THIS AGREEMENT/TERMS document is between The Image Stop ltd. / PenguinHosting.ca (“Company”) and any client who’s website is using the Company’s Maintenance Services. (“Client”).

The purpose of this Agreement (hereafter referred to as the “Agreement”) is to precede a longer-term contract arrangement under which Company will provide Website Maintenance services on behalf of Client for the Client and/or any of its customers.

Agreements

In consideration of the mutual covenants set forth in this Agreement, Customer and Client hereby agree as follows:

1. Terms.

By using our services the Client agrees to the following terms. Subject to these terms and conditions of this Agreement, Company will provide Website Maintenance services for Client subject to the following terms:

a) Length of Service.
Client agrees to hire the Company to a term equaling monthly service, quarterly service (every 3 months) or bi-annual service (every 6 months). As per the details found on our “Maintenance Details” page.
b) Service Start Date.
The first payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Company receipt of payment for such first Term of service or upon a mutually agreed upon alternate date. The cost of the maintenance services will be as published on the Company website.
d) Renewal by Client.
This Agreement will automatically renew for successive twelve (12) month Terms at the end of each maintenance term year unless canceled in writing by Client at least 30 days prior to the end of Term renewal date. Renewal prices are subject to change and will be done so in writing by Company at least 30 days prior to the end of the Term renewal date. Renewal of services by Client indicates agreement to any Contract revisions and price changes. Renewal fees for the following term will be automatically invoiced to Client’s account and invoices will be sent to the Client, payable upon receipt.

2. Maintenance Details.

a) Each maintenance package includes :

• website backup (files, pages, graphics, database)
• app & platform updates
• filtering of SPAM via comments as applicable
• 2 hrs / per term as per package subscribed to – for use on website changes, edits, and/or additions
• Website security scanning – assists with file protection, malware scanning, access and attempted access, malware removal if applicable.

b) The hourly work time(s) are for use during the term of the contracted Maintenance Packages registered for and cannot be banked. ie. A Client signing up for our monthly maintenance package must use the 2 hours per month production time during the month in question. The time cannot be saved and used in future months for time in addition to the existing month.

3. Terms of Payment.

Terms of payment are C.O.D. unless credit approval has been granted by Company. If credit approval has been granted, credit terms are net 10 days upon receipt of invoice. We reserve the right to revoke any credit extended if payment is in arrears for more than 30 days.

Invoiced amounts are due within thirty (30) days after the date of the invoice, without any right of deduction or set-off. Interest will accrue on all past due amounts at a rate of 3.9% per month (59.9% per annum on a compounded basis) or such other rate as The Image Stop ltd. may set from time to time. An administrative surcharge of $25 will apply to returned cheques. You will be responsible for all costs incurred byThe Image Stop ltd. to collect any unpaid invoices, including, but not limited to, legal fees.

4. Proprietary Information.

Proprietary information exchanged hereunder shall be treated as such by Client. This information shall include, but not be limited to, the provisions of this Agreement, product, and services information and pricing. Client further agrees to not decompose, disassemble, decode or reverse engineer any Company program, code or technology delivered to Client or any portion thereof.

5. Warranties.

Company makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. Company also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of Client. Use of any information obtained by way of Company is at Client’s own risk, and Company specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of an end-to-end connection. Company does not represent guarantees of speed or availability of end-to-end connections. Company expressly limits its damages to Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Company specifically denies any responsibilities for any damages arising as a consequence of such unavailability.

6. Trademarks and Copyrighted Material.

Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.

7. Password Protection.

Client is responsible for protecting Client’s password and for any authorized or unauthorized use made of Client’s password. Client will not use or permit anyone to use Company’s service to guess passwords or to access other systems or networks without authorization. Company will fully co-operate with law enforcement authorities in the detection and prosecution of illegal activity.

8. Backups and Data Loss.

The Company will create backups of the client’s website and database once per month, quarter or bi-annually whichever timeframe corresponds with the Client’s chosen and paid for Maintenance Package.

9. Backup and Uptime Guarantee.

Company cannot guarantee uptime due to unforeseen happenings such as power outages, internal website script failures etc. Company will store the backups of the Client website and database off-site in a cloud storage area and is not responsible for any potential loss or corruption of the backup files.

10. Email.

The Company is not responsible for backups of Client email in any way. The Company will not access or backup email from the Client hosting account at anytime. The Company maintenance Packages include services to and for the Client website only.

11. Warranty and Assumption of Risk.

Client uses Company services at Client’s own risk. Company makes no warranty expressed or implied, including but not limited to any warranty of merchantability or fitness for a particular purpose. Company shall not be liable for any loss or other damage, including but not limited to special, incidental, consequential, or punitive damages, resulting from any failure to provide service or from any termination of service. Company has no control whatsoever and shall not be responsible to Client for the content of any website or for the content of any third-party material passing through or associated with Client’s website, some of which may be illegal, inaccurate, adult in nature, harmful, or offensive.

