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 CONDITIONSOF THIS AGREEMENT, ANY APPLICABLE DOMAIN NAME REGISTRATION AGREEMENTS AND ALL POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO.
1. Term and Termination
1.1. Term. The Services are provided on a fixed term basis as agreed upon at the initial order for the Service ("Service Term"). The Service Term shall begin on the date YOU subscribe to the Service.
1.2. Termination by YOU. YOU may terminate the Service at any time upon notice to HOWLHOST, subject to Section 1.4 below. Termination is effective on the date YOU contact HOWLHOST to cancel the Service or as of a future date designated by YOU or HOWLHOST. Termination of the Service does not affect YOUR obligations under this Agreement, including YOUR obligation to pay all fees for Services rendered prior to termination and any termination, processing and administration fees incurred as a result of such termination. HOWLHOST accounts must be paid in full before a cancellation will be considered complete.FURTHER, paid charges are not subject to refund so IF YOU cancel Service before the end of a billing cycle, there will be no pro-rated refunds or credits for any partial-month periods remaining after the termination date. Additionally, If YOU agreed to a Service TERM that requires a minimum term commitment and Service is terminated prior to the end of the Service Term, YOU WILL be subject to an Early Termination Fee.
1.3. Termination by HOWLHOST. HOWLHOST may terminate YOUR Service for any reason by providing written notice to YOU at least thirty (30) days prior to the termination date, subject to Section 1.4 below. Further, HOWLHOST may terminate this Agreement and YOUR Service immediately if it determines, in its sole discretion, that YOU have violated any of the provisions of this Agreement, including but not limited to HOWLHOST's Acceptable Use Policy. HOWLHOST reserves the right to unilaterally terminate or suspend an account at any time, without providing a reason.
1.4. Liability and Obligations on Termination. Should the Agreement expire or be terminated for any reason, HOWLHOST 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. HOWLHOST 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, HOWLHOST 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 HOWLHOST.
2. Fees, Payment And Billing
2.1. Fees. Fees include, without limitation, applicable set up or installation fees, monthly Service fees, and other additional fees as set forth below. Service rates, terms and conditions will be posted on the HOWLHOST website or otherwise made available to YOU by HOWLHOST. HOWLHOST shall begin charging YOU at the start of the Service Term, unless otherwise specified by HOWLHOST. All stated fees are not inclusive of any taxes and YOU agree to pay all federal, state, and/or local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services.
2.2. Additional Fees - All HOWLHOST Services are subject to additional fees as deemed necessary, including, but not limited to overage charges, early termination fees, upgrade fees, insufficient funds fees, late fees, support fees and setup fees.
2.3. Payment Method and Timing. HOWLHOST will invoice fees for Services in advance. Accounts may be paid by electronic bank draft, e-transfer, money order, check or credit card. YOUR HOWLHOST account will be considered delinquent if payment is rejected for any reason or if any unpaid balance remains on the account. Payment is in advance of Service for the predetermined billing period of monthly, quarterly or annually chosen by YOU during initial setup. The billing period can be changed at any time by contacting HOWLHOST directly via email at . If the billing period is changed, charges will be prorated based on a calculation of the cost per day multiplied bythe number of days remaining to be billed.
2.4. Late Fees and Service Interruption/Disconnect. HOWLHOST shall charge YOU Late and other applicable fees to recover the costs of dealing with late payment situations. These fees are in addition to all other fees. Additionally, HOWLHOST may interrupt or disconnect YOUR Services for non-payment and YOU shall be subject to a Reconnect Fee to resume Service. The late terms and associated charges are determined by the date payment is received by HOWLHOST. Late terms and associated fees for each stage of the delinquency process are as set forth in the Additional Fee Statement. The Additional Fee Statement also sets forth the appropriate intervals you're your account will be interrupted or disconnected and when any outstanding balance will be sent to collections. In all cases, if YOU want to resume or reconnect Service, YOUR account must be brought current and YOU shall be subject to a reconnect fee.
