Epic Works : Company : Policies : Hosting Terms Of Service

This Policy is effective on March 1st, 2012

HOSTING AGREEMENT

This Agreement is entered into this 1st day of March, 2012 ("Effective Date") by and between Epic Works Ltd. (the "Company") and the Customer ("Customer").

WHEREAS Company is in the business of hosting websites for small and medium sized businesses;

AND WHEREAS Customer wishes to engage Company to host its website;

NOW THEREFORE in consideration of the mutual covenants and promises herein set forth, the parties agree as follows:

Article 1. Scope

1.1 Hosting Services. Company shall perform the hosting services described (the "Hosting Services") in the SOW attached as Exhibit A (the "Hosting SOW") in accordance with the service description contained therein, the service levels set out in the Service Level Agreement attached as Exhibit B (the "SLA") and the terms and conditions of this Agreement. Any resources or requirements required by Company in order to perform the Hosting Services will be included in the Hosting SOW.

1.2 SOWs. Company will provide such additional services as Customer may request pursuant to a written SOW which must be signed by Company and Customer in order for the SOW to be binding. For the purposes of this Agreement, "Services" includes the Design Services, the Hosting Services and any additional services pursuant to any additional SOW.

1.3 Conflict. In the event of a conflict between any terms of this Agreement and the SLA or any SOW, the terms of the SOW, as the case may be, shall prevail.

1.4 Deliverables. Company shall deliver to Customer on or before the deadlines or milestones, all Deliverables. "Deliverables" shall mean the specific services, work, programs, software, designs or technology that are provided by Company to Customer as a result of performing the Services which are identified in any SOW.

1.5 Relationship with Customers. Company will deal only with Customer on matters relating to any SOW. Discussions and meetings with Customer's customers require Customer's prior consent and shall be limited to obtaining or confirming information for purposes of performing Services. Company shall discuss any decisions related to project performance, status or any issue affecting the applicable SOW with Customer prior to any discussion with any customer of Customer.

1.6 Change Order Process. Either party may request in writing certain additions, deletions or modifications to the scope or nature of the Services (all referred to hereinafter as "Changes"). Company shall have no obligation to commence work in connection with any Change until the fee and/or schedule impact of the Change is agreed upon in a written change order SOW signed by both Company and Customer. Upon a request for a Change by Customer, Company shall submit a proposal to Customer describing the Changes, including, as applicable, the impact of such Changes on schedule, fees and expenses. Within five (5) days of receipt of the proposed change SOW, Customer shall either indicate its acceptance of the proposed Changes by signing the change SOW or advise Company not to perform the Changes, in which event Company shall proceed with the original Services. Notwithstanding the foregoing, if Company, at the request of or with approval from Customer, performs work that is not covered by an Attachment or that exceeds the scope of Services described in any Attachment, such work shall be deemed Services provided pursuant to this Agreement, for which Customer shall compensate Company at the same applicable rates as those described for similar Services. In the event any requested Change affects the work being completed by Company pursuant to the SOW, including having to wait for approval of the requested Change, Company may extend any deadlines as necessary. Additional work or Changes approved by Customer may extend the timeline for delivery of the new Deliverables unless stated otherwise in the new SOW.

1.7 Company Services and Responsibilities. Company agrees to provide the Services in a timely and competent manner consistent with the terms and conditions of the relevant SOW in order to meet the specific Deliverables set out in any SOW. Company may use subcontractors to provide the Services.

1.8 Client Responsibilities.

(a) In connection with Company's provision of the Services, Customer will perform the tasks, furnish the personnel, provide the resources, or undertake the responsibilities specified in any SOW ("Customer Responsibilities"). As a prerequisite to Company's delivery of any Services, Customer shall (i) fulfill the Customer Responsibilities and ensure that all assumptions provided by it pursuant to any SOW ("Assumptions") are accurate; (ii) in a timely fashion provide Company with reliable, accurate and complete information, as required; (iii) make timely decisions and obtain required management approvals in a reasonable period of time; and (iv) furnish Company personnel with a suitable office environment and adequate resources and supplies, as needed.

