WEBGATE CANADA

1.0 Hosting Agreement

1.1 – Customer’s use of Webgate’s facilities to host a web site for Customer shall constitute Customer’s acceptance of the terms and conditions in this Hosting Agreement. The terms “you” or “your” shall refer to Customer.

2.0 Term & Termination for Convenience

2.1 – The initial and minimum service period for dedicated Webgate hosting service is 12 months from the effective date.

2.2 – Customers who pay monthly may terminate this Agreement for convenience 90 days after giving Webgate written notice. In the event of such termination, Customer will pay Webgate 75% of the applicable monthly minimum amounts for each remaining month of the then current term of this Agreement, in addition to paying any amounts due and owing as of the effective date of termination.

2.3 – If Customer terminates this Webgate Agreement because: (A) Customer commits to a higher speed service access with Webgate, or (B) Customer commits to a longer-term service term with Webgate, then the termination fee in 2.2 does not apply. For (A) or (B), this Agreement will be superseded by the new service agreement.

2.4 – By giving 60 days advance notice in writing, service may be terminated at any time by either party following the initial service period.

3.0 Renewal and Pricing – Customers who Pay Yearly

3.1 – This Agreement will automatically be renewed for a further term of one year from the expiry date unless cancelled by notice in writing given to Webgate by the Customer, or to the Customer by Webgate, at least 60 days prior to the expiry date.

3.2 – This Agreement is for one year and on any anniversary date the price for Webgate’s web hosting services is subject to revision in accordance with Webgate’s then prevailing rates.

3.3 – Cancellations will only be considered valid if received in writing. Any notice of cancellation received less than 60 days from the customer’s expiry date will incur a cancellation fee: 59-29 days notice: 25% of their yearly invoice for Early Termination without Sufficient Notice. If cancellation is not received in writing until after the customer’s yearly invoice has been issued (or 30-0 days notice, whichever comes first), then the customer will owe 50% of their yearly hosting as an Early Termination without Notice Fee. The customer is fully responsible for keeping track of their own yearly expiry and payment due dates as it relates to cancellation timeline requirements. Customers will receive their invoices within 45 days of their expiry date and their payment will be due within 30 days of the issuance of the invoice. Failure to remit payment In Full within 30 days of their invoice issuance will result in a suspension of their account until payment is received. Customers have 5 days grace period (This includes business and weekend days) past their payment due date to remit payment in order to avoid any unintended loss of service. If this date precedes the customer’s Hosting expiration date, then the account will not be shut down until their hosting expiry date. Failure to pay will result in the customer being charged the Early Termination without Notice Fee. Webgate reserves the right to not cooperate with any moving plans of customers who are delinquent in remitting their Account Payments and and/or any applicable Termination Fees and to suspend or even hold their accounts at our discretion, should they attempt to move to another hosting or domain provider while their account with Webgate remains delinquent. Their accounts (Websites or Domains) will be held at our discretion until they have paid In Full any remaining account balances. Any accounts over 60 days delinquent will be sent to collections without any further notice expected or required post-issuance of their original invoice. Late Charges will be applied as – 2% per month (24% per annum) on all overdue balances. A $45.00 charge will be levied on NSF cheques. Overdue balances for outgoing customers are not payable by cheque. These balances are payable by E-Transfer, Money Order, or Cash Only. All sales are final. No refunds.

3.4 – Any customer who remains on our Hosting servers post-cancellation (written or verbal) will continue to be responsible for their payment. This also applies to any cases due to any negligence on the part of their next domain name registrar or next hosting provider. If the customer remains 1-29 days past their expected move date (the last day of paid services), they will owe for 1 month. If the customer remains 30 or more days past their cancellation date their account will be considered auto-renewed for the year and any applicable Early Termination Fees as noted in 3.3 will apply.

3.5 – Failure to respond or a negative verbal or text response to collection efforts will result in account suspension on the date of yearly hosting account expiry until account balance is paid in full.

