SCHEDULE A – TERMS OF SERVICE
1. The Customer is of the opinion that the Service Provider has the necessary qualifications, experience and abilities to provide services to the Customer.
2. The Service Provider is agreeable to providing such services to the Customer, on the terms and conditions as set out in this Agreement.
IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:
The Customer hereby agrees to engage the Service Provider to provide the Customer with services consisting of web designing, web developing, web promoting and maintaining the Customer’s web site(s), and technical support according to the service plan chosen by the Customer, and such other services as the Customer and the Service Provider may agree upon from time to time (the “Services”), and the Service Provider hereby agrees to provide the Services to the Customer.
2.1 Subject to these Terms of Service and during the term of this Agreement, the Service Provider agrees to provide the Services the customer selects during the Sign-up Process.
3. FEES AND PAYMENT TERMS
3.1 The Service Provider may charge set up fees, recurring service fees, and other one-time fees for optional services and, if requested by you, fees for domain name registration services and hosting (collectively “Service Fees”). Unless otherwise specified in any written offer or promotion, the Service Fees published on the Service Provider’s website for the particular brand of Service you ordered are applicable to all transactions between you and the Service Provider.
3.2 All Service Fees are due according to the schedule published on the Service Provider’s website for the particular brand of Services you ordered or, if not published, on the first day of the billing cycle. All Service Fees and other monetary payments must be made in Canadian Dollars. If you are not billed by invoice, you authorize the Service Provider to charge the credit card, debit card or bank account (whether via ACH service or otherwise) (your “Payment Process”) that you provide to the Service Provider for payment of the Service Fees for Services you order before the Service Provider activates the Services. You further authorize the Service Provider to charge you according to your Payment Process for the amount of all subsequent periodic Service Fees (at the Service Provider’s then-current rates) prior to the commencement of any renewal period for such Services as described in Section 4 of this Agreement and for the amount of all other fees and charges (at the Service Provider’s then-current rates) as they become payable pursuant to this Agreement. Services Fees and all other fees and charges that become due during any renewal period will be charged according to your previous payment option and/or Payment Process. All Payment Process payments are deemed authorized by you and will be assessed in real time.
3.3 If the Service Provider does not receive payment from your Payment Processor (i.e., credit or debit card issuer or other financial institution), you agree to pay the Service Provider all amounts due upon demand. The Service Provider may charge you for a late payment fee equal to one and one-half percent (1.5%) on any overdue balance, or the maximum amount allowed by law if less, for each month or fraction of a month the overdue amount remains unpaid. The Service Provider may also charge you for an administrative fee for any returned checks or if your Payment Processor declines payment. You agree to pay the Service Provider’s collection costs, including reasonable attorneys’ fees, if the Service Provider is required to take action to collect any amounts that you fail to pay when due pursuant to this Agreement.
3.4 The Service Provider may, in its sole and exclusive discretion, immediately suspend or terminate your Services with a 30 day notice to you if you fail to provide valid Payment Processor information or authorization or fail to pay for any Services when due. The Service Provider may charge a Fifty Dollar ($50.00) fee to reinstate any Service that has been suspended or terminated.
4. TERM AND TERMINATION
4.1 the Agreement will continue for the term stated in during the Sign-up Process or, if no term is stated, on a month-to-month basis. The Agreement will automatically renew for successive terms, each equal in length to that of the initial term. Either party may terminate this Agreement effective at the end of the then current term, whether annual, month-to-month or some other fixed term, upon at least thirty (30) days notice prior to the end of the then current term and such termination will be effective upon expiration on the last day of the then current term. The termination of this Agreement will constitute the termination of all of your Services.
4.2 If you breach any term of this Agreement including, but not limited to, Section 3 (Fees and Payment Terms) and Section 5 (Restrictions on Use), the Service Provider may, in its sole and exclusive discretion, suspend or terminate your Services after 60 days if the bridge has not been rectified. Service Fees may continue to accrue on suspended accounts and you will continue to remain responsible for the payment of any Service Fees that accrue during the period of suspension.
