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ToS/AUP/PP

TopWeb Hosting Agreement (“ToS”)

This Web Hosting Agreement (this “Agreement”) is between hostbuddha and the person (individual or legal person) whose signs hostbuddha’s service order and setup form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of hostbuddha’s Web hosting service.

Table of Contents

Services
Term
Payments
Law/AUP
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension/Termination
Requests for Customer Information
Back Up Copy
Notices
Force Majeure
Miscellaneous

1. Services.

Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of hostbuddha’s credit approval requirements, hostbuddha 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 hostbuddha 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 renewal terms of the same length as the Initial Term (each a “Renewal Term”) unless hostbuddha or Customer provides the other with written notice of non-renewal at least thirty (30) 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) Guarantees.
  • Should you provide hostbuddha with a written request during your first thirty (30) days of service, you will receive a full refund of any payments made for hostbuddha’s web hosting services (domain names not included), whatever the reason;
  • Should hostbuddha’s server uptime for the month fall below 99.9%, your account will be credited for one (1) month’s cost of your current web hosting service upon request. To have your account credited accordingly, please e-mail admin@hostbuddha.com within thirty (30) days from the end of the month in which the downtime occurred. Please click here to view our server status and uptime history.
(b) Fees.

Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly or yearly as indicated on the Order, beginning on the Service Commencement Date. Hostbuddha requires payment for the first billing cycle before beginning service. Hostbuddha will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.

Payments must be made in United States or Canadian dollars. Customer is responsible for providing hostbuddha with changes to billing information (such as credit card expiration, change in billing address). Hostbuddha may suspend the service without notice if payment for the service is overdue. Customer agrees to pay hostbuddha’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.

(b) Fee Increases.

hostbuddha 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 thirty (30) 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 hostbuddha’s request Customer shall remit to hostbuddha all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on hostbuddha), regardless of whether hostbuddha 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 hostbuddha 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 hostbuddha’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 hostbuddha’s Acceptable Use Policy posted at hostbuddha’s AUP/ToS/PP page, which is hereby incorporated by reference in this Agreement. Customer agrees that hostbuddha 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 hostbuddha’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 hostbuddha’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between hostbuddha and Customer regarding the interpretation of the AUP, hostbuddha’s commercially reasonable interpretation of the AUP shall govern.

5. Customer Information.

Customer represents and warrants to hostbuddha that the information he, she or it has provided and will provide to hostbuddha for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to hostbuddha that he or she is at least 18 years of age. Hostbuddha 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 hostbuddha, hostbuddha’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.

HOSTBUDDHA DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW HOSTBUDDHA 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 HOSTBUDDHA 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/Termination.
(a) Suspension of Service.

Customer agrees that hostbuddha may suspend services to Customer without notice and without liability if: (i) hostbuddha 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) hostbuddha 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.

(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 hostbuddha fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within seven (7) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by hostbuddha prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon seven (7) 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 hostbuddha 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. Requests for Customer Information.

Customer agrees that hostbuddha 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 hostbuddha 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.

11. Back Up Copy.

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

12. Changes to hostbuddha’s Network.

Upgrades and other changes in hostbuddha’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. Hostbuddha reserves the right to change its network in its commercially reasonable discretion, and hostbuddha shall not be liable for any resulting harm to Customer.

13. Notices.

Notices to hostbuddha under the Agreement shall be given via electronic mail to the e-mail address for customer support, admin@hostbuddha.com. Notices to Customer shall 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.

14. Force Majeure.

hostbuddha shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond hostbuddha’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.

15. Governing Law/Disputes.

The Agreement shall be governed by the laws of the province of British Columbia, exclusive of its choice of law principles, and the laws of Canada, as applicable. 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 STATE AND FEDERAL COURTS IN VANCOUVER, BRITISH COLUMBIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

16. Miscellaneous.

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on hostbuddha unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without hostbuddha’s prior written consent. Hostbuddha’s approval for assignment is contingent on the assignee meeting hostbuddha’s credit approval criteria. Hostbuddha may assign the Agreement in whole or in part.

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

TopAcceptable Use Policy (“AUP”)

This AUP governs the use of hostbuddha’s web hosting service. Violation of this AUP may result in suspension or termination of your service. In the event of a dispute between you and hostbuddha regarding the interpretation of this AUP, hostbuddha’s interpretation, in its reasonable commercial judgment, shall govern. If you have any questions regarding this AUP, contact admin@hostbuddha.com.

Table of Contents

Offensive Content
Security
Bulk Commercial E-Mail
Unsolicited E-Mail
Material Protected by Copyright
Copyright Infringement Notice
Other
Disclaimer
Internet Abuse
Newsgroup, Chat Forums, Other Networks

Offensive Content

You may not publish or transmit via hostbuddha’s service any content that hostbuddha reasonably believes:

  • constitutes child pornography;
  • constitutes pornography;
  • is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
  • is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
  • is defamatory or violates a person’s privacy;
  • creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
  • improperly exposes trade secrets or other confidential or proprietary information of another person;
  • is intended to assist others in defeating technical copyright protections;
  • clearly infringes on another person’s trade or service mark, patent, or other property right;
  • promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
  • is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to hostbuddha; or
  • is otherwise malicious, fraudulent, or may result in retaliation against hostbuddha by offended viewers.

Content “published or transmitted” via hostbuddha’s service includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by hostbuddha.

Security

You must take reasonable security precautions. You must protect the confidentiality of your password, and you should change your password periodically.

