This is a contract between you ("you" or "your") and Windstream. It states the terms and conditions which apply to your purchase and use, in any manner, of the Windstream web hosting, e-mail and domain services (collectively, the "Services").
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, ANY APPLICABLE DOMAIN NAME REGISTRATION AGREEMENTS AND ALL POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO. YOU ARE SOLELY RESPONSIBLE FOR USE OF THE SERVICES BY ANY OF YOUR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND ANY OTHER END USER OF THE SERVICES (COLLECTIVELY, THE "END-USERS"). YOU AGREE TO ENSURE THAT, END-USERS COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, ANY APPLICABLE DOMAIN NAME REGISTRATION AGREEMENTS AND ALL POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO. Windstream reserves the right to change or modify this Agreement, and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to customers. Any changes or modification will be posted by Windstream, and become effective upon posting of the revisions on the Site. Windstream will post a notice of such changes or modifications on the Site for thirty (30) days. You are responsible for regularly reviewing the Site to obtain timely notice of such changes or modifications. Your continued use of the Services following Windstream's posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY PROVIDE NOTICE OF TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 1.1 BELOW.
1.1 Term and Termination. The Services are provided on a fixed term basis and shall be provided, unless Windstream receives additional payment from you, until the last day of the fixed term ("Termination Date"). Either party may at any time terminate this Agreement, prior to the Termination Date, provided that Windstream will provide the Services until the Termination Date.
Notice of Termination. You must provide Windstream with notice of termination in writing by e-mail (from the email account specified by you when first ordering the Services). Any notice of termination will be effective thirty (30) days following Windstream's receipt thereof.
1.2 Liability and Obligations on Termination. Should the Agreement expire or be terminated for any reason, Windstream will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of profits or sales (anticipated or actual), goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date. Windstream shall not be obligated to notify any third party of the termination of your account or provide any termination assistance. Without limiting the generality of the foregoing, Windstream shall have no obligation to forward any email messages, data, information or other content related to your use of the Services, and you acknowledge that all such email messages, data, information and content may be immediately deleted by Windstream.
1.3 Charges. You agree to pay all fees and charges (and applicable taxes) incurred which relate to your use of the Services, in accordance with the rates, terms and conditions established from time to time by Windstream. Such rates, terms and conditions will be posted on the Site or otherwise made available to you by Windstream. Windstream shall begin charging you on the date that you subscribe for the Services, unless otherwise specified by Windstream.
1.4 Payment. All charges for the Services must be paid in advance according to the then current price applicable to the Services. Windstream reserves the right to modify the forms of payment it will accept, at any time, in its sole discretion.
1.5 Credit Card Payment. If you pay for the Services by credit card, you expressly authorize Windstream or its agents to charge all fees and charges incurred by you under this Agreement to such credit card, and such authorization will survive termination of this Agreement until there are no charges owing by you under this Agreement. If you use a credit card and Windstream does not receive payment from the card issuer, you agree to pay all amounts due, upon demand by Windstream. You must notify Windstream of any changes to your credit card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Windstream from charging your account.
1.6 Failure to Pay. Your failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, justifying Windstream's immediate suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstating the Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, legal fees, court costs and collection agency fees.
2.1 Responsibility for Use. You are responsible for use of the Services and the maintenance of all passwords related to the Services. You are solely responsible and liable for any and all activities that occur in respect of your use of the Services, including without limitation all activities of any users authorized by you or using your passwords. You are also responsible for maintaining the confidentiality of all passwords related to your use of the Services. You agree to immediately notify Windstream of any unauthorized use of the Services or your passwords or of any other breach of security and to provide assistance to Windstream, as requested, to stop, prevent or remedy any breach of security.
2.2 Applicable Policies and Agreements. The Windstream Acceptable Use Policy (appended to the end of this document) governs the general policies and procedures for use of the Services. This policy may be updated or amended from time-to-time.
2.3 Material and Product Requirements. You must ensure that all material and data placed on Windstream's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Windstream. Windstream will make no effort to validate any of this information for content, correctness or usability. In the event that your material is not "server-ready", Windstream has the option at any time to reject this material. Windstream will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Windstream. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your web site. You must have the necessary knowledge to create and maintain a web site. It is not Windstream's responsibility to provide this knowledge or customer support.
2.4 Bandwidth, Storage, and E-Mail Use. You agree that use of the Services hereunder will not exceed the bandwidth, storage and E-mail usage limits set out in the Site for the Services ordered by you. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, Windstream may, in its sole discretion, assess you with additional charges according to Windstream's then current pricing policy, suspend the performance of the Services, or terminate this Agreement. In the event that Windstream elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees. Warning messages will be emailed to you as you exceed 80% and 90% of your package's respective bandwidth and disk space limits. If payment for extra usage is not received within two weeks of the invoice date, the expiry date of the account will be adjusted according to the amount outstanding.