3.6 – Webgate is not responsible for emailed invoices not being received due to customers using 3rd party email providers, invoices going to junk mail or invoices being blocked by any kind of filtering software or hardware installed by the customer or their ISP on their respective equipment.

4.0 General

4.1 – In no event shall Webgate be liable for the usefulness, quality, or content of data accessed by the Customer through Webgate facilities, nor responsible for any loss due to temporary or permanent failure of service provision, nor for use of the Webgate service by Customer or any third party for illegal purposes. Customer will indemnify and hold harmless Webgate from any action by any third party related to Customer’s subscription to Webgate services and Customer’s web site(s).

4.2 – In no events shall Webgate be liable for service problems or other losses arising on account of acts of God, fire, labour disputes of any nature, accident, supplier failure or delay, or other causes beyond the reasonable control of Webgate.

4.3 – Webgate places no general restrictions on the use of data or information used or retrieved by Customer through Webgate facilities, rather the license, copyright, public domain, trade secret, or any other laws or protection covering such data will apply.

4.4 – The provision of service access at any particular connection rate does not constitute a guarantee of the end to end throughput or bandwidth available to Customer.

4.5 – Webgate will inform Customer when service is operational and billing will commence as of that specified date, this becoming the effective date of the initial term of service hereunder.

4.6 – Webgate will furnish contact information to enable Customer to report and resolve service problems.

4.7 – This Agreement and other applicable terms and conditions constitute the entire understanding between Customer and Webgate with regard to web site hosting. Any modifications of this Agreement must be in writing and signed by a duly authorized representative of Customer and a duly authorized officer of Webgate.

4.8 – Where Webgate’s systems are recognized as the authoritative source for DNS entries in your domain or domains, Webgate is not obligated to ensure that (A) the DNS system is correctly configured, (B) your DNS entries will be properly resolved, or (C) Webgate’s DNS systems will be continuously available on an uninterrupted basis. You acknowledge that it is your responsibility to test Webgate’s implementation of your DNS hosting and notify Webgate of any misconfiguration or error in that implementation. You agree to provide any requested additions or changes in your domain’s DNS Host, MX, Alias, or other records to Webgate, and that the number of such changes or entries shall not be unreasonable.

4.9 – If you are separately maintaining your DNS and domain registrations with a domain name registrar, you agree that Webgate has no obligation to ensure that your domain registration is maintained in a current status by the registrar or any other entity. You are solely responsible for ensuring that your domain registration is kept current and accurate and that your account with your registrar is kept current. If Webgate is acting as your agent to manage your account with your registrar, this clause will have no effect.

4.10 – In the event that your DNS hosting arrangement with Webgate is terminated, you agree that Webgate has no obligation to provide DNS files, settings, or any other material related to your DNS entries in Webgate’s DNS system to you or any third party, and you agree that Webgate has no obligation to forward DNS requests to or from your new DNS host.

4.11 – If you are purchasing Webgate’s spam and anti-virus filter for your e-mail, you acknowledge that the Internet is an inherently insecure environment and that any computer or other equipment you attach directly or indirectly to the internet may become the target of computer hackers and is susceptible to attacks from viruses or the like. You are solely responsible for keeping your machines secure and free of viruses or other harmful programs that can directly or indirectly interfere with the operations of Webgate’s sites and services, and that of third parties connected to its networks. You are solely responsible for guarding against and repairing your computers and other systems from any infection by malicious code or unauthorized use.

4.12 – You agree not to resell any Webgate site or service to any third party without first entering into a Reseller Agreement with Webgate.

4.13 – You agree to pay when due for the valid charges for our services and agree that such timely payment is an essential condition for Webgate’s service(s). Webgate will not pay interest on deposits unless required by law to do so. Faxed copies of signatures shall be as legally binding as original signatures. Any over billing errors must be reported to Webgate within 90 days of the error, and adjustments or refunds for errors over 90 days will not be made. Webgate reserves the right to bill you for any item that has not been billed to you and should have been.