2.5. Fee Changes. YOU acknowledge and agree that HOWLHOST has the right to change its Service fees, additional fees, or add new fees at any time, upon notice to YOU. Notwithstanding the foregoing, if YOU agree to a Service with a Service Term of one (1) year or more, then YOUR base monthly Service fees shall not be subject to change during the Service Term, but additional fees are still subject to change.
3. Use of Services
3.1. 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 to 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 HOWLHOST of any unauthorized use of the Services or YOUR passwords or of any other breach of security and to provide assistance to HOWLHOST, as requested, to stop, prevent or remedy any breach of security.
3.2. Applicable Policies and Agreements. As a condition of use of the Service, YOU warrant to HOWLHOST that YOU will use the Service in accordance with the HOWLHOST Acceptable Use Policy as it may be updated from time to time and which is available at https://howlhost.ca/legal/aup/
3.3. Material and Product Requirements. YOU must ensure that all material and data placed on HOWLHOST's servers is in a condition that is "server-ready," which is in a form requiring no additional manipulation by HOWLHOST. HOWLHOST 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", HOWLHOST has the option at any time to reject this material. HOWLHOST 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 HOWLHOST. 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 HOWLHOST's responsibility to provide this knowledge or customer support unless otherwise agreed apon by an authorized representative of HOWLHOST. HOWLHOST reserves the right to determine what additional services or support can be performed outside the scope of the most recent service agreement between YOU and HOWLHOST. Any additional services or support that are determined by HOWLHOST to be outside the most recent service agreement are subject to additional fees. (SEE SECTION 2. ABOVE)
3.4. 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 as set forth in the Service plan 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, HOWLHOST may, in its sole discretion, assess YOU with additional charges, suspend the performance of the Services, or terminate this Agreement. In the event that HOWLHOST elects to take any corrective action, YOU will not be entitled to a refund of any unused pre-paid fees.
3.5. Domain Names. As part of the Services, YOU will provide HOWLHOST with a registered domain name or names or HOWLHOST 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 HOWLHOST for any fees paid by HOWLHOST 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 HOWLHOST 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 HOWLHOST of any fees paid with respect to the registration of such unusable domain name. There is no charge for indefinite parking of domains on HOWLHOST servers or to transfer to another service provider. However, in the event a domain that was registered by HOWLHOST is transferred to another service provider, and requires manual intervention by HOWLHOST 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 HOWLHOST is NOT a Registrar and hosting services for domain names residing on the HOWLHOST system must be provided by HOWLHOST. 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 account. YOU are responsible for spelling a domain name correctly while registering it online. HOWLHOST will not provide refunds or credits for misspelled domain names.
3.6. Miscellaneous Components. YOU acknowledge that unless otherwise agreed upon, 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 HOWLHOST. HOWLHOST 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.
4. Intellectual Property Rights
4.1. HOWLHOST 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 HOWLHOST, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws. HOWLHOST shall also maintain and control ownership of all Internet protocol ("IP") numbers and email addresses that may be assigned to YOU by HOWLHOST. HOWLHOST reserves, in its sole discretion, the right to change or remove any and all such IP numbers and email addresses at any time.
4.2. YOUR Content. HOWLHOST 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 HOWLHOST or any third party, using the Services. However, YOU agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to HOWLHOST or any third party, using the Services, YOU have thereby granted HOWLHOST 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 HOWLHOST 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 HOWLHOST 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.
5.1. Investigation of Violations. HOWLHOST may investigate any reported violation of this Agreement, its policies and guidelines, the Acceptable Use Policy 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. HOWLHOST 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 or without YOUR express written permission.
5.2. Actions. HOWLHOST 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, the Acceptable Use Policy, third-party intellectual property rights or any laws. HOWLHOST 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 HOWLHOST'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 HOWLHOST. It is HOWLHOST's policy to terminate Services to infringers. The above stated rights of action, however, do not obligate HOWLHOST to monitor or exert editorial control over the information made available for distribution via the Services and YOU acknowledge that HOWLHOST 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 HOWLHOST takes action due to such possible violation, HOWLHOST shall not be obligated to refund to YOU any fees.
