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 Carefully read the following terms and conditions of this agreement. By accessing and using the web hosting and electronic commerce services and associated software of Funio Web Hosting Inc. (“Funio”), you (“Customer”) indicate the acceptance of the following terms and conditions and you agree to be bound by them. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE FUNIO WEB HOSTING AND ELECTRONIC COMMERCE SERVICES.
This agreement constitutes the complete and exclusive statement of the agreement between you and Funio with respect to the Funio web hosting services and SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, oral or written, and any other communications relating to the subject matter of this agreement.
Now, therefore, in consideration of the mutual covenants set forth herein, Funio and Customer agree as follows:
1. Order Acceptance, Payment.
A. All orders are subject to acceptance by Funio. An order will be deemed accepted by Funio when Funio sends written confirmation or electronic mail (E-mail) of the order to Customer.
B. Funio shall charge Customer’s credit card for the applicable set-up fees and monthly fees according to the Package(s) (as defined below) selected by Customer and provided by Funio. Such fees and charges shall include, without limitation, the fees for bandwidth used, and any other fees which are associated with the use of the service. Funio reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to Customer. Customer must provide Funio with a valid credit card number to which Funio will automatically charge all Funio fees as they become due.
2. Funio Services.
A. During the term of this Agreement, Funio shall provide web hosting services to Customer according to the Package(s) accepted by Customer (the “Funio web hosting services”). “Package” means one of Funio's business and/or electronic commerce service offerings, as can be found on Funio’s Web site at http://www.funio.com. The specific Package to be provided to Customer shall be established by correspondence between Funio and Customer. Such Package shall be deemed incorporated by reference into this Agreement, as if fully set forth herein. Funio and Customer shall retain copies of such Package(s) for future reference.
B. At Customer’s request, Funio will acquire an Internet Second-Level Domain Name (“Domain Name”), from the Contracted Registrar on behalf of Customer. Customer’s request for and/or acceptance of a Domain Name obtained by Funio shall in all cases constitute Customer’s waiver of any and all claims which Customer may have, or which may later arise, against Funio or its third party providers, for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the Domain Name. Any cost incurred by Funio to obtain and/or maintain the Domain Name on behalf of Customer shall be charged to Customer by Funio. Request for and acceptance of a domain name requires Funio to supply the domain name to the Contracted Registrar, which in turns supplies the Domain Name to third parties. Funio will be the sole billing and technical contact for the Domain Name.
3 . Rules and Regulations.
From time to time Funio may impose reasonable rules and regulations regarding the use of the Funio Services. Such rules and regulations are called acceptable use policies and are posted on Funio’s web site at http://www.funio.com/Legal/Usage. All such acceptable use policies are incorporated by reference into this Agreement as if fully set forth herein.
4 . License Grant.
During the term of this Agreement, Funio grants to Customer a non-exclusive, personal, non-transferable license to access and use the Funio Services solely on and as part of Funio’s World Wide Web site and servers. Funio may modify the Funio Services at any time for any reason and may provide modified versions of the Funio Services to Customer.
5 . Intellectual Property Rights.
Customer acknowledges and agrees that the Funio Services constitute confidential and proprietary information of Funio and its licensors and embodies trade secrets and intellectual property of Funio and its licensors protected under Canadian copyright and other laws and international treaty provisions. Customer further acknowledges that all right, title, and interest in and to all parts of the Funio Services, including, without limitation, associated intellectual property rights, are and shall remain with Funio and its licensors. Customer shall not, and shall cause its employees and agents not to, disclose or transfer any portion of the Funio Services to any third party. Customer further agrees not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the Funio Services. Customer hereby acknowledges that, if Funio at any time or from time to time performs any customizations or modifications to Funio Services, all rights and interests to such customizations or modifications shall be the sole property of Funio.
6 . Term and Termination.
A. This Agreement shall have an initial term of one (1) month or twelve (12) months (determined at the time of sign-up) and shall thereafter automatically renew for the same period of time. This Agreement and Customer’s access to the Funio's Services shall terminate as follows: (i) Either party may terminate upon thirty (30) days prior notice; (ii) Funio may immediately and without prior notice terminate upon a violation by Customer of Funio’s acceptable use policies; (iii) Inet-Technologies may terminate immediately and without prior notice in accordance with Section 1; and (iv) Funio may terminate immediately if, after 15 days prior notice to Customer, Customer has failed to correct any breach of this Agreement.