4.3 IF THIS AGREEMENT IS TERMINATED FOR ANY REASON PRIOR TO THE EXPIRATION OF THE INITIAL TERM, THE SERVICE PROVIDER WILL NOT PROVIDE ANY REFUND OR CREDIT TO YOU FOR ANY SERVICE FEES THAT YOU PAID IN ADVANCE, BY CREDIT CARD OR OTHERWISE, AND THE SERVICE PROVIDER WILL HAVE THE RIGHT TO CHARGE YOU FOR AN ACCOUNT ADMISTRATION FEE OF TWENTY DOLLARS ($20.00) WHICH FEE WILL NOT BE OFFSET BY ANY PRE-PAID AMOUNTS. You authorize the Service Provider, in its sole and exclusive discretion, to charge your Payment Process or forward an invoice to you immediately upon the termination of this Agreement for the amount of any Service Fees that are then outstanding.
5. WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY
YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4 ARE REASONABLE AND ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT BETWEEN YOU AND THE SERVICE PROVIDER. YOU ACKNOWLEDGE THAT THE SERVICE PROVIDER WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMIC BASIS WITHOUT SUCH DISCLAIMERS AND LIMITATIONS.
5.1 THE SERVICE PROVIDER PROVIDES THE SERVICES AND THE LICENSED MATERIAL (AS DEFINED IN SECTION 7.2 BELOW) TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SERVICE PROVIDER MAKES NO EXPRESS WARRANTIES OF ANY KIND AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT REGARDING ANY SERVICES OR ANY EQUIPMENT THAT THE SERVICE PROVIDER MAY PROVIDE TO YOU OR REGARDING THE LICENSED MATERIAL. THE SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES, THE LICENSED MATERIAL OR THE USE OF EITHER WILL BE WITHOUT INTERRUPTION, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.THE SERVICE PROVIDER MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE LICENSED MATERIAL OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES, THE LICENSED MATERIAL OR THE INTERNET. THE SERVICE PROVIDER IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY THE SERVICE PROVIDER. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY THE SERVICE PROVIDER, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AFFILLIATES OR CONTRACTORS WILL CREATE A WARRANTY, EXPRESS OR IMPLIED, NOR MAY YOU RELY ON ANY SUCH ADVICE OR INFORMATION. SOME STATES (UNITED STATES ONLY) DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. CONSEQUENTLY, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU TO THAT LIMITED EXTENT. YOU AGREE THAT, IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, THE LICENSED MATERIAL OR ANY EQUIPMENT THAT THE SERVICE PROVIDER MAY PROVIDE TO YOU, ALL SUCH WARRANTIES WILL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE THE SERVICE COMMENCED OR THE LICENSED MATERIAL IS INSTALLED.
5.2 YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE SERVICE PROVIDER AND ITS SUBSIDIARIES AND AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, COSTS AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES, RELATED TO OR ARISING FROM: (I) YOUR AND YOUR END USERS’ USE OF THE SERVICES AND/OR THE LICENSED MATERIAL PROVIDED BY YOU; (II) ANY LIABILITIES, CLAIMS, OR EXPENSES ARISING FROM YOUR REGISTRATION, ATTEMPT TO REGISTER, MAINTENANCE, INFRINGEMENT, OR PROTECTION OF A DOMAIN NAME AND THE RIGHTS ASSOCIATED WITH SUCH, (III) ANY BREACH BY YOU ANY PROVISION OF THIS AGREEMENT; AND/OR (IV) ANY ACTS OR OMISSIONS BY YOU.
5.3 Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. The Service Provider has no control over information contained on the Internet and accepts no responsibility for any information that you may receive via the Internet.
5.4 You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Services or obtain from the Internet.
5.5 You agree that if the Service Provider takes any corrective action under this Agreement in response to your or your end users’ actions or failures to act, that corrective action may adversely affect you or your end users and you agree that the Service Provider shall have no liability to you or your end users due to any corrective action taken by the Service Provider.