(b) Except as expressly agreed otherwise, Customer shall be solely responsible for:

(i) determining the existence of, and complying with, any and all of the following that are applicable to electronic transactions, commerce, processes, or activities conducted over the Internet or any electronic network (collectively, "Transactions"): import/export controls; requirements to obtain and maintain licenses or other permissions; requirements to assess, pay, or withhold taxes, customs duties, or other charges; and other laws or regulations in all applicable jurisdictions;

(ii) the security of its network and any related systems, including the security, privacy and confidentiality of any Customer or third party data, intellectual property, or other information;

(iii) for producing requirements in conformance with Personal Information Protection and Electronic Documents Act ("PIPEDA") or applicable privacy legislation;

(iv) any content contributed by Customer or a third party in connection with the projects covered by this Agreement;

(v) any use by Customer of the Deliverables including, but not limited to: Customer's posting to its website, or transmission over the Internet of text, images, software, music, video or other information; Customer's sale or offering for sale of any goods and services via its website or otherwise over the Internet; and any linking, framing or distribution of unsolicited electronic mail in connection with Customer's website which is illegal, unlawful, harassing, which infringes another's intellectual property rights or which otherwise constitutes network abuse ("Misuse").

(c) Customer agrees to comply with Company's acceptable use policy which specifies those actions prohibited by Company to any users of its network. Company reserves the right to modify such policy at any time, effective upon posting the modified policy to this URL:http://www.epicworks.com/company/policies/aup/. Customer should consult this document regularly to ensure that is activities conform to the most recent policy. In the event of any conflict between this Agreement and the policy, the terms of the policy will govern.

(d) Customer will not use any of the Services provided by Company for any unlawful purpose including the transmission, distribution or storage of any material in violation of any applicable law or regulation including any material which is obscene, defamatory, constitutes an illegal threat, is pornographic or constitutes a casino.

(e) Customer shall not commit any violations of system or network security.

(f) Customer shall not send unsolicited mail messages via Company or a third party including commercial advertising and informational announcements or be knowingly mentioned or advertised in the unsolicited mail of others.

1.9 Services Assumptions.

(a) Customer acknowledges that the Services, Deliverables, fees and delivery schedule for each project covered by this Agreement are based upon the Assumptions specified in the SOWs, which are based on representations or information supplied by Customer.

(b) Customer acknowledges that Company's delivery of the Services and the fees charged are dependent on (i) Customer's timely and effective completion of the Customer Responsibilities, (ii) the accuracy and completeness of the Assumptions, and (iii) timely decisions and approvals by Customer's management. Customer shall be responsible for any delays, additional costs or other liabilities caused by or associated with any deficiencies in the Customer Responsibilities or Assumptions.

(c) Customer transferring its domain to another host provider or domain expiry does not constitute cancellation of the Hosting Services being provided by Company. Customer must notify Company to formally cancel its account with Company to avoid further charges hereunder. Any transfer or cancellation of a hosting account requires a person in authority with the Customer and known to Company to authorize such change with Company.

(d) Company does not guarantee 100% availability in respect of its hosting services and hereby advises Customer there will be down time due to scheduled maintenance and matters beyond the control of Company, provided Company accepts responsibility to give the credits set out in the SLA in the event that service levels set out therein are not achieved.

(e) It is the responsibility of Customer to maintain their own backups of site content, data, and logs.

Article 2. Term & Termination

2.1 This Agreement shall remain in effect for such time as Company is providing Hosting Services or any other Services.

2.2 The pricing of the Hosting Services set out in Exhibit A is based upon an initial term of at least one year. Either party may terminate the Hosting Services by providing notice at least 30 days prior to the expiry of the initial year or any subsequent renewal.

2.3 If Customer terminates any additional Services (excluding the Hosting Services) prior to completion of such Services, then Customer shall pay Company a reasonable pro rata amount of the applicable fees based upon the percentage of such other Services that has been performed by Company. Customer must provide Company with written notice of such termination.

2.4 Survival. The expiration or termination of this Agreement shall not supersede the parties' obligations with respect to Intellectual Property Rights (Article 5), Confidential Information (Article 6), Warranty (Article 7), Indemnification (Article 8), Limitation of Liability (Article 9).

Article 3. Security and Safety Procedures

3.1 Company will provide the Services under this Agreement at its location unless otherwise mutually agreed upon in the SOW. While on any other site mutually agreed upon by the parties, Company shall observe all security and safety procedures of that location. Company agrees that all Services performed for Customer shall be entirely within the Company's responsibility.

Article 4. Payment

4.1 Terms. All payments due Company shall be expressly stated in the SOW. Company shall invoice Customer for the Services as set forth in the SOW. Payment is due within thirty (30) days of receipt of an undisputed invoice for hosting services or within fifteen (15) days of receipt of an undisputed development invoice. Should any amount owing remain unpaid after its respective due date, interest shall be paid thereon by Customer at a rate of 1.5% per month compounded monthly. Any "NSF" cheque or reversed credit card payment will result in a $25 return charge and the account will be immediately considered in default.

4.2 Taxes. Fees do not include, and Customer agrees to pay, any taxes arising out of the Agreement, other than those on Company's net income, including all sales, use, excise, utility, gross receipts and value added taxes and other similar tax-like charges levied by Canada or United States or any Province or State therein, respectively, against or upon the Services or any component thereof, or otherwise arising out of this Agreement.

Article 5. Intellectual Property Rights

5.1 Deliverables. Unless specifically stated otherwise in a SOW, Company shall retain all right, title and interest in and to all intellectual property rights in the Deliverables developed by Company in the course of providing Services pursuant to this Agreement, including (i) custom development, reports and enhancements; and (ii) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how embodied in the Deliverables or that Company may develop or supply in connection with this Agreement including patents, copyright, trade names, trade marks, trade secrets and other intellectual property (the "Company Knowledge"). Customer hereby assigns to Company, its successors and assigns, any invention together with the right to seek protection by obtaining patent or other intellectual property rights therefor and to claim all rights of priority thereunder, and the same shall become and remain Company's property whether or not such protection is sought.

5.2 Representations. Company represents and warrants the originality of the Deliverables prepared for or submitted to Customer under this Agreement and that no portion of such items, or their use or distribution violates or is protected by any patent, copyright or similar right of any third party.

5.3 Use of Deliverables. Customer may, solely for its internal business purposes, use, copy, distribute internally, and modify the Deliverables. Except as provided herein, Customer may not use the Deliverables for any other purpose including granting rights to any other party to use such Deliverables.

Article 6. Confidential Information

6.1 Definition. For purposes of this Agreement, "Confidential Information" shall mean any information and data of a confidential nature, including but not limited to proprietary, technical, developmental, business plan, marketing, sales, operating, performance, cost, know-how, business and process information, computer programming techniques, and all record-bearing media containing or disclosing such information and techniques, which is disclosed by one party to this Agreement ("Disclosing Party") to the other party ("Receiving Party") pursuant to this Agreement. Confidential Information shall also include any samples, models or prototypes or parts thereof.

6.2 Nondisclosure. For a period ending three (3) years after the date of termination of this Agreement, the parties agree to hold each other's Confidential Information in strict confidence and not to disclose it to any third party without the prior written consent of the Disclosing Party. The parties agree to use such Confidential Information of the Disclosing Party only as it relates to the performance of the party's obligations under this Agreement. Further, the Receiving Party shall use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party; provided, however, that the foregoing restriction shall not apply to information that is (a) known to the Receiving Party without restriction when received or thereafter developed independently by the Receiving Party; (b) obtained from a source other than the Disclosing Party through no breach of confidence by the Receiving Party; (c) in the public domain when received or thereafter enters the public domain through no fault of the Receiving Party; (d) provided by the Disclosing Party without restriction; or (e) disclosed by the Receiving Party pursuant to statute, regulation, or the order of a court of competent jurisdiction, provided that the Receiving Party has notified the Disclosing Party in order to permit the taking of appropriate protective measures.

6.3 Copying. The Receiving Party shall not copy the Disclosing Party's Confidential Information without the prior written consent of the Disclosing Party. All copyright notices and other proprietary legends shall be reproduced on all copies in the same form in which they appear on the original. Upon termination or expiration of this Agreement, all copies together with the originals shall either be returned to the Disclosing Party or destroyed by the Receiving Party. Confidential information stored on Company's hosted servers may be archived by Company for backup purposes at its discretion.

6.4 Injunctive Relief. Each party acknowledges that disclosure of any confidential material by the other could give rise to irreparable injury to such party and that such injury may be inadequately compensable in damages. Accordingly, each party may seek to obtain injunctive relief against the breach or threatened breach of the foregoing undertakings. This relief shall be exclusive of, and in addition to, any other legal remedies available.

Article 7. Warranty

7.1 Performance. Company warrants and represents that the Services will be performed in a professional manner in accordance with the highest industry standards. Company further warrants and represents that the Deliverables shall be free from material defects and errors, shall conform to the SOW and any functional specifications. Company shall, within 24 business hours of notification by Customer, re-perform any work not in compliance with this standard failing which notification will be provided immediately with a valid reason and a delivery timeline. In the event Company breaches this section, the damages for breach of this section shall be the replacement cost of the Deliverable. Company does not warrant and is not responsible for any third party products or services including, but not limited to, bugs in the development language or engines used to build and operate the web site, including those introduced by newer updates to such software packages. Customer's sole and exclusive rights and remedies with respect to any third party products or services are against the third party vendor and not against Company. Company is not responsible for, and shall have no liability arising out of or relating to:

(i) the performance, reliability, availability, or security of the Internet or any Customer or third party system or hardware which is not within the scope of the Services and Deliverables for which Company is responsible; or

(ii) performance issues arising as a result of the Deliverables being modified by a third party or the Customer.

7.2 Limits. THE PRECEDING ARE COMPANY'S ONLY WARRANTIES CONCERNING THE SERVICES AND ANY DELIVERABLES, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE.

Article 8. Indemnification

8.1 Company Indemnity. Company, at its own expense, shall defend, indemnify and hold harmless Customer, its subsidiaries and affiliated companies and their partners, agents, directors, officers and employees from and against any loss, claim, damage or liabilities (or any actions in respect thereof that may be asserted by any third party) that may arise out of or are related to performance or nonperformance of the Services or any use by Customer of any Deliverable including any tort claims for personal injury or property damage. Company will reimburse Customer for all expenses (including reasonable legal fees) as incurred by Customer in connection with any such action or claim.

8.2 Customer Indemnity. AS COMPANY IS PERFORMING THE SERVICES SOLELY FOR THE BENEFIT OF CUSTOMER, CUSTOMER WILL INDEMNIFY COMPANY, ITS AFFILIATES AND THEIR SUBCONTRACTORS, PARTNERS, PRINCIPALS AND PERSONNEL AGAINST ALL COSTS, FEES, EXPENSES, DAMAGES AND LIABILITIES (INCLUDING DEFENSE COSTS) ASSOCIATED WITH ANY THIRD PARTY CLAIM, RELATING TO OR ARISING AS A RESULT OF:

8.2.1 THE SERVICES SPECIFICALLY REQUESTED BY CUSTOMER (INCLUDING ANY INFORMATION OR MATERIALS PROVIDED BY CUSTOMER TO COMPANY TO PERFORM THE SERVICES);

8.2.2 CUSTOMER'S USE OF THE DELIVERABLES SPECIFICALLY REQUESTED BY CUSTOMER;

8.2.3 AS A RESULT OF ANY MISUSE; OR

8.2.4 TO THE EXTENT CAUSED BY THE NEGLEGENT OR WILLFUL ACTS OR OMMISSIONS OF CUSTOMER'S PERSONNEL OR AGENTS.

8.3 Legal Limits. THE PROVISIONS OF THIS ARTICLE 8 ARE INTENDED TO APPLY IN ALL CIRCUMSTANCES, REGARDLESS OF THE GROUNDS OR NATURE OF ANY CLAIM ASSERTED (INCLUDING CONTRACT, STATUTE, ANY FORM OF NEGLIGENCE, WHETHER OF CUSTOMER, COMPANY, OR OTHERS, TORT, STRICT LIABILITY OR OTHERWISE), AND WHETHER OR NOT ANY LIABILITY ARISES AS A RESULT OF A BREACH OF A FUNDAMENTAL TERM OR CONDITION, AND WHETHER OR NOT THE PARTY SEEKING INDEMNIFICATION WAS ADVISED OF THE POSSIBILITY OF THE DAMAGE OR LOSS ASSERTED, TO THE EXTENT NOT CONTRARY TO APPLICABLE LAW.

8.4 Time Limits. Any action against Company or Customer must be brought within eighteen (18) months after the cause of action arises.

8.5 Other Limits. Customer acknowledges that: (i) Company and Customer may correspond or convey documentation via Internet e-mail unless Customer or Company expressly requests otherwise, (ii) neither party has control over the performance, reliability, availability, or security of Internet e-mail, and (iii) Company shall not be liable for any loss, damage, expense, harm or inconvenience resulting from the loss, delay, interception, corruption, or alteration of any Internet e-mail due to any reason beyond Company's reasonable control.

Article 9. Limitation of Liability

9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES DUE TO LOST PROFITS OR LOSS OF GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY'S LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNTS RECEIVED BY COMPANY UNDER THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT BOTH PARTIES' LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT.

Article 10. Termination

10.1 For Cause. Either party may, upon giving thirty (30) days written notice identifying specifically the basis for such notice, terminate this Agreement, the SLA or any SOW hereunder for breach of a material term or condition of this Agreement or the applicable SOW as the case may be, provided the breaching party shall not have cured such breach within the thirty (30) day period. Non-payment by Customer of amounts owing pursuant to this Agreement on dates due may result in Company suspending providing all or any of its services pursuant to this Agreement until payment in full is received.

Article 11. Dispute Resolution

11.1 In the event of a dispute or alleged breach, the parties will work together in good faith, first to resolve the matter internally by escalating it to higher levels of management before resort to litigation. Nothing in this Article restricts the right of either party to apply for injunctive relief at any time.

Article 12. Miscellaneous Provisions

12.1 Notices. All notices permitted or required hereunder shall be deemed to have been given when mailed first class, registered or certified mail, with postage prepaid, to the party's last known address. Customer shall keep company informed of its most recent contact information including contact name, phone number, fax number, email and address as applicable including providing notice of changes thereof.

12.2 Assignment. Neither party may assign any of its rights hereunder without the prior approval of the other party.

12.3 Governing Law and Forum. This Agreement shall in all respects be governed by Ontario law, without reference to conflicts of laws principles. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections to, the jurisdiction of the courts of Ontario in any litigation arising out of the Agreement.

12.4 Force Majeure. Neither party shall be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including loss of data or corruption of data beyond the reasonable control of either party for any reason. In the event of the happening of such a cause, the party whose performance is so affected will give prompt, written notice to the other party, stating the period of time the same is expected to continue. Such delay will not be excused under this Section for more than 30 days.

12.5 Complete Agreement. This Agreement and properly executed SOWs or other attachments hereto sets forth the entire understanding of the parties and supersedes all prior or contemporaneous representations, communications, agreements and understandings, written or oral, with respect to the subject matter hereof. This Agreement shall not be amended or modified except in writing signed by authorized representatives of each party.

12.6 Company's Personnel. Personnel supplied by Company will be deemed employees of Company and will not for any purpose be considered employees or agents of Customer. Company assumes full responsibility for the actions of such personnel while performing Services pursuant to SOWs issued hereunder, and shall be solely responsible for their supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), worker's compensation, disability benefits and the like. Company will have an appropriate agreement with each of its employees, or others whose services Company may require, sufficient to enable it to comply with all of the terms of this Agreement.

12.7 Language. The undersigned have expressly requested that this document be drawn up in the English language. Le(s) soussigné(s) at(ont) expressément demandé que ce document soit rédigé en langue anglaise.