B. Upon any termination in accordance with Section 6(A)(i), Funio shall permit Customer forty-eight (48) hours to download or otherwise copy any of Customer’s information and data residing on Funio’s facilities (at Funio's sole discretion) prior to removing such information and data from Funio’s facilities. Upon termination by Funio under Sections 6(B)(ii), (iii) or (iv), Funio may immediately remove all of Customer’s data and information from Funio’s facilities and Customer shall have no right to copy or download such data or information, and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of Funio. In cases where Customer’s account has been cancelled, and Customer is requesting reactivation, Funio, at it’s option, may reactivate the same account, only if the account had been cancelled less than sixty (60) days prior. After sixty (60) days, Customer will be required to set up a new account.
C. To cancel a Funio web hosting, domain name services or electronic commerce services, Customer should call the Funio toll-free number at 1-866-888-FUNIO (3864) or send a request via mailH2Y 2R6 Canada, Attention: Web Hosting Cancellations. For assurance of delivery, Funio recommends that requests for cancellation are sent via certified mail.
D. All relevant sections shall survive any termination of this Agreement.
7 . Exclusion of Warranties.
Funio PROVIDES THE Funio SERVICE ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
While Funio makes reasonable efforts to maintain the Funio service, many factors are not within Funio’s control. Therefore, Funio does not warrant, and is not responsible for (even if caused by the negligence of Funio) any loss of data, delays, non-delivery or misdelivery of information, lack of access, slows response time, or service interruptions or errors. Loss, delay or non-delivery of data can be due to but not limited to Funio’s own negligence, viruses or other third parties. Customer’s data is defined as any data held by Funio and includes account information, web hosting data, email and domain name services. This disclaimer and waiver shall apply equally to any and all third party providers. Funio provides no warranty to customer regarding the accuracy of usage statistics, which Funio may provide in its discretion. Further, no advice or information given by an Funio representative shall create a warranty or serve as an amendment to this agreement.
Funio has the right to change prices, or add or delete product features of any existing product or service. The right to change products or services extends to any software supporting a product or service. Funio reserves the right to change prices or material features at any time upon 30 days prior notice. Funio reserves the right to institute new fees or new material features at any time upon 30 days prior notice. Funio has the right to discontinue products or services and the right to remove or reassign IP addresses of a customer’s web site. Funio also has the right to deactivate a customer’s service with a thirty (30) day notice. Except for certain products and services specifically identified as being offered by Funio, Funio does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you. Funio has no control over and accepts no responsibility for such materials. You assume full responsibility and risk for use of the services and the Internet and are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet.
8. Limitation of Liability and Damages.
THE TOTAL AGGREGATE LIABILITY OF Funio TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID TO Funio BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH Funio IS LIABLE TO CUSTOMER. IN NO EVENT SHALL Funio BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT, TORT, OR OTHERWISE AND WHETHER OR NOT Funio HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Confidentiality.
Customer acknowledges that by reason of its relationship with Funio, it may have access to certain information and materials relating to Funio’s business, customers, software technology and marketing which Funio treats as confidential (collectively “Confidential Information”). Customer shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of Funio; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
10. Indemnification.
Customer shall indemnify and hold Funio harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney’s fees and expenses that Company may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement (including reasonable attorney’s fees) and for any act or omission of Customer or its clients which are in any way related to the Funio Service.
11. Force Majeure.
Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
12. Miscellaneous.
Customer may not assign its rights or delegate any of its duties under this Agreement without our prior written consent of Funio, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of partners or joint ventures. Funio may subcontract any work, obligations or other performance required of Funio under this Agreement without consent of Customer. Other than the termination of this agreement, all notices provided hereunder sent by email, mail or certified mail to Funio, will be effective upon transmission. Funio has the right to amend the Agreement from time to time, and will do so by posting the new Agreement on the Funio web site under the Terms and Conditions at the Policies and Agreements page. The Agreement shall be governed by the laws of the province of Quebec, Canada without giving effect to applicable conflict of laws provisions. You consent to the personal jurisdiction of such courts sitting in Quebec with respect to such matters or otherwise between you and Funio, and waive your rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either Party in connection with this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to recover from the other Party all costs, attorneys' fees and other expenses incurred by such prevailing Party in such litigation.
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