5.6 The Service Provider strongly encourages you to back-up your data regularly. The Service Provider will backup any data related to your website on a monthly basis. The backup can be provided to the Customer at any time by Customer’s request.
5.7 The server the Service Provider provides for your dedicated hosting services is accessible only to you and is dedicated solely to your use. However, you acknowledge that the Service Provider often re-uses and/or recommissions its dedicated servers to accommodate changing client demands. While the Service Provider follows standard hard drive data cleansing procedures, you acknowledge that the server used to provide your dedicated hosting services may have been used to provide such services to other the Service Provider clients in the past, and may be used to provide such services to other the Service Provider clients in the future. Because of this, data or meta-data shadows may physically remain on the drive even after cleaning it, although the data cannot be accessed without performing extraordinary procedures, if at all. While unlikely, the Service Provider cannot completely ensure that your deleted data will not be accessible to future the Service Provider dedicated hosting customers who will use your server for dedicated hosting services. You agree to never recover or reconstruct, or attempt to recover or reconstruct, any data previously saved on any hard drive provided for your dedicated hosting services. You will be solely responsible for any damages or losses to the Service Provider, and will indemnify the Service Provider for any third party losses, resulting from a violation of this paragraph.
5.8 YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES TO HOLD THE SERVICE PROVIDER OR ITS LICENSORS LIABLE FOR ANY INDIRECT AND/OR CONSEQUENTIAL DAMAGES.
5.9 Warranty of Title. Service Provider represents and warrants that he has obtained all required registrations, permissions and consents from all third parties necessary to deliver the Web Site, Background Technology and Deliverables. Service Provider shall not grant any rights or licenses to any intellectual property or technology that would conflict with his obligations or Service Provider’s rights under this Agreement.
5.10 Warranty Against Disablement. Service Provider expressly represents and warrants that no portion of the Web Site contains or will contain any protection feature designed to prevent its use. This includes, without limitation, any computer virus, worm, software lock, drop dead device, Trojan-horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable the Web Site or computer system.
5.11 Warranty Against Intellectual Property Infringement. Service Provider represents and warrants that the Web Site and Deliverables shall not infringe on the trademark, copyright, patent, trade secrets or any other rights of any third party. To the extent the Web Site or the Deliverables infringe upon the rights of any third party, Service Provider shall obtain a license or consent from such third party permitting the use of the Web Site and Deliverables.
5.12 Indemnification Against Liability for Infringement. Service Provider shall indemnify Customer and any of its officers, directors, employees or agents against all claims, liabilities, costs, damages, fees and expenses (including reasonable attorney fees) arising from any breach or alleged breach of warranty under this Agreement or any claim or suit alleging infringement by the Web Site, Background Technology or Deliverables of any patent, copyright, trade secret or trademark rights or any other rights of any third party. Customer shall promptly notify Service Provider in writing of any third party claim or suit and Service Provider shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Customer may participate at its own expense in the defense of any such action at its sole discretion.
5.13 The terms of this Section 5 shall survive any termination of this Agreement.
6. RESTRICTIONS ON USE
6.1 The Service Provider does not intend to systematically monitor the content that is submitted, stored, distributed or disseminated by you via the Services (the “Your Content”). Your Content includes content of your end users and/or users of your website. Accordingly, you are responsible for your end users’ content and all activities on your website. The Service Provider, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, removal of all or a portion of Your Content and suspension and/or termination of your Services, in the event of notice of any possible violation of the Service Agreement by you or your end users. You agree that the Service Provider will have no liability to you or any of your end users due to any corrective action that the Service Provider may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
6.2 You warrant that Your Content does not violate or infringe any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.
6.3 Your use of networks or computing resources provided to the Service Provider by third party providers and made available to you as part of the Services is subject to the respective permission and usage policies of such third parties.