2.5 Domain Names. As part of the Services, you will provide Windstream with a registered domain name or names or Windstream will register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any registrar’s policies, or any law or regulation. You agree to promptly reimburse Windstream for any fees paid by Windstream to any registrar with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Services, upon your request Windstream will attempt to register with the registrar an alternative domain name chosen by you. You agree to be bound by the terms the registrar’s then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of a domain name. The inability to use a domain name shall not entitle you to a refund by Windstream of any fees paid with respect to the registration of such unusable domain name. There is no charge for indefinite parking of domains on Windstream servers or to transfer to another service provider. However, in the event a domain that was registered by Windstream is transferred to another service provider, and requires manual intervention by Windstream support staff to complete the transfer, there will be an administrative transfer cost charged for each domain plus applicable taxes. Domain Parking does NOT include any hosting services. You may not submit your own DNS entries because Windstream is NOT a Registrar and hosting services for domain names residing on the Windstream system must be provided by Windstream. Domain name payments are non-refundable. Once a domain name is registered, the WHOIS database stores the information and is kept there for a period of one year, until the date of renewal. Payment with respect to domain names will NOT be refunded or credited to your credit card. You are responsible for spelling a domain name correctly while registering it online. Windstream will not provide refunds or credits for misspelled domain names.
2.6 Miscellaneous Components. You acknowledge that the Services do not include, without limitation, content design, development, FTP master maintenance, uploading and publishing, Common Gateway Interface scripts and other such executables and that all of the foregoing are your responsibility. You may not compile or install binary files other than the ones provided by Windstream. Windstream does not make C compilers available and the PERL binaries provided will not have networking support (for example, socket ph, ftp.pl, etc.) You may use ftp to access your home directory for the purpose of installing and editing your web pages.
3.1 Windstream Property. You hereby acknowledge and agree that all programs (in object code and source code form), data, services, processes, designs, technologies, materials and all other things comprising the Services are owned by and shall remain the sole property of Windstream, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws. Windstream shall also maintain and control ownership of all Internet protocol ("IP") numbers and email addresses that may be assigned to you by Windstream. Windstream reserves, in its sole discretion, the right to change or remove any and all such IP numbers and email addresses at any time.
3.2 Your Content. Windstream does not claim ownership of information, materials, software or other content (collectively, the "Content") that you post, upload, input, provide, submit or otherwise transmit to Windstream or any third party, using the Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to Windstream or any third party, using the Services, you have thereby granted Windstream a royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such content to the extent reasonably required by Windstream for the purposes of rendering and operating the Services to you under this Agreement or to ensure adherence to or enforce the terms of this Agreement You expressly (a) grant to Windstream a license to cache the Content, and (b) agree that such caching is not an infringement of any of your rights or any third party's rights.
4.1 Investigation of Violations. Windstream may investigate any reported violation of this Agreement, its policies and guidelines or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its interests, including without limitation, its systems, servers, facilities, customers and/or third parties. Windstream will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
4.2 Actions. Windstream reserves the right in its sole and absolute discretion to restrict or remove from its servers any content that it deems to be in violation of this Agreement, its policies or guidelines, third-party intellectual property rights or any laws. Windstream may immediately take action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Services, (c) restricting or prohibiting any and all uses of content hosted on Windstream's systems, and/or (d) disabling or removing: (i) any hypertext links to third-party web sites, (ii) any of your content distributed or made available for distribution via the Services, or (iii) other content not supplied by Windstream. It is Windstream's policy to terminate Services to infringers. The above stated rights of action, however, do not obligate Windstream to monitor or exert editorial control over the information made available for distribution via the Services and you acknowledge that Windstream has no obligation to censor or monitor use of the Services by you, or any obligation to censor or monitor any content, material or other information sent, received or accessible through the Services. In the event Windstream takes action due to such possible violation, Windstream shall not be obligated to refund to you any fees paid in advance of such action.
4.3 Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect Windstream's systems and customers, or to ensure the integrity and operation of Windstream's business and systems, Windstream may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information(i.e., name, e-mail address, etc.), IP address and traffic information, usage history, and content residing on Windstream's servers and systems. Windstream also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of Windstream's Privacy Policy and Windstream's right to disclose under this section, Windstream's right to disclose under this section will prevail.
5.1 Your Warranties and Representations to Windstream. You warrant, represent, and covenant to Windstream that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for use of the Services; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party web sites; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your Content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
5.2 Warranty and Disclaimer. THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.Windstream DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Although Windstream will use commercially reasonable measures to maintain the security of the Services, Windstream assumes no responsibility for the effectiveness of these security measures provided by Windstream.