6. Warranties and Disclaimers
6.1. YOUR Warranties and Representations to HOWLHOST. YOU warrant, represent, and covenant to HOWLHOST 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.
6.2. Warranty and Disclaimer.THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. HOWLHOST DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Although HOWLHOST will use commercially reasonable measures to maintain the security of the Services, HOWLHOST assumes no responsibility for the effectiveness of these security measures provided by HOWLHOST.
7. Exclusion and Limitation of Liability
7.1. Exclusion of Liability.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL HOWLHOST, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUPPLIERS, RESELLERS AND DISTRIBUTORS OR ANY OF THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "HOWLHOST ENTITIES" AND EACH, A "HOWLHOST 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 HOWLHOST 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 HOWLHOST's SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES.
7.2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE HOWLHOST ENTITIES FOR DAMAGES SHALL BE LIMITED TO THE LESSER OF (A) THE AMOUNT ACTUALLY PAID TO HOWLHOST BY YOU UNDER THIS AGREEMENT DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED OR (B) THE SUM OF ONE HUNDRED (CA$100.00) DOLLARS CAD. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY HOWLHOST HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE THE HOWLHOST ENTITIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS PARAGRAPH.
7.3. Interruption of Service. YOU hereby acknowledge and agree that HOWLHOST and its suppliers will NOT be liable for any delay, outages or interruptions of the Services. Further, HOWLHOST 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).
8.1. Indemnity to HOWLHOST. YOU hereby release and hold harmless, and agree to indemnify, the HOWLHOST 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 HOWLHOST Entities, 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 of 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)
8.2. Third Party Beneficiaries. YOU are hereby notified that the HOWLHOST 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.
9. General Provisions
9.1. Entire Agreement. This Agreement, including any domain registration agreements, documents, web sites, rules, terms, policies and guidelines referenced herein, constitutes the entire agreement between HOWLHOST 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 HOWLHOST and YOU with respect to such matters.
9.2. No Waiver. The failure of HOWLHOST 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 HOWLHOST nor trade practice shall act to modify any provision of this Agreement.
9.3. 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 HOWLHOST, and the remainder of this Agreement shall remain in full force and effect.
9.4. Amendments. HOWLHOST may modify this Agreement from time to time, and YOUR continued use of the Service following notice of such modification shall be deemed to be YOUR acceptance of such modification. If YOU do not agree to any modification of this Agreement, YOU must immediately stop using the Service and notify HOWLHOST of YOUR desire to cancel the Service
9.5. Jurisdiction/Venue/Choice of Law. YOU agree that exclusive jurisdiction for any claim or dispute with HOWLHOST or relating in any way to YOUR account or YOUR use of the Services resides in the courts of Colorado and that this Agreement shall be governed by Colorado law. YOU expressly consent to the exercise of personal jurisdiction in the courts of Colorado in connection with any such dispute. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement or compel performance thereof, the substantially prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which such party may be entitled.
9.6. Successor Sites. All references to HOWLHOST 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).
9.7. Assignment. HOWLHOST 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.
9.8. Enurement. This Agreement will ensure to the benefit of and bind YOU and HOWLHOST and its respective personal and legal representatives, successors and permitted assigns.
9.9. Cumulative Rights. The rights, powers and remedies of HOWLHOST 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 HOWLHOST at law or in equity.
9.10. 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.
9.11. Relationship. YOU agree that no joint venture, partnership, employment or agency relationship exists between HOWLHOST and YOU as a result of this Agreement or use of the Services.
9.12. Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
9.13 Notices. Notifications of either party to this Agreement shall be effective upon receipt when sent by email, or to YOU at the physical address or email address set forth on YOUR account with HOWLHOST.