6.4 You expressly (i) grant to the Service Provider a license to back up and store the entirety of Your Content and your web site, including content supplied by third parties, hosted by the Service Provider under this Agreement, and (ii) agree that the backup and storage is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
6.5 If the Service Provider assigns to you an Internet Protocol address for your use, you may use that Internet Protocol address only as expressly permitted by the Service Provider in connection with your use of the Services during the term of this Agreement. The Service Provider will maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to you by the Service Provider. The Service Provider reserves the right, in its sole and exclusive discretion, to change or remove any and all such Internet Protocol numbers and addresses.
7. TRADEMARKS, PROPRIETARY RIGHTS AND PRODUCT RIGHTS
7.1 The Service Provider and other pending and/or registered trademarks and service marks, and other graphics, logos, and service names used by the Service Provider in connection with the Services or other products or services offered by the Service Provider and its subsidiaries and affiliates, to identify the products or Services of the Service Provider or its subsidiaries and affiliates (collectively the “the Service Provider Trademarks”) are the trademarks of the Service Provider and its subsidiaries and affiliates. You agree not to use the Service Provider Trademarks in connection with your products or services, or any third-party’s products or services, or in any manner that disparages or discredits the Service Provider. All other brands and names (including third-party product names) used in connection with the Services or other products or services offered by the Service Provider and its subsidiaries and affiliates are the property of their respective owners.
7.2 The Service Provider acknowledges that it claims no proprietary rights in Your Content or any intellectual property right contained therein. You acknowledge and agree that the Service Provider and its licensors own all right, title, and interest in: (a) the Services and any other products or services offered by the Service Provider and its subsidiaries and affiliates; (b) the technology available to you as part of the Services; (c) and all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material contained or maintained on the websites maintained by the Service Provider and its subsidiaries and affiliates (collectively “the Service Provider Content”), excluding Your Content.
7.3 Service Provider hereby acknowledges that the Deliverables and any other documentation, materials or intellectual property hereunder (collectively, the “Work Product”) provided by the Customer are works which have been specially commissioned by Customer and are “work made for hire” for Customer and Customer shall own all right, title, and interest therein. Customer shall be considered the author of the Work Product for purposes of copyright and shall own all the rights in and to the copyright of the Work Product and, as between Customer and Service Provider, only Customer shall have the right to obtain a copyright registration on the same which Customer may do in its name, its trade name or the name of its nominee(s). To the extent Service Provider does not own such Work Product as a work made for hire, Service Provider hereby assigns, transfers, releases and conveys to Customer all rights, title and interest to such Work Product, including but not limited to all other patent rights, copyrights, and trade secret rights.
8.1 This Section 8 (the “License”) applies to you only if you use software licensed to you in connection with the Services and is in addition to and not in lieu of all other Terms of Service that govern your Services.
8.2 In connection with the Services, the Service Provider may make available to you the Service Provider Content, certain technology and software owned by the Service Provider or third parties (which may include corresponding documentation, associated software components, media, printed materials, and “online” and electronic documentation and all updates and upgrades thereto) (the “Licensed Material”). You agree that the Licensed Material is the exclusive property of the Service Provider and its licensors and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
8.3 You may not remove or alter any copyright notices on any copies of the Licensed Material. You may not make or distribute copies of the Licensed Material to third parties or electronically transfer the Licensed Material from one computer to another or over a network. You may not alter, merge, modify, adapt or translate the Licensed Material, or reverse engineer, decompile, or disassemble the Licensed Material, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not modify the Licensed Material or create derivative works based upon the Licensed Material. You may not sell, rent, lease, lend, assign, transfer or sublicense the Licensed Material. You must comply with all applicable laws regarding use of the Licensed Material.
8.4 Without prejudice to any other rights, the Service Provider may, in its sole and exclusive discretion, terminate this License if you fail to comply with the terms and conditions of this License. In such event, you must destroy all copies of the Licensed Material. All other rights of both parties and all other provisions of this License will survive any termination.
