The terms and conditions set forth herein constitute the full and complete agreement (the "Agreement") between you and QwertyStudio.com ("Qwerty Studio"). By using the Qwerty Studio Web Site, or any products or services of Qwerty Studio (together, individually, or in any combination, the "Qwerty Studio Services"), you agree to be bound by the terms of this Agreement. With respect to the Qwerty Studio Services, the terms contained herein supercede and replace any other agreement or negotiation between you and Qwerty Studio, whether oral, written or otherwise, including any statements made to you by any representative of Qwerty Studio at any time. Any amendments, changes, additions, deletions or other modifications of this Agreement are void unless specifically expressed in writing and agreed to by Qwerty Studio.
1. FEES; PAYMENT OF FEES
1.1 - FEES
1.1.1 - The fees payable by you to Qwerty Studio will be governed by the package of Qwerty Studio Services ordered. Qwerty Studio will maintain a list of current fees on the Qwerty Studio website, QwertyStudio.com, to apply to your account. Qwerty Studio reserves the right to change the fee charged for any Qwerty Studio Services under this agreement with 30 days notice to you.
1.1.2 - Qwerty Studio reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this Agreement. Any such periodic special rates shall not effect the then existing rights and responsibilities of each party.
1.1.3 - To the extent that you qualify for any promotional rates or special offers offered by Qwerty Studio, these terms and conditions may be modified by the terms and conditions of the promotion or special offer. In such a case, the terms and conditions of the promotion, to the extent they differ from the terms and conditions expressed herein, govern.
1.2 - PAYMENT OF FEES
1.2.1 - Payment for all products and services is due in a two step process, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Qwerty Studio Services. The two step process involves a deposit before work is started, and a second payment when the final product is delivered. Payments are to be made in Canadian Dollars.
PAYMENT STRUCTURE
30% Deposit before project is started.
70% (balance), at delivery of completed project.
1.2.2 - Payment by Cheque: All payments are to be by personal or business cheque.
1.3 - REFUNDS
1.3.1 - If the initial deposit is paid, and the design and layout is delivered, there are no refunds on the initial deposit. If the client wishes to terminate the project it must be done before the first delivery stage is met. Qwerty Studio may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder.
2. WEB HOSTING SERVICES
2.1 - For the term of the agreement as set forth herein, Qwerty Studio agrees to provide the Qwerty Studio Services, to the extent they have been subscribed to by you, upon activation of your account. Qwerty Studio reserves the right to change, amend and/or otherwise alter the Qwerty Studio Services with equivalent or otherwise equal services without prior notice to you.
2.2 - Account activation and provision of the Qwerty Studio Services will commence as soon as is practicle after receipt of your order, dependent on the timely receipt of any payment due from you in connection therewith.
2.3 - Subscribers to Qwerty Studio Services must be at least 18 years of age or require the approval of the minor's legal guardian.
2.4 - DATABASES - For accounts that included the use of a database, these databases may not exceed 100 MB in size.
2.5 - BANDWIDTH - When purchasing extra bandwidth for any package, you will be billed according to your billing cycle for the dedicated server, and not by the calendar month.
3. DOMAIN NAMES AND REGISTRATION SERVICES
Qwerty Studio does not register domain names. Please visit a third-party registrar for domains.
4. ACCEPTABLE USE POLICY (AUP)
4.1 - COMPLIANCE
Qwerty Studio strictly enforces compliance with its acceptable use terms under this Article 4. You agree to maintain your website in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under Article 8 herein. You agree that:
4.1.1 - You will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, Provincial, State or Municipal government;
4.1.2 - You will not engage in any activity of any kind that causes harm to minors or to perform any activity which is likely to cause such harm;
4.1.3 - You will not take any action which encourages or consists of any threat of harm or harassment of any kind to any person or property;
4.1.4 - You will not transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be "spamming" or "Mail Bombing," and you will not carry out any "denial of service" attacks on any other website or internet service;
4.1.5 - You agree not to make any inappropriate, illegal or otherwise prohibited communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum;
4.1.6 - You agree not to make or attempt any unauthorized access to any Qwerty Studio website or the website of any Qwerty Studio customer;
4.1.7 - You agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
4.1.8 - You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express written consent and you shall maintain records of any such written consent throughout the terms of this agreement and for three years thereafter;
4.1.9 - You agree not to undertake any action which is harmful or potentially harmful to the Qwerty Studio server structure;
4.1.10 - You agree not to undertake any action that will interfere with another party’s use of Qwerty Studio Services;
4.1.11 - You agree not to use or distribute tools designed for compromising security;
4.1.12 - You agree not to deliberately or negligently transmit files containing a computer virus;
4.2 - VIOLATION
If your violation of any of the Acceptable Use provisions results in costs to Qwerty Studio (Costs), you agree to reimburse Qwerty Studio for all costs incurred to return Qwerty Studio to the same position as if the violation had not occurred. Costs may include but are not limited to, legal fees, hardware or software fees, and technical consulting fees. To the extent that Qwerty Studio uses its own resources, you agree to reimburse Qwerty Studio at market rates for the skills employed.
4.3 - WEBSITES
You agree to design your websites in such a manner as to avoid overloading of the Qwerty Studio Servers, by, for example, limiting the use of CGI, PHP, ASP, JSP or any other scripts that require overly high processor capacity, and to use good judgment to provide a website that is designed in a technically competent manner. Qwerty Studio has the right, should your website be the cause of interruptions in Qwerty Studio's ability to provide its services to other customers, to temporarily disable access to your website. In case Qwerty Studio takes such a step, you will be informed thereof as soon as is practicable and Qwerty Studio may work with you to remove the condition that led to the suspension.
