KevHosting

TERMS OF SERVICE

Terms of Service (TOS) [Updated:August 21, 2009]

This Web Hosting Agreement (this “Agreement”) is a legally binding agreement between KevHosting (the “Company”), and the account owner (the “Customer”). This Agreement governs Customer's use of KevHosting's Web hosting service.

Table of Contents:
Services
Term
Payments
Law/AUP
SLA
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension of Services/Termination
Request for Customer Information
Back Up Copy
Notices
Force Majeure
Governing Law/Disputes
Miscellaneous
Privacy Policy
SLA Credit Policy
Severability

1. Services. Subject to the terms of this Agreement, KevHosting agrees to provide services outlined in the order page, and any other services that may be ordered throughout the lifetime of the account.

2. Term. The initial service term of the Agreement shall begin on the date that services ordered by the customer are setup. KevHosting will generate an e-mail message to the Customer announcing the activation of the Customer's account (the “Service Commencement Date“). Every month, fifteen (15) days before the renewal date for each service, the Customer will receive a new invoice automatically for renewal of the service in question. To cancel service, the customer must place a cancellation ticket in the billing queue at https://www.kevhosting.com/support. This ticket MUST be received before the invoice is generated for the service to be cancelled. Upon receipt of
this message, the service will be cancelled, and all data specific for that service removed on the service renewal date. The Initial Term and any Renewal date may be referred to collectively in this Agreement as the “Term“.

3. Payments.

(a) Fees. Fees are payable in advance on the first day of each billing cycle. The Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. KevHosting requires payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, the Customer authorizes KevHosting to bill the displayed amount, in United States dollars to the credit/debit card on, or after the first day of each successive billing cycle during the Term of this Agreement; otherwise KevHosting will invoice the Customer via electronic mail to the Primary Customer Contact listed on the Order. VPS Hosting services require full payment on the due date. Any VPS Hosting services left unpaid on the payment due date will be suspended. For renewals (monthly), Credit cards may be authorized three (3) days before the due date to prevent late invoices.

(b) Early Termination. The customer acknowledges that the invoice for services is based on the Customer's order. In the event that KevHosting terminates the Agreement for the Customer's breach of the Agreement in accordance with Section 9 (Termination), 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. No refunds for unused service will be returned on accounts terminated for breach of agreement.

All Payments must be made in United States dollars. The Customer is responsible for providing KevHosting with changes to billing information (such as credit card expiration, change in billing address) At its option, KevHosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. The customer will be sent an electronic mail to the Primary, and Secondary Customer contacts if the payment is late. KevHosting may suspend the service without notice if payment for the service is overdue. Late accounts are sent two notices. A notice will be dispatched to the customer one day after the invoice is due to remind the customer of the invoice. A second notice will be dispatched two days after the invoice is due. After three days, the account will be suspended, and a fifty dollar ($50.00) late fee will be invoiced, and will have to be paid before account reinstatement. Disputes, or charge-backs will result in immediate suspension, with a Two hundred and Fifty dollar Research fee ($250.00) billed to the client, and immediately due. All billing disputes should be handled in the client system, under the billing queue. Billing errors will be promptly corrected with a possible compensation offered to the client. If the account is not paid in full after seven (7) days, the invoice may be forwarded to collections with a reasonable fee (Usually $150.00 (One Hundred and Fifty) ) to cover collection agency fees, attorney fees, and court costs. Threats of disputes or chargebacks will result in immediate suspension. Please contact the billing department for any billing related issues. KevHosting reserves the right to take full possession and ownership of domains of chargebacked accounts, and sell these domains to attempt to recover losses.

Bandwidth overages will be billed at Twenty Five Cents ($0.25) per gigabyte.

4. Law/AUP. The Customer agrees to use the service in compliance with applicable law and KevHosting's Acceptable Use Policy posted at http://www.kevhosting.com/aup.php (the “AUP“), which is hereby incorporated by reference in this Agreement. The Customer agrees that KevHosting 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 the Customer's use of the Services. Amendments to the AUP are effective immediately. The Company may, or may not notify the Customer of an AUP amendment. The Customer agrees to cooperate with KevHosting's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between KevHosting and the Customer regarding the interpretation of the AUP, KevHosting's commercially reasonable interpretation of the AUP shall govern.