8.5 The foregoing license gives you limited license to use the Licensed Material. The Service Provider and its licensors retain all right, title and interest, including, but not limited to, copyright and intellectual property rights, in and to the Licensed Material and any copies thereof. All title and intellectual property rights in and to the content that may be accessed through use of the Licensed Material are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This License grants you no rights to use such content. The Service Provider and its licensors reserve all rights not expressly granted.
8.6 The Licensed Material is provided with “RESTRICTED RIGHTS” applicable to private and public licensees alike.
8.7 You agree that you will not export or re-export the Licensed Material to any country, person, entity or end user prohibited by the Export and Import Permits Act and the regulations promulgated thereunder. You represent and warrant that neither the Export and Import Controls Bureau (EICB) nor any other federal agency has suspended, revoked or denied your export privileges.
8.8 The Licensed Material may contain third party software that require notices and/or additional terms and conditions. All required third party software notices and/or terms and conditions are made a part of and incorporated by reference into this License. By accepting this License, you are also accepting the additional terms and conditions, if any, set forth therein.
It is your responsibility to provide accurate and complete account and contact information, including a valid e-mail address, to the Service Provider during the Sign-up Process. It is also your responsibility to inform the Service Provider promptly of any changes to your account or contact information. The Service Provider has no responsibility for communications that are misdirected as a result of your failure to provide the Service Provider with updated contact information or as a result of the suspension or termination of your Services.
The Service Provider may provide notice to you required by this Agreement via e-mail at the address provided by you. You agree that notice to you at this address is deemed sufficient regardless of your receipt of such email. You must provide all notices to the Service Provider required in writing to:
OLIB Enterprises Inc. 132 Greensboro Drive, Markham, ON L3R 0V9, or as changed by the Service Provider via its on-line amendment of this Agreement.
10.2 The Service Provider will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquakes, hurricanes, tropical storms and depressions, inclement weather, labor disputes and strikes, riots, war and governmental requirements, provided the Service Provider has not contributed to such cause.
10.3 This Agreement shall be interpreted under the laws of the Province of Ontario without regard to any conflict of laws provisions. You hereby consent to the exclusive jurisdiction and venue of the provincial courts sitting in Toronto, Ontario or the federal courts in the Province of Ontario to resolve any disputes arising under this Agreement.
10.4 If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with all other provisions of this Agreement remaining in full force and effect.
10.5 The Service Provider’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Service Provider in writing.
10.7 This Agreement and your rights hereunder may not be assigned or transferred to any third party. The Service Provider reserves the right to assign this Agreement to any of its subsidiaries or affiliates or to any third party that acquires all or substantially all of its relevant business or assets.
10.8 You represent and warrant that, if you are an individual, you are at least 18 years of age, that you have read this Agreement and that you agree to be bound by the terms and conditions of the Agreement. You acknowledge and agree that the Service Provider can and will rely on all representations, warranties, covenants and agreements that you make herein.
10.9 For purposes of this Agreement, the term “Confidential Information” means all information that is not generally known by the public and that: (i) is obtained by Service Provider from Customer, or that is learned, discovered, developed, conceived, originated, or prepared by Service Provider during the process of performing this Agreement, and (ii) relates directly to the business or assets of Customer. The term “Confidential Information” shall include, but shall not be limited to: inventions, discoveries, trade secrets, and know-how; computer software code, designs, routines, algorithms, and structures; product information; research and development information; lists of clients and other information relating thereto; financial data and information; business plans and processes; and any other information of Customer that Customer informs Service Provider, or that Service Provider should know by virtue of its position, is to be kept confidential.
10.10 During the term of this Agreement, and at all times thereafter, Service Provider agrees that he will not disclose to others, use for his own benefit or for the benefit of anyone other than Customer, or otherwise appropriate or copy, any Confidential Information, whether or not developed by Service Provider, except as required in the performance of its obligations to Customer hereunder.
10.11 Effective date: this policy was last updated on Sep 3, 2015.