credit approval requirements, TCH agrees to provide the web hosting services described in the Order for the fees stated in the Order.

 

2.Term.

 

The initial service term of the Agreement shall begin on the date that TCH generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless TCH or Customer provides the other with written notice of non-renewal at least fourteen (14) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."

 

3.Payments.

 

• (a) Fees.

   

  Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. TCH may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes TCH to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise TCH will invoice the Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued between three (3) to seven (7) days before the 1st day of each billing cycle and fees shall be due on the 1st day on the billing cycle.

   

  Payments must be made in Canadian dollars. Customer is responsible for providing TCH with changes to billing information (such as credit card expiration, change in billing address) At its option, TCH may accrue charges to be made to a credit/debit card until such charges exceed $10.00. TCH may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law.

   

  Fees not disputed within thirty (30) days of due date are conclusively deemed accurate.

   

  TCH may suspend the service without notice after seven (7) days of the due date if payment for the service is overdue. TCH then may terminate your account seven (7) days after the account was suspended.

   

  If customer chooses to have their account restored after it was terminated, an $15 fee will have to be payed to restore the account. However, a backup of the terminated account is not guaranteed.

   

• (b) Fee Increases.

   

  TCH may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

   

• (c) Taxes.

   

  At TCH's request Customer shall remit to TCH all sales, GST or similar tax imposed on the provision of the services (but not in the nature of an income tax on TCH), regardless of whether TCH fails to collect the tax at the time the related services are provided.

   

• (d) Early Termination.

   

  Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event TCH terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for TCH's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.

   

 

4.Law/AUP.

 

Customer agrees to use the service in compliance with applicable law and TCH's Acceptable Use Policy posted at www.thecubehost.com/aup.php (the"AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that TCH may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of TCH's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with TCH's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between TCH and Customer regarding the interpretation of the AUP, TCH's commercially reasonable interpretation of the AUP shall govern.

 

5.Customer Information.

 

Customer represents and warrants to TCH that the information he, she or it has provided and will provide to TCH for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to TCH that he or she is at least 18 years of age. TCH may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.

 

6.Indemnification.

 

Customer agrees to indemnify and hold harmless TCH, TCH's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.

 

7.Disclaimer of Warranties.

 

TCH DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW TCH DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.

 

8.Limitation of Damages.

 

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

 

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF TCH AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

 

9.Suspension of Service/Termination.

 

• (a) Suspension of Service.

   

  Customer agrees that TCH may suspend services to Customer without notice and without liability if:

   

  • (i) TCH reasonably believes that the services are being used in violation of the AUP;

   

  • (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP;

   

  • (iii) TCH reasonably believes that the suspension of service is necessary to protect its network or its other customers, or

   

  • (iv) as requested by a law enforcement or regulatory agency. Customer shall pay TCH's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

   

• (b) Termination.

   

  The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if TCH fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by TCH prior to the expiration of the Initial Term or any Renewal Term without further notice, without liability and without refund in the following situations:

   

  • (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement;

   

  • (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from TCH describing the violation in reasonable detail;

   

  • (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or

   

  • (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

   

 

10.Cancellation and Money Back Guarantee.

 

• (a) Cancellation.

   

  Customer is free to cancel their account at any time by sending a request to our billing department. However, if the account is cancelled prior to the expiration date of the billing term, payed fee's will not be refunded unless cancelled within the 14 day moneyback guarantee as stated in subsection 10.b.

   

• (b) Money Back Guarantee.

   

  If requested, a customer may receive a full refund of the hosting service within fourteen (14) days of the service commencement date. The refund is strictly only for the bronze, silver and gold hosting plans. Hosting services purchased under a coupon, special or a promotion may be excluded from this refund unless otherwise stated. Also, additional fee's and services are exclude from the refund. Such non-refundable fee's include domain registration fee's and start-up fee's. A customer may only use the money back guarantee once.

   

 

11.Requests for Customer Information.

 

Customer agrees that TCH may, without notice to Customer,

 

• (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that TCH believes violates applicable law, and

 

• (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

 

12.Back Up Copy.

 

Customer agrees to maintain a current copy of all content hosted by TCH notwithstanding any agreement by TCH to provide back up services.

 

13.Changes to TCH's Network.

 

Upgrades and other changes in TCH's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. TCH reserves the right to change its network in its commercially reasonable discretion, and TCH shall not be liable for any resulting harm to Customer.

 

14.Notices.

 

Notices to TCH under the Agreement shall be sent to the billing department. Notices can be sent to the billing department by clicking here. Notices to Customer may be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

 

15.Force Majeure.

 

TCH shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond TCH's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

 

16.Uptime Guarantee.

 

If TCH failed to provide 99.9% uptime, you will be issued a refund depending on the uptime as noted below.

 

• 99.9 - 0% Credit Refund
• 99.8 - 10% Credit Refund
• 99.7 - 20% Credit Refund
• 99.6 - 30% Credit Refund
• 99.5 - 40% Credit Refund
• 99.4 - 50% Credit Refund
• 99.3 - 60% Credit Refund
• 99.2 - 70% Credit Refund
• 99.1 - 80% Credit Refund
• 99.0 - 90% Credit Refund
• Less than 99.0 - 100% Credit Refund

 

Please note that TCH will not be responsible for downtime caused by events beyond its control as stated in the Force Majeure. In order to claim a refund a request must be sent to the billing department with proof of downtime such as log files. If your refund claim is approved, the credit will be added to your account within fourteen (14) days.

 

17.Governing Law/Disputes.

 

The Agreement shall be governed by the laws of Canada. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE PROVINCIAL AND NATIONAL COURTS IN REGION OF PEEL ,ONTARIO, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

 

18.Changes to the Terms of Service

 

TCH may change the Terms of Service, Acceptable Use Policy or the Privacy Policy at any time without notification. It is the customer's responsibility to check these documents regularly for changes.

 

19.Miscellaneous.

 

TCH will not take responsibility to any losses obtained by using our service. TCH doesn't take responsibility for content posted on sites affiliated with our site in any way.

 

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.