This Web Hosting Agreement (this "Agreement") is between Hawk Host Inc.,
a web hosting company formed under the laws of the Province of Ontario
with its principal office at 710 Tower St South PO Box 50081 N1M 2R0 Canada
("Hawk Host") and the person (individual or legal person) whose signs
Hawk Host's service order and set up form (the "Order") incorporating
this Agreement by reference ("Customer"). This Agreement governs
Customer's use of Hawk Host's Web hosting service.
Table of Contents
- Customer Information
- Disclaimer of Warranties
- Limitation of Damages
- Suspension of Services/Termination
- Request for Customer Information
- Back Up Copy
- Changes To The Hawk Host Network
- IP Address Ownership
- Bandwidth Usage
- System And Network Security
- Resource Usage
- Force Majeure
- Governing Law/Disputes
- SPAM and Unsolicited Commercial Email (UCE)
- Services. Subject to the terms of this Agreement, and contingent on
Customer's satisfaction of Hawk Host's credit approval requirements,
Hawk Host agrees to provide the web hosting services described in the
Order for the fees stated in the Order.
Term. The initial service term of the Agreement shall begin on the
date that Hawk Host 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 as many successive renewal terms
of the same length as the Initial Term (each a "Renewal Term") unless
Hawk Host or Customer provides the other with written notice of
non-renewal. The Initial Term and any Renewal Term may be referred to
collectively in this Agreement as the "Term."
- Fees. Fees are payable in advance on the first day of each billing
cycle. Customer's billing cycle shall be monthly, annually bi-annually as indicated on
the Order, beginning on the
Service Commencement Date. Hawk Host may require payment for the first
billing cycle before beginning service. If the Order provides for
credit/debit card billing, Customer authorizes Hawk Host to bill
subsequent fees to the credit/debit card on or after the first day of
each successive billing cycle during the Term of this Agreement;
otherwise Hawk Host will invoice Customer via electronic mail to the
Primary Customer Contact listed on the Order. Invoiced fees may be
issued on or before the 7th day before each billing cycle, and the fees
shall be due on the 7th day following invoice date.
Payments must be made in United States dollars. Customer is responsible
for providing Hawk Host with changes to billing information (such as
credit card expiration, change in billing address). Hawk Host may
suspend the service without notice if payment for the service is
overdue. Fees not disputed within thirty (30) days of due date are
conclusively deemed accurate. Customer agrees to pay Hawk Host's
reasonable reinstatement fee following a suspension of service for
non-payment, and to pay Hawk Host's reasonable costs of collection of
overdue amounts, including collection agency fees, attorney fees and
court costs. Customers who either reside in or have a primary billing address in Canada
subject to the appropriate GST/HST tax for their province. This tax will be included and
on all invoices issued by Hawk Host.
Fee Increases. Hawk Host 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 forty five (45) 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
- Taxes. At Hawk Host's request Customer shall remit to Hawk Host all
sales, VAT or similar tax imposed on the provision of the services (but
not in the nature of an income tax on Hawk Host), regardless of whether
Hawk Host fails to collect the tax at the time the related services are
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 Hawk
Host 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 Hawk
Host'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.
- Payments to Hawk Host are non-refundable except for the first payment which falls under
the thirty (30) day money back guarantee. Only shared, reseller and semi-dedicated
services are eligible for the thirty (30) day money back guarantee. No other services
provided by Hawk Host are covered by this guarantee. The thirty (30) day money back
guarantee is not valid upon any terms of service or acceptable use policy violations.
All overcharges or billing disputes must be reported within thirty (30) days of the time
the dispute occurred.
Law/AUP. Customer agrees to use the service in compliance with
applicable law and Hawk Host's Acceptable Use Policy posted at
http://hawkhost.com/Legal/aup (the "AUP"), which is hereby incorporated
by reference in this Agreement. Customer agrees that Hawk Host 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 Hawk Host'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 Hawk Host's reasonable investigation of any suspected
violation of the AUP. In the event of a dispute between Hawk Host and
Customer regarding the interpretation of the AUP, Hawk Host's
commercially reasonable interpretation of the AUP shall govern.
- Customer Information. Customer represents and warrants to Hawk Host
that the information he, she or it has provided and will provide to Hawk
Host for purposes of establishing and maintaining the service is
accurate. If Customer is an individual, Customer represents and warrants
to Hawk Host that he or she is at least 18 years of age. Hawk Host 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.
- Indemnification. Customer agrees to indemnify and hold harmless Hawk
Host, Hawk Host'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.
Disclaimer of Warranties.
Hawk Host does not warrant or represent that the services will be
uninterrupted, error-free, or completely secure. To the extent permitted
by applicable law Hawk Host 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.
- 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 possibility of such
Notwithstanding anything else in the agreement to the contrary, the
maximum aggregate liability of Hawk Host 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
- Suspension of Service. Customer agrees that Hawk Host may suspend
services to Customer without notice and without liability if: (i)Hawk
Host 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)Hawk Host
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. Customer shall pay Hawk Host's
reasonable reinstatement fee if service is reinstituted following a
suspension of service under this subsection.
- 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 Hawk Host fails in a material way to
provide the service in accordance with the terms of the Agreement and
does not cure the failure within ten (10) days of Customer's written
notice describing the failure in reasonable detail. The Agreement may be
terminated by Hawk Host prior to the expiration of the Initial Term or
any Renewal Term without further notice and without liability as
follows: (i) upon ten (10) 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 Hawk Host 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.
