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Whistler Media Contract

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Terms & Conditions

Last update: 6/28/2006 3:43:15 P.M. P.S.T

This Terms and Conditions of Hosting Agreement (the "Agreement") controls your (referred to as "Customer," "you," or "your") use of Whistler Media® web site hosting and related services. Any or all of these services, including the software that may be provisioned to you by Whistler Media as part of your use of the services whether Whistler Media proprietary software or third party software (collectively "Whistler Media software"), are referred to as the "Whistler Media Services" or "the Services." In this agreement you and Whistler Media may be collectively referred to as "the parties."

Please read this Agreement in its entirety. By downloading Whistler Media software or using the Services or software, you agree to be bound by this Agreement and other user policies and agreements Whistler Media may establish from time to time including the Whistler Media Acceptable Use Policy. If you do not wish to be bound by this Agreement and the other Whistler Media policies, please do not sign this Agreement or, if accepting on-line, do not click on "I Agree" or otherwise manifest your assent.

This Agreement is effective as of the Customer account creation date (the "Effective Date") between the Customer and Whistler Media. Whistler Media agrees to provide hosting services and Customer agrees to accept and utilize Whistler Media's service according to the terms of this Agreement and the Order Form (if applicable) which has been executed by the parties and attached hereto.

1. Service.
You must be at least eighteen (18) years of age to subscribe to Whistler Media's Service. Customer is responsible for all use of Customer's account and maintaining the confidentiality of Customer's password(s). Whistler Media will suspend access or change access to Customer's account upon notification by Customer that his or her password has been lost, stolen or otherwise compromised. Customer may not transfer or give out its password to third parties, and Customer shall remain liable for all charges incurred for use of the Services. Whistler Media shall not be liable for any usage or charges prior to Whistler Media making the necessary account alteration.
2. Domain Registration.
Customers who are registering and parking their domain names with Whistler Media will receive a "coming soon" parking page. If Customer asks Whistler Media to register any domain name on Customer's behalf, Whistler Media will process Customer's registration request for Customer with a third party registrar. Customer must pre-pay for registration services to Whistler Media; otherwise, Whistler Media will terminate Customer's registration application with third party registrar within 120 hours. Whistler Media will not guarantee successful registration of a domain name, and will not be held liable for failure to successfully register a domain name, regardless of the cause of the failure or even if the domain appears to be available at the time you request Whistler Media to apply for registration. In any event, Customer will remain responsible for payment of all fees assessed by Whistler Media for the domain registration service-NOTE: Customer is responsible for payment for registered domains even if Customer elects not to make commercial use of a particular domain. If Customer has any concerns about the domain registration process, Whistler Media recommends that Customer manage the domain registration process separately.
3.

Technical Support.
Whistler Media will provide technical support consulting services via electronic mail ("e-mail") and facsimile to assist in verifying the account features of Whistler Media's intended functionality of the Customer's server and hosting Service ("Technical Support"). The account features include various products produced by third party vendors. The Technical Support staff can assist with the setup and configuration of the server and third party products; however, the usability, custom configurations, coding and troubleshooting fall under the support offerings of the third party vendor so Technical Support will be unable to assist with the aforementioned offerings.

Technical Support does not serve as a consultant to correct and rewrite programming code and scripting-related issues. Only Whistler Media-created Services and non-Customer configured Services will be supported to this extent. No e-mails from Whistler Media, including Technical Support e-mail, may be resent, distributed or posted on any media accessible to the public (including, but not limited to, any Internet site or bulletin board) by Customer, without Whistler Media's prior written consent. Technical Support shall consist only of the consulting services set forth above, and in no event shall it include any other support functions or Services, including, but not limited to, maintenance or repair of Customer's hardware or custom configurations to the server. Technical Support will be provided only to either Customer or Customer's technical or administrative contact. If Customer requires technical assistance beyond the conditions set forth above and Whistler Media determines that it has the technical resources for assistance, Customer shall be charged at Whistler Media's standard hourly rate. The hourly rate will be applied to Services not designated as Technical Support, as defined above, or for any Technical Support provided to someone other than Customer or Customer's technical or administrative contact. Prior to requesting support services from Whistler Media, Customer or Customer's technical contact agrees to ask Whistler Media's Technical Support personnel if the requested support services qualify as Technical Support.

Technical Support hours are 12 hours each day, except on nationally observed holidays, Christmas Eve, during departmental meetings, or when no, or limited support hours may be provided, of which Customer will be notified in advance. Technical Support hours are subject to change.
4. Equipment and Utilities.
Customer shall provide its own computer and telecommunications equipment necessary to access the Service. Customer shall provide and/or permit Whistler Media read and write or other access to Customer's equipment when circumstances warrant, e.g., to install a patch on an unmanaged dedicated server to address a security issue that Customer will not or cannot address. In any such event, Customer expressly releases and holds Whistler Media harmless from and against any liability arising out of Whistler Media's application of the patch or other activity necessary to address the security or other issue. Customer is solely responsible for all local, toll, and long-distance telephone charges for connecting to the Service. Whistler Media shall have no responsibility for any charges or tariffs related to any Customer telephone connection or on-line Services of any entity accessed by or for Customer.
5. Required Equipment.
Customer shall be solely responsible for the full cost of all required equipment, software and configuration as well as any additional equipment Customer wishes to utilize. Whistler Media shall have no obligation or liability in connection with any equipment not purchased through Whistler Media and configured by Whistler Media, or for any abuse or misuse of any equipment by any party other than Whistler Media. Whistler Media shall pass through to Customer any warranties from the manufacturers of equipment purchased through Whistler Media and installed at Customer's premises. Whistler Media shall have no obligation to repair or maintain any equipment at Customer's premises, and Customer shall be responsible for seeking warranty and other Services directly from the manufacturer.
6. Term.
This Agreement shall be effective on a calendar month-to-calendar month basis or a specific term length as set forth in an Order Form beginning on the Effective Date and continuing until terminated as provided herein. This Agreement may be revoked by Whistler Media in accordance with the terms herein at any time prior to the Effective Date.
7.

Termination by Whistler Media / Acceptable Use.
Whistler Media, in its sole business judgment, may terminate this Agreement immediately and without prior notice or immediately suspend Customer's access to the Service upon any breach of either this Agreement or Whistler Media's Acceptable Use Policy (available on the Whistler Media web site) by Customer, including, but not limited to, (a) refusal or failure to pay for Service or (b) Customer's performing activities harmful to Whistler Media or its other Customers, employees, vendors, business relationships or other users of the Internet, including but not limited to, spamming; harassment; falsifying information; defamation; violating a third party's privacy; infringing a third party's intellectual property rights; failing to adhere to Whistler Media's security policies or standards that may result in network vulnerability; or hacking or other effort to gain unauthorized access to any server, directory, or account information, all as determined by Whistler Media in its sole discretion. Whistler Media may also terminate this Agreement without cause at any time upon thirty (30) days prior Notice.

Unauthorized use of the Whistler Media Services in connection with the transmission of unsolicited bulk e-mail ("SPAM"), including the transmission of counterfeit e-mail, may result in civil and criminal penalties against the sender, including those provided by the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.) Whistler Media's response to a first spamming offense is to either terminate the account immediately or advise and educate the Customer through an e-mail warning and/or phone call, in Whistler Media's sole discretion. A minimum $200 (Two Hundred CDN Dollars) per hour spam handling fee will be charged to Customer's account for all valid complaints, as determined by the Whistler Media Abuse Team.
8. Termination by Customer.
Customer may terminate this Agreement if month-to-month upon forty-five (45) days prior notice and full payment of all subscription fees through the end of the notice period. Term accounts may only be cancelled by paying a cancellation fee equal to seventy-five percent (75%) of the remaining contract balance and by making payment of any outstanding telecommunications charges related to the establishment, maintenance and cancellation of Service to the Customer. If Whistler Media breaches any material term of this Agreement and such breach continues for ten (10) business days after Customer has notified Whistler Media, you may immediately terminate this Agreement. The foregoing notwithstanding, Customer agrees that payments for domain registration services are non-refundable. Domain registrations may only be terminated if Customer notifies Whistler Media in writing within 72 hours of the initial domain registration application submission.
9. Data.
Customer understands and agrees the Internet is a conglomeration of networks and servers operated by distinct entities having no business or legal relationship to Whistler Media. Whistler Media has no input whatsoever as to the content of Internet data accessed via the Service. Customer is solely responsible for any value or reliance it places on information obtained via the Internet or the Service. INFORMATION DERIVED AS A RESULT OF THIS AGREEMENT IS PROVIDED "AS IS" AND AT CUSTOMER'S OWN RISK.
10. Illegality/Adult Content Policy.
Whistler Media neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. Whistler Media reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, Customer agrees that the unused portion of any fees Customer may have paid for any Services rendered to Customer by Whistler Media are an appropriate recompense to Whistler Media for the time required to respond to and address issues created by Customer's illegal or obscene site/content, and Customer agrees not to seek recovery of those fees. Further, should Customer violate this policy, Whistler Media will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, Customer's site, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
11. Limited Warranty/Security.
Whistler Media warrants only that it shall, subject to the terms and conditions of this Agreement, provide Customer the Service. CUSTOMER AGREES THAT THE SERVICE IS BEING PROVIDED "AS AVAILABLE" AND "AS IS," WITH ALL FAULTS ACCEPTED. Whistler Media MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATIVE TO THIS AGREEMENT AND THE SERVICES DERIVED THEREUNDER AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. Whistler Media FURTHER DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO THE INTERNET AND INFORMATION DERIVED THEREFROM. Whistler Media DOES NOT WARRANT THAT THE SERVICE OR THE CONTENT WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL CONTENT AND ACTIVITY. IT IS THE CUSTOMER'S SOLE RESPONSIBILITY TO PERFORM ANTI-VIRUS SCANS, SECURE THE CONTENT OF HOSTED SITES AGAINST HACKERS AND OTHER SECURITY INTRUSIONS (INCLUDING PROTECTION OF CREDIT CARD OR PERSONAL INFORMATION BELONGING TO CUSTOMER'S CUSTOMERS), AND OTHERWISE MONITOR WHAT MAY BE HARMFUL OR OFFENSIVE CONTENT ON YOUR SITES OR RUNNING THROUGH YOUR CONNECTION TO THE INTERNET. YOU MUST DETERMINE THE SUITABILITY OF THE Whistler Media SERVICES FOR THE AFOREMENTIONED TASKS, GIVEN YOUR PARTICULAR USE OF THE INTERNET. IF THE SERVICES, AS PROVISIONED, DO NOT ENABLE YOU TO FULFILL THESE RESPONSIBILITIES, IT IS YOUR RESPONSIBILITY TO SECURE PRODUCTS OR SERVICES, AT YOUR EXPENSE, THAT PERMIT YOU TO MEET THESE SECURITY OBLIGATIONS.
12. Limitation of Liability.
Each party specifically agrees that, in no event, shall either party's liability as a result of this Agreement and the provision of Service hereunder, exceed Customer's monthly fee for any single month during which any claim of liability arose or the amount paid for any term Agreement. Neither party shall have liability whatsoever for any indirect, special, incidental, consequential or punitive damages of any kind, including but not limited to, lost revenue and lost profit.
13.

Compliance and Indemnification.
Customer agrees to use the Service in compliance with all applicable laws, and to host files or content, if at all, only with the consent of the copyright, trademark, domain name, or patent owner. Customer shall be charged for all costs incurred by Whistler Media, including reasonable attorney fees, for any claim, loss, or damage arising out of Customer's use or misuse of the Internet or the Services.

Customer specifically agrees to defend, indemnify, and hold harmless Whistler Media, its officers, and employees from any claim, loss, or damage, including costs and reasonable attorney fees, arising out of any act or omission of Customer under this Agreement or its use of the Service. This specifically includes any liability to which Whistler Media may be exposed arising out of Customer's having root or password access to any domain name or other server, and Customer hereby releases and holds Whistler Media harmless from and against any such liability or damage.
14. Personal Files/E-Mail Inbox.
Whistler Media is not responsible for back ups of Customer's personal files or other information. Whistler Media reserves the right to delete Customer information and files upon termination of the Service. Any IP addresses assigned to Customer are considered loaned by Whistler Media and will revert back to Whistler Media after cessation of the Service. E-mail inboxes have size limits set by Whistler Media. Once that size limit is reached or exceeded, Customer will receive notification, and no more e-mail will be delivered to that inbox until the size of the inbox is reduced by Customer to below the limit for that account.
15. Privacy.
Privacy issues are governed by Whistler Media's Privacy Policy, and that document should be consulted for any questions you may have about how Whistler Media uses your Customer information. You are required to develop and post a privacy policy on your web sites to the extent you gather any personal information from your customers or from visitors to your site.
16. Governing Law and Venue.
This Agreement shall be construed under the laws of the State of Washington. Federal and state Washington courts shall have jurisdiction and venue over this Agreement and the parties, and the exclusive venue for all litigation hereunder shall be commenced and maintained in Washington.
17. Notice.
Notice to Whistler Media shall be in writing and delivered by hand, e-mail, facsimile, or, if sent by certified mail, return receipt requested, or a nationally recognized overnight delivery service that keep records of deliveries and attempted deliveries (such as FedEx). It is imperative that Whistler Media be able to contact Customer at all times. Customer must promptly advise Whistler Media of any changes to his, her or its contact information, including mailing and e-mail addresses and phone number. Failure to do so constitutes grounds for immediate termination; moreover, any notices from Whistler Media to Customer sent to Customer's last known e-mail address as provided by Customer to Whistler Media shall be deemed effective even if Customer has failed to provide updated information to Whistler Media.
18.

Payment/Taxes.
Customer shall pay Whistler Media for all charges listed on Whistler Media's invoice, including all shipping and handling charges and other charges incidental to the provisioning of the Services. Unless otherwise stated on the face hereof, all payments shall be due upon receipt of invoice. On any amounts not paid when due, Subscriber agrees to pay interest at the rate of 1.5% per month (18% per year) or, if such rate is in excess of the rate allowed by law, then Subscriber agrees to pay the highest rate allowed by law. In addition, Subscriber agrees to pay all costs of collection, including costs of litigation and reasonable attorneys' fees. Subscriber agrees to execute financing statements and other instruments at Whistler Media's request. A $25.00 (Twenty Five CDN Dollars) collection fee will be charged for all dishonored checks. Any tax liability arising from Customer's use of the Service (other than taxes on Whistler Media income) will be Customer's responsibility. Customer will pay all sales and use taxes relating to the Service, as well as all duties or levies on Products and Services.

(a) Payment Terms. Unless otherwise subscribed or agreed, payment of the selected Service is due monthly on the first day of each calendar month for the Service to be rendered during the upcoming month. Whistler Media reserves the right to adjust its fees for Service hereunder at any time in the event Whistler Media experiences a rate increase from its telecommunications supplier. However, if Customer has signed a term agreement, Whistler Media's pricing will remain constant for the agreed-to term.

Whistler Media is not responsible for the pricing of any phone company service fees whether billed directly to Customer by the phone company or through Whistler Media on behalf of the phone company. AUTHORIZED CHARGES TO CREDIT CARDS SHALL BE MADE IN ADVANCE, ON OR ABOUT THE ANNIVERSARY DATE OF THE SERVICE FOR THE TERM OF THIS AGREEMENT UNTIL TERMINATED AS PROVIDED HEREIN. A fee of $15 (Fifteen U.S. Dollars) will be assessed for the following reasons: (1) late payment, (2) payment with insufficient funds, (3) denied or invalid credit card number, or (4) restart of Service terminated for non-payment. Payment is late after the fifth (5th) calendar day of the month. Whistler Media may change any fee, rate, or plan upon thirty (30) days' notice. Refunds, if any, from termination or cancellation of term or pre-paid accounts are only available as if the Customer were a month-to-month Customer, and will not be based on the discount the Customer may have received for prepaying the account.

(b) Payment Method. CUSTOMER HEREBY AUTHORIZES CHARGES TO BE MADE IN ADVANCE TO THE IDENTIFIED CREDIT CARD EACH MONTH FOR THE DURATION OF THIS AGREEMENT IN THE AMOUNT OF THE SELECTED SERVICE SET FORTH BELOW OR AS CHANGED BY Whistler Media AFTER NOTICE TO CUSTOMER. Payment may be made by check or purchase order only by key accounts and only upon prior authorization by Whistler Media. Customer additionally authorizes periodic verification of credit worthiness. Whistler Media, in its sole discretion and judgment, may discontinue credit at any time without notice.


(c) Security for Indebtedness. In the event that Customer fails to pay Whistler Media all amounts owed Whistler Media under this Agreement when due, Customer agrees that, upon delivery of notice to Customer via facsimile, e-mail or other method approved hereby, Whistler Media may (i) restrict Customer's physical access to any Customer equipment or data, and/or (ii) take possession of any Customer equipment or data and store it, at Customer's expense, until taken in full or partial satisfaction of any lien or judgment, all without being liable to prosecution or for damages.
19. Force Majeure.
Whistler Media shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, or any third party telecommunications or Internet connectivity providers, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties which are beyond the reasonable control of Whistler Media.
20. Waiver; Severability.
No waiver by either party of any breach by the other party of any provision of this Agreement shall be deemed or construed to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of this Agreement is stricken as unenforceable, the rest of the Agreement shall remain in full force and effect.
21. Successors and Assigns.
This Agreement is not assignable or delegable in whole or in part by Customer without the prior express written consent of Whistler Media. This Agreement shall be binding upon the heirs and successors of the parties hereto, the assigns of Whistler Media, and permitted assigns of Customer. This Agreement is assignable by Whistler Media provided Whistler Media gives Customer written notice of such an assignment and the assigning party(ies) is/are capable of performing all of Whistler Media's obligations hereunder.
22. No Resale.
The Service provided hereunder is limited to Customer and may not be resold in any manner whatsoever unless Customer selects a reseller plan and Whistler Media provides written acceptance of Customer's selection of a reseller plan.
23. Modification or Amendment to Agreement.
This Agreement may be amended or modified from time to time upon Notice to Customer in Whistler Media's sole discretion. This Agreement shall not be supplemented or modified by any course of dealing or other trade usage.
24. Entire Agreement.
These terms and conditions constitute the entire Agreement with regard to the subject matter hereof and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to this Agreement. This Agreement may be amended by Whistler Media at any time without notice, so please check back frequently to review changes. Any changes or amendments to this Agreement shall be set forth at www.whistlermedia.com. This Agreement may not be amended by Customer unless the amendment is approved by both parties in writing. Any questions about this Agreement should be directed to hosting@whistlermedia.com.
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