5.3 Windstream will create custom social media tabs for your social media site. We are not responsible for (a) reminding you to keep up-to-date information displayed on your social media pages, (b) monitoring, managing or responding to commentary on your social media page (unless otherwise agreed), or (c) making sure that all content you provide for inclusion on your social media page is non-infringing and owned by you or authorized to be used by you. By posting content on your social media page, you are allowing others to view and share Your Content.
NOTE: Upon termination or cancellation of the Services only the custom social media tabs we create for you will be deleted and are not recoverable; your basic business social media account, e.g. Facebook and any of Your Content posted there remains intact.
6.1 Exclusion of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL Windstream, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUPPLIERS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, THE "Windstream ENTITIES" AND EACH, A "Windstream ENTITY") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, OPPORTUNITY, EARNINGS, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF THE Windstream ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO DELAYS, ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, VIRUSES OR DEFECTS IN THE TRANSMISSION OF ANY INFORMATION, MATERIAL OR DATA OVER OR THROUGH Windstream's SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES.
6.2 Limitation of Liability. CIRCUMSTANCES MAY ARISE IN WHICH YOU ARE ENTITLED TO RECOVER DAMAGES FROM ONE OR MORE OF THE Windstream ENTITIES. IN SUCH INSTANCE, THE AGGREGATE LIABILITY OF THE Windstream ENTITIES FOR DAMAGES IS LIMITED TO THE LESSER OF (A) THE AMOUNT ACTUALLY PAID TO Windstream BY YOU UNDER THIS AGREEMENT DURING THE ONE (1) MONTH IMMEDIATELYPRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED OR (B) THE SUM OF ONE HUNDRED (US$100.00) US DOLLARS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUTLIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY Windstream HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE THE Windstream ENTITIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS PARAGRAPH.
6.3 Interruption of Service. You hereby acknowledge and agree that Windstream and its suppliers will NOT be liable for any delay, outages or interruptions of the Services. Further, Windstream shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electrical electronic, communications or third-party supplier failure).
7.1 Indemnity to Windstream. You hereby release and hold harmless, and agree to indemnify, the Windstream Entities against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by the WindstreamEntities, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).
7.2 Third Party Beneficiaries. You are hereby notified that the Windstream Entities are intended third-party beneficiaries of this Agreement, with a right of enforcement of the exclusions and limitations of liability and the indemnities contained in this Agreement.
8.1 Entire Agreement. This Agreement, including any domain registration agreements, documents, web sites, rules, terms, policies and guidelines referenced herein, constitutes the entire agreement between Windstream and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between Windstream and you with respect to such matters.
8.2 No Waiver. The failure of Windstream to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and Windstream nor trade practice shall act to modify any provision of this Agreement.
8.3 Severability. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of you and Windstream,and the remainder of this Agreement shall remain in full force and effect.
8.4 Choice of Laws. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario without reference to rules governing choice of laws and the federal laws of Canada applicable therein. You hereby irrevocably consent to the exclusive jurisdiction of the courts of the Province of Ontario and the federal courts situated in the Province of Ontario in connection with any matter arising under this Agreement. Use of the Services in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph, is prohibited.
8.5 Successor Sites. All references to Windstream web site addresses in this Agreement shall also include any successor or replacement web sites containing substantially similar information as the referenced web site(s).
8.6 Assignment. Windstream may at any time assign its rights and obligations under this Agreement, in whole or in part, without notice to you. You may not assign this Agreement.
8.7 Enurement. This Agreement will ensure to the benefit of and bind you and Windstream and its respective personal and legal representatives, successors and permitted assigns.
8.8 Currency. All monetary amounts expressed in this Agreement are in US dollars, unless otherwise expressly stated.
8.9 Cumulative Rights. The rights, powers and remedies of Windstream in this Agreement, including without limitation the right to suspend, restrict or terminate Services, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to Windstream at law or in equity.
8.10 Survival. Any provisions, including without limitation the disclaimers of warranty and limitations and exclusions of liability contained herein, that by their meaning are intended to survive termination of this Agreement shall survive the termination of this Agreement.
8.11 Independent Contractors. You agree that no joint venture, partnership, employment or agency relationship exists between Windstream and you as a result of this Agreement or use of the Services.
8.12 Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
8.13 Notices. Any notices or other communications sent by Windstream to you shall be deemed to have been duly given and delivered to you when delivered by email to the account specified by you when first ordering the Services
Any notices or other communications sent by you to Windstream shall be deemed to have been duly given and delivered to Windstream when delivered by email.
THIS ACCEPTABLE USE POLICY CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND Windstream ("Windstream", "WE" OR "US") a provider of retail web hosting, e-mail, electronic commerce, and domain name services ("Services").
A. ACCEPTANCE: