Master Service Agreement

 

Star Dot Hosting Inc (Master Service Agreement)

 

This agreement (‘ Agreement ‘) is made between:

Star Dot Hosting Inc., (‘ Star Dot Hosting ‘ , ‘ www.stardothosting.com ‘, ‘ Stardot Hosting ‘, ‘Star Dot Hosting Inc’)

AND:

The customer specified in the electronic order form annexed as Exhibit ‘A’ hereto (the ‘Order’) which has been submitted to Star Dot Hosting and is incorporated in this Agreement by reference (the ‘ Customer ‘).

THE CUSTOMER ACKNOWLEDGES THAT THE TERMS AND CONDITIONS OF THIS MASTER SERVICE AGREEMENT HAVE BEEN MADE AVAILABLE TO THE CUSTOMER AND HAVE BEEN REVIEWED BY THE CUSTOMER PRIOR TO THE CUSTOMER SUBMITTING THE ORDER REQUESTING THE PERFORMANCE OF SERVICES BY STAR DOT HOSTING. THE CUSTOMER FURTHER ACKNOWLEDGES THAT SUBMISSION OF THE ORDER CONSTITUTES ACCEPTANCE OF THIS AGREEMENT AND WILL BIND THE CUSTOMER TO ALL OF THE TERMS AND CONDITIONS HEREOF.

In consideration of the mutual promises and covenants made herein, the parties agree as follows:

1. Services

Subject to the terms and conditions of this Agreement, Star Dot Hosting will provide the Services specified in the Order (the ‘Services’).

Subject to the Customer’s right to terminate this Agreement as provided herein, Star Dot Hosting may expand or contract the scope of the Services or terminate this Agreement for any reason by issuing an amended Order to the Customer 30 days in advance of such change. The Customer’s continued use of Star Dot Hosting’s Services after modification of these Services constitutes Customer’s acceptance of the modifications.

2. Initial Term

The duration of the initial term of this Agreement is stated in the Order (‘Initial Term’). The Initial Term shall commence on the later of:

(a) the date upon which Star Dot Hosting accepts the completed Order from the Customer; and (b) the date upon which Customer’s first payment as set out in the Order has been received by Star Dot Hosting (in accordance with the payment provisions set out in Section 25 hereof).

3. Renewal Term

Unless this Agreement is earlier terminated in accordance with the provisions hereof, this Agreement will at the conclusion of the Initial Term automatically renew for successive terms of equal length to the Initial Term upon the same terms and conditions as those specified herein.

4. Customer Satisfaction Guarantee

Star Dot Hosting offers a 30 Day Money Back Guarantee to all new customers. The purpose of this guarantee is to allow customers to experience Star Dot Hosting’s Services and determine to their satisfaction that these Services meet or exceed industry standards for performance and reliability. If the Customer is not satisfied that Star Dot Hosting has met industry standards for performance and reliability during the first 30 days of the Initial Term of this Agreement, the Customer may submit a ‘Money Back Guarantee’ request form. To request this form, the Customer may send an email to billing@stardothosting.com.

Upon receipt of the request form within the specified guarantee period, Star Dot Hosting will terminate the Services to the Customer and will refund the fees paid by the Customer. This refund will not include any setup fees or hourly support fees paid to Star Dot Hosting.

5. Infrastructure Availability

Star Dot Hosting will provide a minimum 99.99% uninterrupted access to your web site, email, VPS and other related services. Should your services become unavailable for a cumulative period beyond the allowed 0.01% in any month of service, the client will receive a credit equivalent to 5% of the client’s pro-rated recurring monthly fees for that month and then an additional 5% for every additional 15 minutes the web site and/or other related services are unavailable.

All credit calculations will be based on unavailability in 15 minute increments. The above agreement does not cover outages caused by client error or account transfers. This Service Level Agreement does not cover outages due to scheduled or emergency network and/or facility maintenance, which will be broadcast to all customers in advance via the web page at https://secure.stardothosting.com or via direct email, and will not exceed two hours per month.

Any and all credits to the client will not exceed 100% of the client’s Recurring Monthly Fees for the month in which the credit is paid. All credits must be requested within 30 days of the outage.

To request a credit email billing@stardothosting.com with your account name along with the time of and time span of the outage.

6. Hardware Replacement

STAR DOT HOSTING will do its best to make hardware replacements on all dedicated systems. All attempts will be made to get the system diagnosed and operational within 12 hours. There are no additional fees for hardware replacement in dedicated systems.

Star Dot Hosting will use its best efforts to maintain the functioning of all server hardware components at all times and will replace any failed component at no cost to the Customer.Hardware replacement will begin once Star Dot Hosting identifies the cause of the problem and will be complete within 24 hours of the problem identification.

In the event that it takes Star Dot Hosting more than 4 hours to replace faulty hardware, Star Dot Hosting will refund the Customer 5% of the otherwise payable monthly fee for each additional 60 minutes of downtime (up to a maximum of 50% of Customer’s monthly fee for the affected server).

Hardware is defined as the processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included with the server. Downtime will not include the time required to rebuild a RAID array, or to reload operating systems, applications and data restores.

7. 100% Network Availability

Star Dot Hosting will use its best efforts to ensure that the PEER 1 network will be available 100% of the time in a given month. If it becomes unavailable and the Customer experiences downtime, Star Dot Hosting will refund 5% of the Customer’s monthly fee otherwise payable for each 60 minutes of downtime (up to a maximum of 50% of Customer’s monthly fee for the affected server). Network availability includes functioning of all network infrastructure including routers, switches and cabling. It does not include services or software running on the Customer’s server. Network downtime exists when the Customer is unable to transmit and receive data and is measured from the time the trouble ticket is opened at https://secure.stardothosting.com.

Credits shall not be provided to the Customer if network downtime is the result of: a) scheduled maintenance as contemplated in Section 9; b) Emergency Suspension of Services as contemplated in Section 10; c) circumstances beyond Star Dot Hosting’s control, including but not limited to third party network outages, war, fire, flood, other acts of God, sabotage, labor disturbance, government regulations or other government intervention; or d) a breach by the Customer of this Agreement or Star Dot Hosting’s Acceptable Use Policy.

8. Network Latency and Packet Loss

Star Dot Hosting’s Network will be maintained in such a manner as to provide the best possible performance to the Internet. In order to achieve this Star Dot Hosting will use its best efforts to ensure:

(a) Zero packet loss internal to the PEER 1 network;

(b) Customer traffic will be delivered to a backbone Internet Carrier (including MCI, Cable & Wireless, or Global Crossing) with an average latency not greater than 5ms over 30 seconds;

(c) Average Inter-city latencies (within 1ms over 30 seconds) which will function at the following rates:

* Vancouver to Seattle – 5ms

* Vancouver to Toronto – 56ms

* Toronto to Montreal – 10ms

* Montreal to New York – 10ms

* Toronto to Chicago – 18ms

Credits shall not be provided to the Customer if degraded network performance is the result of: a) scheduled maintenance as contemplated in Section 9; b) Emergency Suspension of Services as contemplated in Section 10; c) circumstances beyond Star Dot Hosting’s control, including but not limited to network attacks, third party network outages, war, fire, flood, other acts of God, sabotage, labor disturbance, government regulations or other government intervention; or

d) a breach by the Customer of this Agreement or Star Dot Hosting’s Acceptable Use Policy.

9. Temporary Service Suspension

The Customer agrees that from time to time, it may be necessary for Star Dot Hosting to temporarily suspend Services for technical reasons or to maintain the PEER 1 network, the hardware or any other facilities, the timing of which will be determined by Star Dot Hosting. Provided Star Dot Hosting provide the Customer with reasonable advance notice of the temporary suspension of Services, such suspension will not be deemed an interruption of the Services for the purpose of calculating network availability or the Customer’s entitlement to credit for network interruption.

Maintenance windows will typically be conducted between 2am to 5am (EST) Monday mornings to minimize impact on customers. Maintenance windows will typically be 5 minutes or less in length.

10. Emergency Service Suspension

Star Dot Hosting may at any time and from time to time suspend Services without penalty or liability for any claim by the Customer where necessary, acting reasonably, to prevent the improper or unlawful use of Star Dot Hosting’s services or equipment by the Customer or any other person. Star Dot Hosting will provide the Customer with notice following such an emergency suspension to advise of the reasons for the suspension. Such emergency suspension of Services will not be deemed an interruption of the Services for the purpose of calculating network availability or the Customer’s entitlement to credit for network interruption.

11. Data Backups

Star Dot Hosting offers data backups as an extra service. Star Dot Hosting will use commercially reasonable efforts and industry accepted methods to ensure the reliability of the backup and restore process. However, because of the technical limitations regarding backups on live servers and the possibility of data corruption on backup or restore, Star Dot Hosting cannot guarantee all or any data can be restored from any particular backup. The Customer acknowledges that Star Dot Hosting will have no liability whatsoever for any claim resulting from a failed backup and/or restore procedure.

12. Rights to Star Dot Hosting Intellectual Property

The Customer shall not display or otherwise use any trade mark, trade name, copyright, logo, symbols, coined word or combination of words, or any other intellectual property whatsoever owned or used by Star Dot Hosting, nor will Customer permit the same to be displayed or otherwise used in connection with any business conducted or controlled by the Customer, except in all cases as may be specified or approved in writing by Star Dot Hosting.

13. Termination of Agreement

If the Customer breaches any of its obligations under this Agreement or the Acceptable Use Policy annexed as Exhibit B and incorporated by reference into this Agreement, Star Dot Hosting may terminate this Agreement immediately and without prior notice.

Star Dot Hosting may also terminate this Agreement upon the giving of not less than thirty (30) days’ prior written notice the Customer. The Customer may cancel this Agreement as provided for in Section 25.4. In the event the scope of Services provided to Customer is unilaterally changed by Star Dot Hosting as contemplated in Section 1 hereof, the Customer shall be permitted to terminate the Agreement at any time prior to the date that the change proposed by Star Dot Hosting is to take effect.

14. Limitation of Liability

CUSTOMER AGREES THAT NEITHER STAR DOT HOSTING NOR ANY OF ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES OF STAR DOT HOSTING (COLLECTIVELY, THE ‘STAR DOT HOSTING INDEMNITIES’) WILL AT ANY TIME BE HELD LIABLE FOR ANY LOSS OF BUSINESS OR INJURIES OR LOSSES TO PERSONS OR PROPERTY FROM WILLFUL, ACCIDENTAL OR MISTAKEN SUSPENSION OR DELETION OF CUSTOMER INFORMATION OR DATA.

The Customer acknowledges and agrees that in no event will Star Dot Hosting or any of its members, shareholders, directors, officers, employees or representatives (collectively, the ‘Star Dot Hosting

Indemnitees’) be liable for any special, indirect, consequential, punitive or exemplary damages, or economic damages (including but not limited to damages for loss of profits or revenues, loss of data, or loss of use) in connection with this Agreement, even if Star Dot Hosting has been advised of the possibility of such damages.

If, despite the foregoing limitations, Star Dot Hosting or any Star Dot Hosting Indemnitee should become liable to the Customer in connection with this Agreement for any reason, then in no event will the aggregate liability of Star Dot Hosting or any of the Star Dot Hosting Indemnitees exceed the amount payable by the Customer to Star Dot Hosting for one month of Services under this Agreement.

15. Indemnity

The Customer will indemnify and save harmless Star Dot Hosting and all Star Dot Hosting Indemnitees from and against all damages, losses, liabilities, fines, costs and expenses (including actual legal fees and costs), incurred by or awarded, asserted or claimed against Star Dot Hosting or any Star Dot Hosting Indemnitee in connection with this Agreement which are attributable, in whole or in part, to any negligent or willful activities or omissions of the Customer or any breaches by the Customer of its obligations under this Agreement.

16. Governing Law

This Agreement shall be interpreted in accordance with and be governed in all respects by the laws of the Province of Ontario and the laws of Canada applicable therein. The courts of Ontario shall have exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this Agreement or any alleged breach of this Agreement.

17. Customer Acknowledgement

The Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the Star Dot Hosting network or any inter-connected network by third parties. Star Dot Hosting provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with the Customer’s server and or network.

18. Electronic Commerce

The Customer is solely responsible for all aspects of its online activities, including the operation of any store or e-business. This includes, but is not limited to: a) the accuracy of statements and materials related to products and/or services offered online; b) the accuracy of accounting or billing; c) the accurate calculation and application of shipping and sales tax; d) the processing of orders, inquiries and complaints; and e) the maintaining of the confidentiality of client credit card numbers and personal information.

19. IP Addresses

Star Dot Hosting assigns IP (Internet Protocol) addresses to the Customer for its use. The Customer has no right to use IP addresses not assigned to it, to move IPs between different servers or accounts or to use IP addresses in any manner not permitted by Star Dot Hosting. Star Dot Hosting maintains control of all IP addresses that are assigned to the Customer and reserves the right to change or remove them at its sole and absolute discretion. Star Dot Hosting acknowledges that IP address changes are rare and typically made only at the request of ARIN. Also, the allocation of IP addresses is restricted by the policies of ARIN.

These policies dictate that name-based hosting must be used whenever possible. Star Dot Hosting reserves the right to periodically review IP address usage and revoke authorization to use those IP addresses not being utilized or where name-based hosting could be used.

20. Star Dot Hosting Administrative Access

Unless otherwise negotiated and included in this Agreement by way of amendment, Star Dot Hosting staff and management retain the right to administrative access to any and all servers on its network for the purposes of Datacenter, Network, Server maintenance, inventory and related activities. To facilitate this, all Star Dot Hosting servers (not co-located servers) may include a Star Dot Hosting administrative account designed for these purposes.

21. Acceptable Use Policy

The Customer shall at all times comply with the terms and conditions of the then-current version of the Acceptable Use Policy posted at www.stardothosting.com, a current copy of which is attached as Exhibit ‘B’ hereto and incorporated into this Agreement by reference. The Customer agrees that Star Dot Hosting reserves the right to amend the terms of the Acceptable Use Policy from time to time by posting a new or different version of the Acceptable Use Policy and advising Customer of same. The Customer’s continued use of Star Dot Hosting’s Services after modification of the Acceptable Use Policy constitutes Customer’s acceptance of the modifications. The Customer should relate the terms of this Acceptable Use Policy to its clients and use reasonable efforts to ensure their compliance with the terms and conditions thereof.

22. Severability and Waiver

If any provision of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, the offending provision will be severed but the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

23. Relationship of Parties

No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.

24. Legal Fees and Costs

In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to recover its actual legal fees and disbursement costs from the other party.

25. Fees and Payment

The Customer agrees to pay Star Dot Hosting monthly fees for Services provided, based on the rates identified in the Order. The Customer is fully responsible to ensure payment of any and all amounts due are paid on time. Invoices are emailed or listed in the hosting control panel or, upon request, fax or mail. Dollar amounts and costs indicated on the Invoice are in Canadian currency, unless otherwise stated. Payment for all Star Dot Hosting Services are billed and due one (1) month in advance.

25.1 Billing Information – The Customer is responsible for keeping its contact and billing information up-to-date and accurate, including but not limited to a properly functioning and reachable email address and telephone number. Star Dot Hosting shall not be held liable if the Customers account is suspended or terminated because of Star Dot Hosting’s inability to contact the Customer due to incorrect contact or billing information.

25.2 Overdue Accounts – Overdue accounts may, at the discretion of Star Dot Hosting, be suspended. After a period of 72 hours, suspended accounts may be terminated at the discretion of Star Dot Hosting unless payment is received in full or alternative, suitable arrangements are made with Star Dot Hosting. A minimum $25 reconnection fee will be charged on all accounts reconnected after being suspended. Returned checks and declined credit cards will also be charged a $10 NSF fee.

If an account is terminated, there is NO possibility that it can be restored or its data recovered. Star Dot Hosting shall not be liable to the Customer or any other third party for any consequences of a Customer’s account being terminated.

25.3 Other Charges – The Customer will pay all sales, excise and other value-added taxes, duties or levies of any kind whatsoever imposed by any authority, government agency or commission in connection with Star Dot Hosting’s Services as provided under this Agreement. The Customer is also responsible for collecting and remitting any such taxes, duties or levies from end users of the Customer’s products and services.

Star Dot Hosting reserves the right to charge the Customer a standard hourly rate of $125/hour CDN to cover the resolution of excessive or unusual problems or complaints.

25.4 Cancellation Policy – Customer is responsible for all costs over the entire term of the agreement. These costs may be paid monthly, quarterly, semi-annually, or annually. If Customer cancels their service before the end of the Initial or Renewal Term then the remaining, unpaid costs for the agreed Term are due immediately. At least 30 days before the end of the Initial or Renewal Term of the Agreement, the Customer may submit a Cancellation Form informing Star Dot Hosting they do not with to Renew the Agreement with Star Dot Hosting. This form can be requested by emailing billing@stardothosting.com. There are no partial refunds or credits for early cancellations. All payments to Star Dot Hosting are final and non-refundable except as otherwise set out herein.

26. General

This Agreement contains the entire understanding between Star Dot Hosting and the Customer with respect to the Services described in the Order. This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Star Dot Hosting and the Customer. The Customer acknowledges and agrees that all of its rights relating to Star Dot Hosting’s Services are as set forth in this Agreement and hereby waives all other rights that it may have by implication of law or otherwise.

EXHIBIT ‘A’ – Electronic Order Form

This is the form used at secure.stardothosting.com to submit your order to Star Dot Hosting

EXHIBIT ‘B’ – Acceptable Use Policy

http://www.stardothosting.com/legal/acceptable-use-policy