Requests for Customer Information. Customer agrees that Hawk Host
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 Hawk Host 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.
- Back Up Copy. Customer agrees to maintain a current copy of all content hosted
by Hawk Host nothwithstanding any agreement by Hawk Host to provide back up services. Hawk Host
will make a good faith effort to keep seven (7) days worth of backups through software
accessible by client. However, Hawk Host makes no absolute guarantee that a backup can be
provided. The customer
is ultimately responsible for maintaining and storing their own backups.
Changes to Hawk Host's Network. Upgrades and other changes in Hawk
Host'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. Hawk Host reserves the
right to change its network in its commercially reasonable discretion,
and Hawk Host shall not be liable for any resulting harm to Customer.
IP Address Ownership: If Hawk Host assigns Subscriber an Internet
Protocol address for Subscribers's use, the right to use that Internet
Protocol address shall belong only to Hawk Host, and Customer shall have
no right to use that Internet Protocol address except as permitted by in
its sole discretion in connection with the Services, during the term of
this Agreement Hawk Host shall maintain and control ownership of all
Internet Protocol numbers and addresses that may be assigned to Customer
by Hawk Host, and reserves the right to change or remove any and all such
Internet Protocol numbers and addresses, in its sole and absolute
discretion. Hawk Host's allocation of IP addresses is limited by ARIN's new
policies. These new policies state that use of IP addresses for IP based
virtual hosts will not be accepted as justification for new IP
addresses. What this means to the Customer is that you MUST use name-based
hosting where possible. We will periodically review IP address usage,
and if we find that clients are using IP addresses where name-based
hosting could be used, we will revoke authorization to use those IP
addresses that could be used with name-based hosting.
Bandwidth Usage. Hawk Host will monitor Subscribers's bandwidth.
Hawk Host shall have the right to take corrective action if Subscriber's
usage negatively impacts other clients.
- System and Network Security: Users are prohibited from violating or
attempting to violate the security of the Network. Violations of system
or network security may result in civil or criminal liability. Hawk Host will
investigate occurrences, which may involve such violations and may
involve, and cooperate with, law enforcement authorities in prosecuting
Users who are involved in such violations. These violations include,
- Accessing data not intended for such User or logging into a server or
account, which such User is not authorized to access.
Attempting to probe, scan or test the vulnerability of a system or
network or to breach security or authentication measures without proper
- Attempting to interfere with service to any user, host or network,
including, without limitation, via means of overloading, "flooding",
"mail bombing" or "crashing".
- Forging any TCP/IP packet header or any part of the header
information in any e-mail or newsgroup posting.
- Taking any action in order to obtain services to which such User is
Under no circumstances are you
allowed to run any daemons, servers or compile anything under your account
without direct permission from Hawk Host management. Shell access is
meant to be used solely with basic file system usage.
You're not allowed to use an excessive amount of system resources
for an extended period of time.
If your account is found to be utilizing a large amount of resources
we will contact you and give you further information. Under extreme
cases suspension may be necessary until the issue can be resolved.
You may not have cron jobs in intervals lower than 1 minutes a part.
You may use your account for personal use but not as a backup facility
for automated backups or things of that nature. If you're unsure if
your intended use violates this TOS please contact us so we can clarify
it for you.
- Notices. Notices to Hawk Host under the Agreement shall be given via
electronic mail to the e-mail address posted for customer support
(firstname.lastname@example.org). 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.
Force Majeure. Hawk Host shall not be in default of any obligation
under the Agreement if the failure to perform the obligation is due to
any event beyond Hawk Host'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.
Governing Law/Disputes. The Agreement shall be governed by the laws
of, exclusive of its choice of law principles, and the laws of the
United States of America, 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 ONTARIO, CANADA,
AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND
WAIVES ALL OBJECTIONS THERETO.
- Support. Hawk Host provides support to it's subscribers. Hawk Host
only ensures that the service is online and is remotely accessible. Hawk
Host does not offer technical support for application specific issues.
We encourage you to use our Ticket System on our web site.
- SPAM and Unsolicited Commercial Email (UCE). Hawk Host takes a zero
tolerance approach to the sending of Unsolicited Commercial Email (UCE)
or SPAM over our network. Under no circumstances are you to solicit the
sending of UCE or SPAM over our network or you will be subject to
penalties and service termination.
(a) Violation of Hawk Host's SPAM policy will result in severe penalties. Upon
notification of an alleged violation of our SPAM policy, Hawk Host will initiate
an immediate investigation (within 48 hours of notification). During the
investigation, Hawk Host may restrict customer access to the network to prevent
further violations. If a customer is found to be in violation of our
SPAM policy, Hawk Host may, at its sole discretion, restrict, suspend or terminate
customer's account. Further, Hawk Host reserves the right to pursue civil remedies
for any costs associated with the investigation of a substantiated
policy violation. Hawk Host will notify law enforcement officials if the violation
is believed to be a criminal offense.
c. As our Customers are ultimately responsible for the actions of their
clients over the network, it is advisable that Customers develop a
similar, or stricter, policy for their clients.
- 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.
The terms on Subscriber's purchase order or other business forms are not binding on
Hawk Host 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 Subcriber's of resellers are third party
beneficiaries to the Agreement. Subscriber may not transfer the
Agreement without Hawk Host's prior written consent. Hawk Host's
approval for assignment is contingent on the assignee meeting Hawk
Host's credit approval criteria. Hawk Host 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 supercedes and replace any prior understanding or communication,
written or oral.