5.0 Termination for Cause

5.1 – Either party may terminate this Agreement for cause without penalty in the event that the other party breaches any material term of this Agreement. Prior to such termination, the party intending to terminate shall first give the other party written notice of its intent to terminate which shall clearly describe the problem(s) constituting cause. Other than as otherwise stated herein, the other party will have 30 days from the date of receipt of such notice to correct the problem. If the problem is not corrected within such period, the party intending to terminate may terminate this Agreement at the end of such 30th day without penalty.

5.2 – Webgate services may be used only for lawful purposes. Use of Webgate’s services in violation of any applicable law or regulation is prohibited. This includes, but not limited to transmitting data (A) which is threatening, pornographic, obscene or defamatory, (B) which belongs to a third party and is protected by copyright, trade secrets, patent or other intellectual property laws, or (C) which violates export control laws. Any access to other networks connected to Webgate must comply with the rules appropriate for the other networks. Customer agrees to indemnify and hold harmless Webgate from any claims resulting from Customer’s use of the service or the use of the service by any of Customer’s clients or users which damages Webgate or another party. If Customer violates Webgate’s acceptable use policy, or permit such violation, Webgate shall notify Customer of such violation and if Customer does not remedy such violation within three days of Customer’s receipt of such notice, Webgate may terminate this Agreement without penalty.

5.3 – You agree not to transmit or knowingly permit to be transmitted via any system you control or should control, to or across any site or service operated by Webgate, any content consisting of unsolicited bulk commercial e-mail or excessive amounts of commercial Usenet postings (SPAM). Webgate enforces a policy of NO TOLERANCE with respect to SPAM and abusive e-mail, and Webgate may suspend an account without notice if it believes Customer’s equipment has been used to send SPAM.

5.4 – If you compromise any Webgate network services or violate Webgate’s Acceptable Use Policy, your access and hosting via Webgate may be discontinued. You acknowledge Webgate’s right to take all available legal and technical steps, including remotely scanning your ports, to prevent fraudulent or counterfeit e-mail from entering or utilizing the Webgate system.

5.5 – Webgate will not host sites containing pornographic material on its servers.

5.6 – If any amounts due and owing by Customer remain unpaid 35 days after date of invoice, Webgate may immediately terminate this Agreement and suspend all accounts without sending and further written notice.

6.0 Limitations on Liability

6.1 – Webgate has the right, but not the obligation, to monitor any activity and content associated with its hosted web sites or services. Webgate may investigate any complaint or reported violation of its policies and take any action it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on a hosted web site.

6.2 – Webgate also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental request, to protect Webgate’s systems and customers, or to ensure the integrity and operation of Webgate’s business and systems, Webgate may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history and posted content.

6.3 – Webgate provides its web site and services “as is” and without any warranty or condition, express, implied or statutory. Webgate further specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement for the services as provided. Webgate further disclaims any express or implied warranties that it’s services will meet your requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error.

6.4 – In no event shall Webgate be liable for any lost profits or any special, incidental, consequential, or punitive damages arising out of, relating to, or in connection with, directly or indirectly, or intentionally or negligently, the use of Webgate’s services or facilities.

6.5 – Webgate’s liability to you or any third party in any circumstance is limited to the lesser of (A) the amount of fees customer paid to Webgate in the twelve month period directly prior to the action giving rise to alleged liability, or (B) $200.

6.6 – In the event that a customer provides a payment and Webgate has started setup, research, programming, or have created templates for the customer’s approval for their web design, the payment is then non-refundable. In the event that a customer provides a full or partial payment, but does not provide content to Webgate within 20 business days, the payment is then non-refundable, even if the customer chooses to cancel the contract for any reason.

7.0 Assignment

This Agreement shall not be assigned without the prior written consent of Webgate, which consent shall not be unreasonably withheld. The assignee shall have agreed to comply with and be bound by the terms of this Agreement and the assignor shall remain liable under this Agreement not withstanding such assignment. Webgate reserves the right to change or modify these Terms and Conditions without notice.