MANAGED SERVERS, DEDICATED SERVERS, COLOCATION AGREEMENT
THIS AGREEMENT applies to all services between UltraHosting Inc. (“UltraHosting”) and its customers including services through a third party or other partner. By subscribing to UltraHosting services, you explicitly agree to the terms of this agreement.
1. GENERAL.
a. Complete Agreement. This Agreement is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals and agreements, oral or written, between the parties. No agreement created hereunder may be modified except by a written instrument duly executed by the parties hereto.
b. Severability and No Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the spirit and intent of the invalid provision. The waiver by either party of a breach of any provision of this Agreement formed hereunder will not operate or be interpreted as a waiver of any other or subsequent breach.
c. Governing Law, Jurisdiction and Venue. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the Province of Ontario, Canada without regard to conflict or choice of laws provisions. Any action or proceeding arising out of or related to this Agreement shall be brought only in the courts of such jurisdiction. The parties hereby consent to such jurisdiction and venue.
d. Allocation of Risk. Customer acknowledges and agrees that the fees charged by UltraHosting in this Agreement reflect an allocation of risk between the parties, including, but not limited to, the limitation of liability and exclusion of remedies described in this Agreement. A modification of the allocation of risks set forth in this Agreement, would affect the fees charged by UltraHosting, and in consideration of such fees, Customer agrees to such allocation of risk.
e. Force Majeure. UltraHosting shall be excused from performance and shall not be liable for any delay in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of UltraHosting or its subcontractors or suppliers including, but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of god, or shortage of labour or fuel or raw materials.
2. Delivery of Services.
f. Service Delivery. Service Delivery. All services are delivered from an UltraHosting data centre. Target delivery timeframe is 3 business days from order acceptance. The customer will receive a confirmation with planned delivery timeframe after order placement.
g. Service Levels. Services will be delivered with target timeframes and performance as set forth in the Service Level Agreement, as amended.
3. CUSTOMER RESPONSIBILITIES.
h. Co-operation. Customer shall co-operate with and assist UltraHosting by providing to UltraHosting such information as UltraHosting may reasonably request. All such information and access will be considered Customer’s responsibility, the timely, complete and accurate performance of which is a condition precedent to UltraHosting meeting its timelines.
i. Software Licensing. Customer shall comply with all manufacturers’ software licensing rule. Customer acknowledges that any Microsoft Windows licensing being provided by UltraHosting is Microsoft’s “anonymous” version of this software and subject to the licensing restrictions of these Operating Systems.
j. AUP. Customer shall comply with and shall take all reasonable steps to ensure compliance with all reasonable restrictions and conditions on Customer’s use of the Services including as set forth in the AUP, as amended and shall cooperate with UltraHosting in the event of any suspected violation of the AUP.
k. Security and Data Back Up. Customer shall use reasonable security precautions with respect to use of the Services and shall create and maintain a current copy of all content (including software, data or other information) stored on Customer’s UltraHosting servers or otherwise provided to UltraHosting and store the copy in a secure location.
4. PAYMENTS.
l. Fees. The monthly, set up and other fees for UltraHosting Services shall be as described in the applicable Managed Hosting Service Schedule.
m. Taxes. In addition to the fees described in the Managed Hosting Service Schedule, Customer shall be responsible for paying any applicable sales, use, excise, value added, or similar sales taxes or assessments imposed upon the Services provided hereunder by any federal, provincial/state, or local government authority, exclusive of any taxes based upon UltraHosting’s income or payroll.
n. Payment Terms. UltraHosting will invoice Customer in accordance with the payment schedule specified in the Managed Hosting Service Schedule. All invoices shall be processed on the due date via the customer’s credit card.
o. Refund Policy. Any prepayment is a commitment to services that cannot be refunded outside of termination for cause.
p. Credit Authorization. The customer hereby gives consent and authorization for UltraHosting to obtain financial, credit and related information for the purpose of assessing the customer’s credit worthiness.
