Hosting Agreement
This Hosting Agreement (the “Agreement”) is made and entered on the date Client subscribes to services (the “Effective Date”) by and between you (“Client”), hereby represented by client name, duly authorized as he/she so declares and New North, LLC (“New North”). Client and New North may be referred to as the “Party” or “Parties”.
WHEREAS New North is in the business of providing website 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 New North will provide hosting services with respect to the Client’s Internet website (the “Website”) 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.WEBSITE
1:1 Acceptance. Prior to accepting to provide the Hosting Services set out in section 2, New North 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 Criteria, Client may request that New North adjust the Web Site so as to conform to such Criteria, at Client’s expense.
2.WEBSITE HOSTING SERVICES
2:1 Hosting Services. Subject to Section 1.1, New North shall install and host the Web Site on its server located at servers located in the United States. New North 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, New North 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.
2:2 Access and Updates by Client. New North will provide password-protected access to its CMS (content management system)so that Client may update the Client content as needed. Client acknowledges and agrees that access to and use of the Web Site will be in accordance with any of New North’s terms of use and privacy policy as applicable.
2:3 User Information. New North agrees that all information collected by New North 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. New North 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 New North will keep a copy of the backup of its Web Site and data.
2:5 Support Requests: New North is open during normal business hours from Monday to Friday. Support requests sent over the weekend will be deemed received the next business day.
2:6 New North shall not be responsible for lost revenue that Client may incur if a website outage were to occur. New North can not guarantee when or if an outage may occur.
2:7 Emails not included in the hosting: It is understood that New North 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/her emails such as Microsoft Office 365, Google Apps, or other email providers. New North 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 New North the fees set out in “Exhibit A: Fees”.
3:2 New North shall bill Client’s credit card and send a receipt for Hosting Services described in Exhibit A.
3:3 If the current hosting plan is exceeded, then Client will be notified of any pricing adjustments necessary.
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), New North 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. New North might offer a quote to fix such problems if its programmers are available but it is the client’s responsibility to keep his/her website secure. As per section 6, Client may not claim any damages whatsoever direct or indirect if New North is forced to suspend the hosting account.
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 Termination for Convenience. Either party may terminate this Agreement upon thirty (30) days written notice to the other Party.
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 New North, 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, New North 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 New North or on its behalf to operate the Web Site.
4:6 Assistance in Transferring Hosting of Website. At Client’ expense and at New North ’s sole discretion, New North shall render transfer services to move the Client’s website to another hosting company or to New North 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 WARRANTIES, 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 NEW NORTH PURSUANT TO THIS AGREEMENT; (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 OCCURRING; OR (c ) NEW NORTH SHALL NOT BE HELD LIABLE FOR ANY DATA BREACH OR ANY DAMAGES ASSOCIATED WITH SUCH A BREACH.
7. CONFIDENTIALITY
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. GENERAL
8:1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Maryland and the federal laws of the United States applicable therein, excluding those provisions relating to conflicts of laws.
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 Entire Agreement. The Parties agree that this Agreement, including any attached Exhibits, 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 supersedes 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.
8:5 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.
8:6 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 or email addressed to the recipient as follows: New North, LLC info@newnorth.com by mail or personal delivery for the client: or to such other address as may be designated by notice given by either Party to the other.
8:7 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.