Bulk Commercial E-Mail

You must obtain hostbuddha’s advance approval for any bulk commercial e-mail, which will not be given unless you are able to demonstrate all of the following to hostbuddha’s reasonable satisfaction:

  • Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
  • Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
  • You retain evidence of the recipient’s consent in a form that may be promptly produced on request, and you honor recipient’s and hostbuddha’s requests to produce consent evidence within 72 hours of receipt of the request.
  • The body of the e-mail must describe how the e-mail address was obtained, for example, “You opted in to receive this e-mail promotion from our Web site or from one of our partner sites,” and information on how to request evidence of the consent, for example, “If you would like to learn more about how we received your e-mail address please contact us at admin@yourdomain.com”.
  • You have procedures in place that allow a recipient to easily revoke their consent – such as a link in the body of the e-mail, or instructions to reply with the word “Remove” in the subject line. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours;
  • You must post an abuse@yourdomain.com e-mail address on the first page of any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
  • You must have a Privacy Policy posted for each domain associated with the mailing;
  • You have the means to track anonymous complaints;
  • You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the “TO” line of the e-mail; and
  • You otherwise comply with the CAN SPAM Act and other applicable law.

These policies apply to messages sent using your hostbuddha service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via your hostbuddha service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers.

hostbuddha may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time.

Unsolicited E-Mail

You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it.

You must comply with the rules of any other network you access or participate in using your hostbuddha’s services.

Material Protected by Copyright

You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:

  • you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
  • you are otherwise permitted by established United States copyright law to copy the work in that manner.

hostbuddha will terminate the service of repeat copyright infringers.

Copyright Infringement Notice (Digital Millennium Copyright Act)

If you believe your copyright is being infringed by a person using the hostbuddha network, please send your written notice of copyright infringement to:

1225 Rue Mackay, Unit 1, Montreal, Quebec, H3G 2H5, Canada.

Your notice must include the following:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted words at a single site are covered by a single notification, a representative list of such works at that site;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit hostbuddha to locate the material;
  • Information reasonably sufficient to permit hostbuddha to contact you, such as an address, telephone number, and, if available, an e-mail address;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner’s agent, or the law;
  • A statement that the information in the notification is accurate, and under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Other

You must have valid and current information on file with your domain name registrar for any domain hosted on the hostbuddha network.

Disclaimer

hostbuddha is under no duty, and does not by this AUP undertake a duty, to monitor or police our customers’ activities and disclaims any responsibility for any misuse of the hostbuddha network.

Inquiries regarding this policy should be directed to admin@hostbuddha.com.

Internet Abuse

You may not engage in illegal, abusive, or irresponsible behavior, including:

Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures (including those belonging to hostbuddha and its customers) without express authorization of the owner of the system or network;

monitoring data or traffic on any network or system without the authorization of the owner of the system or network;

Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;

Use of an Internet account or computer without the owner’s authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning;

Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; or

Any conduct that is likely to result in retaliation against the hostbuddha’s network.

Use of hostbuddha’s network in a way that unreasonably interferes with hostbuddha’s other customers use of the network

Newsgroup, Chat Forums, Other Networks

You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.

TopPrivacy Policy (“PP”)

This Privacy Policy describes the information we collect from you, what we do with the information, and our information security practices. If you have any questions about our Privacy Policy, please contact admin@hostbuddha.com.

Information

When you sign up for our service, we will ask you to provide contact information such as your name, address, telephone numbers, e-mail addresses, and payment information such as credit card number and expiration date.

We may ask you to complete user surveys, and to provide certain demographic information, such as age, gender, special interests, etc. You do not have to provide this type of information to use our service if you do not want to.

If you contact us for customer support, we may also ask you for information about your operating system, software and other technical matters.

When you visit our Web site we will capture your IP Address, time of and duration of visit, and time and duration of the pages on our Web site that you view. We may tie this information to the personally identifiable information we have about you.

We will also place a cookie that will identify you to us as a repeat visitor or a customer when you visit our Web site. Please see “What is a Cookie” below. We may tie this cookie to the personally identifiable information we have about you.

[If we send you an e-mail, we may include a marker that will allow to identify e-mail that is opened and viewed.]

Use of Personally Identifiable Information

We will use your personally identifiable information only as follows:

  • For payment purposes and to provide customer support;.
  • To announce special offers or provide other information from time to time via e-mail. We may also send e-mail announcing special offers by our third parties, but we will not provide the third parties with your e-mail address or other personally identifiable information. If you do not wish to receive these e-mails, you may opt out of future e-mails at any time by following the instructions included in the e-mail.
  • To improve our service and the marketing of our service. For example, we may use the information we gather from user surveys, demographic data, and web site visits to help us improve or target our Web site and customize your visit.

We will not provide any personally identifiable information about you to any other person other than:

  • a law enforcement or regulatory agency at their request;
  • a person or company who acquires our business;
  • third parties who perform services on our behalf (such as payment processing), subject to the third party agreeing with us that it will keep your personally identifiable information confidential; or
  • As otherwise needed to protect or enforce or rights or the rights of others.

We absolutely do not transfer or sell your information for inclusion on third party e-mail or other marketing lists.

Use of Non-Personally Identifiable Information

We may share aggregate statistical data about our customers with third parties, such as advertisers or suppliers. This aggregate statistical data will not identify you personally.

What is a Cookie

A “cookie” is an alphanumeric identifier that is unique to your browser. The cookie will identify your browser to us when you visit our web site so that we may customize your visit.

Children’s Privacy

Our service is not available to children under the age of 13, and we will not intentionally maintain information about anyone under the age of 13.