5. TERM AND TERMINATION.
q. Term. This Agreement shall commence on the server installation date and continue for the term set out in the service order. If the term is not stated, the term will be one month. At the end of the initial term, the agreement will be automatically renewed for one month periods until terminated by either party.
r. Termination. Either party may terminate this Agreement, upon the occurrence of a material breach by the other party, which material breach has not been cured within ten (10) after receipt of written notice thereof by the breaching party from the other, unless the cause for termination is failure to pay, in which case this Agreement may be terminated if the non-payment has not been cured within five (5) days’ after receipt of written notice, excluding amounts contested in good faith. In the event of termination, Customer shall pay UltraHosting for all Services performed up to the date of termination and for any Third Party Products it has ordered on behalf of Customer, such payment not being due until delivery of the Third Party Products.
s. Customer Breach. Customer acknowledges that the fees including recurring fees for Services are based on Customer agreeing to pay the fee for the entire initial term of the Service. If UltraHosting terminates this Agreement or any Managed Hosting Services Schedule due to Customer’s material breach or Customer terminated for any reason other than UltraHosting’s material breach, Customer shall:
i. immediately pay to UltraHosting as liquidated damages and not as penalty the total of all sums due during the term of the applicable Managed Hosting Services Schedule, including the monthly recurring fee for the remaining period of the initial term ; and
ii. reimburse UltraHosting in full for any costs, losses, expenses or damages UltraHosting reasonably incurs as a result of the termination.
iii.  if service is terminated due to late payment of invoices, UltraHosting may choose to reinstate the service on the payment of all outstanding amounts plus a $25 administration fee.
Refund Policy:  It is the responsibility of the customer to read and understand the terms and conditions of the service prior to purchasing.  All payments are non-refundable after order.  Service Credits may be requested if any services do not meet our SLA commitments.
Chargeback policy:  If the customer feels there are erroneous charges from UltraHosting, a request for refund should be sent to our billing department.  Any chargebacks are subject to a $25 administrative fee.
6. SERVICE CHANGES.

t. Term. This Agreement shall commence on the server installation date and continue for the term set out in the service order. If the term is not stated, the term will be one month. At the end of the initial term, the agreement will be automatically renewed for one month periods until terminated by either party.
u. Service Downgrades. A service downgrade may only take affect on an anniversary date.
v. Bandwidth and Overage Charges.
i. Unmetered Bandwidth. Your selected level of bandwidth will be limited to the port speed of the network switch. You will not accrue bandwidth overages charges as you will not be able to exceed the allotted bandwidth amount. Please note that throughput speed is not guaranteed for the unmetered bandwidth servers.
ii. Metered Bandwidth. On our metered bandwidth service you purchase specific amount of bandwidth. UltraHosting will calculate your bandwidth use each month based on your 95th percentile usage and convert the total to GB used.
Example: Assume you have purchased 1,000GB of bandwidth. 3Mbps measured as 95th percentile equals approximately 1,000GB total data transferred. If your 95th percentile is below 3Mbps you will not be charged. If you have exceeded the allotted bandwidth, you will be charged $.25 per GB over the allotted amount.
7. CONFIDENTIALITY AND PRIVACY.
w. Confidential Information. The parties acknowledge that it will be necessary for each of them to disclose or make available to each other information and materials that may be confidential or proprietary or may contain valuable trade secrets, and that such information may already have been disclosed prior to the Effective Date (collectively the “Confidential Information”). Prior to disclosure, the disclosing party shall designate all Confidential Information by marking the information with the word “Confidential” or similar wording.
x. Non-Disclosure. Both during and after the Term of any agreement formed hereunder each of the parties agree:
i. to use commercially reasonable efforts to protect the Confidential Information of the other party from unauthorized use or disclosure and to use at least the same degree of care with regard thereto as it uses to protect its own Confidential Information of a like nature;
ii. to use and reproduce the Confidential Information of the other party only as permitted under this Agreement or as needed to perform its duties hereunder; and
iii. is furnished to others by the disclosing party without restriction on disclosure;
iv. can be shown by the receiving party to have been independently developed by such party prior to the execution of this Agreement; or
v. is required to be disclosed by law, or to a competent court, government or regulatory body having the right to same.
y. Exceptions. Information will not be considered to be Confidential Information if it:
i. is already, or otherwise becomes, publicly known by third parties as a result of no act or omission of the receiving party;
ii. is lawfully received, after disclosure hereunder, from a third party having right to disseminate the information without restriction on disclosure;
iii. is furnished to others by the disclosing party without restriction on disclosure;
iv. ccan be shown by the receiving party to have been independently developed by such party prior to the execution of this Agreement; or
v. is required to be disclosed by law, or to a competent court, government or regulatory body having the right to same.
z. Injunctive Relief. The parties agree that any breach by either party or any of its officers, directors, or employees, of any provisions of this Section 6 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies at law or in equity.
INTELLECTUAL PROPERTY
Each party acknowledges and agrees that the other party retains full ownership and rights to its trade secrets, inventions, copyrights and other intellectual property and that UltraHosting shall own any intellectual property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to UltraHosting’s servers or other hardware and has no right of physical access to the hardware. Upon termination, Customer shall promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name) and agrees that UltraHosting may take steps to change or remove any such IP addresses.
WARRANTIES.
aa. Warranties.
i. Each party represent and warrant to the other that (i) it has the power and legal right to enter into this Agreement; (ii) it has taken all necessary action to enter into this Agreement and any Managed Hosting Services Schedule; and (iii) the execution and delivery of this agreement and performance of obligations hereunder do not conflict or violate applicable laws or regulations or constitute a default under its charter documents.
ii. Customer further represents and warrants that the information it has provided and will provide to UltraHosting for the purposes of establishing and maintaining the Services is accurate and complete.
iii. UltraHosting does not warrant or represent that the Services will be uninterrupted, error-free or completely secure. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer’s confidential information and property.
bb. Disclaimer. THE FOREGOING WARRANTIES BY EACH PARTY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MANAGED HOSTING SERVICE SCHEDULE FORMED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER IS SOLEY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, EXCEPT AS EXPRESSLY STATED ELSEWHERE. NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY COVER OR SET-OFF OR FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
10. LIMITATION OF LIABILITY.
ULTRAHOSTING’S LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO UltraHosting DURING THE THREE FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT UPON WHICH LIABILITY IS PREDICATED FOR SERVICES PROVIDED BY ULTRAHOSTING HEREUNDER PURSUANT TO THE APPLICABLE MANAGED HOSTING SERVICE SCHEDULE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED OR IMPLIED HEREIN, UltraHosting SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RELATING TO THE THIRD-PARTY PRODUCTS, OR ANY GOODS OR SERVICES NOT DEVELOPED OR PROVIDED BY ULTRAHOSTING.
Anonymous vs. Authenticated Licensing
Windows Server licensing comes in two basic forms - Anonymous and Authenticated licenses.
Anonymous - Anonymous licensing, also known as Unauthenticated, is used on server environments that are not going to take advantage of Windows Authentication, Active Directory or any type of multiplexing/pooling software. In essence, if your server will be used as a web server or as a server that will be providing web hosting services. This would include web sites, POP3 email, and web applications that do not require interaction with Windows Authentication services.
UltraHosting licenses are all Anonymous Windows Servers with per processor licensing which allows you to have an unlimited amount of users connecting to your server at any time, restricted only by your hardware, network and application limits.
Authenticated - Authenticated licensing is for servers that will be using Windows Authentication, Active Directory or multiplexing/pooling software. Servers that deploy Microsoft Exchange, SharePoint, and Terminal Services will require Authenticated licensing.


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