12. Terms of Contract, Termination, and Renewal.

• All contracts are on a recurring basis. Client shall pay Company recurring fees (hereinafter “Recurring Fees”). Pre-payment of recurring fees is due by the time stated on Company’s invoice. Amounts past due may result in the termination of Client’s account. Taxes, special services, and third-party charges will be stated separately on the invoice. Client shall pay all taxes, fees, and governmental charges. Company may change prices without notice and it is the Client’s responsibility to check the website for updates. Grandfathered accounts will not be affected.

• All cancellations by Client of service or changes in service must be done in writing to Company. It can be done by email (support@penguinhosting.ca) or via regular postal to PenguinHosting / The Image Stop ltd. 47 Cedarbrook Close SW, Calgary, AB, T2W5B8. A 30-day money back guarantee is offered on shared hosting plans. If cancellation is requested within 30 days of initial setup date, then the full hosting fees will be refunded. After 30 days of cancellation, refunds will not be issued for any unused hosting time. The following methods of payments are non-refundable, and refunds will be posted as a credit to the hosting account: bank wire transfers, Interac Email Transfers, online payments, cheques, and money orders. Only first-time accounts are eligible for a refund. For example, if you’ve had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us. Violations of the legal agreement will waive the refund policy.

• Should the request for cancellation or change of domain registration management and/or hosting be submitted within 180 days (6 months) of domain renewal being completed by the Company, the Client agrees to pay for the costs of domain renewal for the term indicated by the renewal. This term shall not be greater than one (1) year nor shall the cost exceed $30 CDN. Upon a change of registration ownership, an invoice will be issued for the amount of the renewal plus any relevant administration fees.

• If Client breaches any part of this contract and Company has to engage the services of an attorney, the Client will pay any and all of Company’s reasonable attorney fees and court costs.

• All Client fees are due when invoiced. For example, the fees for such services, ie Website Maintenance services, during the term shall be due on the Effective Date or before the provision of Services. The fees for Services for Renewal Term are due on or prior to the Anniversary Date for such Renewal Term. The amount due may be adjusted by addition of Services, Upgrade of Services, discontinuance of services or downgrade of services and through the use of any credits applied. The fees for additional or upgraded services for which the “Order” is accepted on the anniversary billing date will be due on the anniversary billing date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one time pro-rata charge on the next Billing date. All fees will be due for the following renewal terms until canceled in Section 13a. In the event that a customer does not pay service fees after 60 days of the Renewal invoice, the services will be suspended and the customer will be assessed a fee of $25.00. The overdue invoice and additional fee must be paid in full in order for services to be reinstated. If full payment is not received within 30 days of account suspension all services may become inaccessible may be reclaimed as is possible. All data stored on the cloud servers may be fully deleted and lost at this time and is not the responsibility of The Image Stop ltd. / PenguinHosting.ca.

• Invoiced amounts are due within thirty (30) days after the date of the invoice, without any right of deduction or set-off. Interest will accrue on all past due amounts at a rate of 5% per month (60% per annum on a compounded basis) or such other rate as The Image Stop ltd. may set from time to time. An administrative surcharge of $25 will apply to returned cheques. You will be responsible for all costs incurred byThe Image Stop ltd. to collect any unpaid invoices, including, but not limited to, legal fees.

13. Limitation of Liability.

In no event shall Company or any of its officers, contractors, or employees be liable for any loss of profit or revenue by Client or for any consequential, incidental, special or exemplary damages incurred or suffered by Client, nor for any loss of power or heating, ventilation, and air conditioning interruption, even if Company has been advised of the possibility of such loss or damage. Client shall indemnify and hold harmless Company from and against any all claims, costs, expenses or liability arising out of Client’s (inclusive Client’s officer, contractors, employee agents, and invitees) collective or individual use, occupancy or operation of Client’s website content and/or information.

14. Changes.

Company reserves the right to revise its policies at any time without notice.

15. Transfer of Agreement.

Client may not assign or transfer this Agreement, in whole or in part without the prior written consent of Company. In the event that Client contemplates a whole or partial sale of its business, ownership change, or change in jurisdiction, Client shall notify Company by mail or email no less than 60 days prior to the effective date of the event.

16. Termination.

Company may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events: 1) failure to comply with any provisions of the Agreement upon receipt of written notice from Company of said failure, 2) appointment of Receiver or upon the filing of any application by Client seeking relief from creditors, 3) upon mutual agreement in writing of Company and Client.

17. Disputes.

If legal proceedings are commenced to resolve a dispute arising out of, or relating to, this Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.

18. Indemnification.

Client shall indemnify and hold Company harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Company directly or indirectly arising from or in connection with Client’s marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by Client.

19. General.

If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta. Exclusive jurisdiction and venue shall be in the city of Calgary, Alberta Court of Queen’s Bench. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.

Each party represents and warrants that on the first date of hosted services and all dates of hosted services thereafter, they are authorized to enter into this Agreement in entirety and duly bind their respective principals.