5. Customer Information. The Customer represents and warrants to KevHosting that the information he, she, or it has provided, and will provide to KevHosting for purposes of establishing and maintaining the service is accurate. KevHosting may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to the Customer's account until the Customer has provided a written notice changing the Primary Customer Contract.

6. Indemnification. The Customer agrees to indemnify and hold harmless KevHosting, KevHosting'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 the Customer's services in violation of applicable law or the AUP by the Customer or any person using the Customer's log on information, regardless of whether such person has been authorized to use the services by the Customer.

7. Disclaimer of Warranties. KevHosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED,ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW KevHosting 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.

8. 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 DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE
LIABILITY OF KevHosting 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 THE CUSTOMER FOR THREE MONTHS OF SERVICE.

9. Suspension/Termination.

(a) Suspension of Service. The Customer agrees that KevHosting may suspend services to Customer without notice and without liability if: (i) KevHosting reasonably believes that the services are being used in violation of the AUP; (ii) the Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) KevHosting 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 KevHosting's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

(b) Termination. The Agreement may be terminated by KevHosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon three (3) days notice if the Customer is overdue on the payment of any amount due under the Agreement; (ii) the Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within the set time frame on the policy enforcement notice from KevHosting describing the violation in reasonable detail; (iii) upon one (1) days notice if the Customer violates Section 5 (Customer Information) of this Agreement. KevHosting also reserves the right to terminate the customer with no reason. This is only used in extreme cases.

10. Requests for Customer Information. The Customer agrees that KevHosting may, without notice to The Customer, (i) report to the appropriate authorities any conduct by the Customer or any of the Customer's customers or end users that KevHosting believes violates applicable law, and (ii) provide any information that it has about the 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.

11. Back Up Copy. The Customer agrees to maintain a current copy of all content hosted by KevHosting notwithstanding any agreement by KevHosting to provide back up services. KevHosting will charge a flat fee of $10.00 for each account backup retrieved off the Network Attached Storage drive. This will be free upon server failures. There is no charge for backups off the second hard drive if applicable. VPS and dedicated servers do not have any backups made by default. There is no guarantee that backups will be usable, or valid.

12. Changes to KevHosting's Network. Upgrades and other changes in KevHosting's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the Customer's hosted content and/or applications. KevHosting reserves the right to change its network in its commercially reasonable discretion, and KevHosting shall not be liable for any resulting harm to the Customer.

13. Notices. Notices to KevHosting under the Agreement shall be given via support ticket to the support desk located at http://www.KevHosting.com/support. Notices to the Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on file. 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. The Customer may change his, her or its notice address by a notice given in accordance with this Section.

14. Force Majeure. KevHosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond KevHosting'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, “acts of god“, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

15. Governing Law/Disputes. The Agreement shall be governed by the laws of the Province of Ontario, exclusive of its choice of law principles, and the laws of Canada, 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 PROVINCIAL COURTS IN OTTAWA, ONTARIO, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

16. 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. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on the Customer's purchase order or other business forms are not binding on KevHosting 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 customers of resellers are third party beneficiaries to the Agreement. The Customer may not transfer the Agreement without KevHosting's prior written consent. KevHosting may assign the Agreement in whole or in part.

17. Privacy Policy. When you sign up for our service, we will ask you to provide contact information such as your name, address, telephone numbers, e-mail addresses, and payment information such as credit card number and expiration date. This information will be stored in a protected database. If you contact us for customer support, we may ask you certain questions about your computer setup to better assist you. When you visit our Web site we will capture your IP Address, time of and duration of visit, and time and duration of the pages on our Web site that you view. We may tie this information to the personally identifiable information we have about you. Information we have on file will be used primarily for our services. We will never transfer or sell your information for inclusion on third party e-mail or other marketing lists.

18. SLA Credit Policy. SLA Credits may be granted at The Company's discretion. SLA credits will NOT be granted for any customer who has one or more overdue invoices.

19. Severability. A portion of this agreement deemed to be unenforceable, or illegal, will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

20. Domain Names. Clients who register domain names through KevHosting agree to the domain terms of service. This can be found at http://www.kevhosting.com/domainagreement.php

Additional Information. KevHosting reserves the right to request additional identification on any order. The request for additional identification will be sent to the customer before services are established

This Agreement together with the 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.