5. BLOCKING OF BULK EMAIL ("SPAM")
5.1 - Qwerty Studio reserves the right to block email from any open mail relay, IP address or other source that Qwerty Studio believes are being used to send unsolicited commercial or bulk email, commonly known as spam.
6. OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 - It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Qwerty Studio, including but not limited to the Qwerty Studio customer service and maintenance tools. You acknowledge that all right and title to any such Qwerty Studio intellectual property shall remain the sole property of Qwerty Studio and that you have no right, title or interest therein. You further agree not to provide access to the Qwerty Studio services to any third party. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Qwerty Studio Services shall also remain the sole property or Qwerty Studio.
6.2 - During the term of this agreement you may have access to certain information and materials relating to the Qwerty Studio business, customers, software technology and marketing which Qwerty Studio treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of Qwerty Studio; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
6.3 - For purposes of this Section 6, Confidential Information also includes passwords and access codes.
7. TERM
7.1 - The initial term of this Agreement shall be governed by the package of Qwerty Studio services to which you have subscribed. Terms may be one month, three month, six-month, yearly or longer as specified in the Qwerty Studio Service package. Subject to the termination provisions in Article 8, this agreement shall renew automatically for subsequent additional terms of equal length to the initial term after the expiration of the initial term (each such term a "Contract Term"). Qwerty Studio reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment.
8. TERMINATION
8.1 - For any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) and Section 4 (Acceptable Use Policy), Qwerty Studio may suspend or terminate your account by deactivating any access by you or by web users to any information contained on the Qwerty Studio servers related to your account. Suspension hereunder shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. Qwerty Studio reserves the right to terminate your account forthwith and without notice for any breach of Section 4 of this Agreement.
8.2 - This agreement and all of its terms shall remain in full force and effect until terminated. Termination shall include the removal of any and all of your information from the Qwerty Studio servers. Qwerty Studio is under no obligation to make information or data available to you after termination. This agreement may be terminated either (a) after a period of suspension as set forth in Section 8.1 or (b) by either party upon 30 days notice in advance of a renewal period for any reason, in which case the Agreement shall terminate at the end of the month after the month in which the termination notice is received by the non-terminating party.
8.3 - Either party may terminate this Agreement immediately and without further notice for cause. Cause for immediate termination under this subsection 8.3 exists (a) if any payment for Qwerty Studio Services is more than fifteen (15) days overdue, (b) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party, or (c) any breach of the provisions of Article 4 of this Agreement.
9. NOTICE
9.1 - Any notice under this Agreement shall be given by Qwerty Studio to you via email at the address provided by you to Qwerty Studio at the commencement of this Agreement or as Qwerty Studio is subsequently advised. Notice to you at your then-current administrative email address is deemed sufficient regardless of your actual receipt of such email.
9.2 - You warrant that the contact information you have provided to Qwerty Studio is and will remain accurate. You agree that you will inform Qwerty Studio within 15 days of the change of any of the following information:
9.2.1 - Your name and/or mailing address;
9.2.2 - The name, mailing address, email address, telephone or fax number of the technical contact for your Domain Name(s), if applicable;
9.2.3 - The name, mailing address, email address, telephone or telefax number of the administrative contact for your Domain Name(s), if applicable;
10. WARRANTIES; LIMITATIONS OF LIABILITY
10.1 - Uptime Guarantee. Subject to the limitations outlined herein Qwerty Studio agrees to provide you with 99% service availability. Qwerty Studio agrees to refund you one day of pro-rated recurring fees of the Qwerty Studio Services to which you are subscribing with this Agreement, for each cumulative hour of service outages (Down-time) in a given month. Down-time is defined as a period of time in which all your Qwerty Studio Services are unavailable to you on account of factors under direct Qwerty Studio control. Down-time does not include service outages caused by Denial of Service (DOS) or Distributed Denial of Service (DDOS) attacks, SPAMing or any other factor that is not under direct control of Qwerty Studio or its agents. Down-time does not include service outages that are required for scheduled maintenance for which you will be notified in advance and which shall not exceed 6 hours per month. Scheduled maintenance service outage periods in excess of 6 hours per month shall be added to the calculation of Down-time. In no event will the refund amount exceed twenty per cent of the fee you incurred for that month. You agree that this refund provision constitutes your sole remedy against Qwerty Studio for any and all service outages. Such refunds are not automatic and must be claimed no later then 48 hours after the downtime occurred.
10.2 - Subject only to the terms in Section 10.1, Qwerty Studio does not in any way warrant or otherwise guarantee the availability of the Qwerty Studio system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Qwerty Studio. Qwerty Studio may, at its sole discretion, limit or deny access to its servers, if, in the judgment of Qwerty Studio, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the Qwerty Studio servers.
10.3 - ALL Qwerty Studio' SERVICES ARE PROVIDED TO YOU 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.
10.4 - Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on Qwerty Studio's website, Qwerty Studio has no control over information contained on the Internet. Qwerty Studio, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Qwerty Studio provides no warrantee for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the Qwerty Studio system.
10.5 - You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
10.6 - THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO Qwerty Studio IN THE SIX MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY, BUT IN NO EVENT TO EXCEED $1,000. IN NO EVENT SHALL QWERTY STUDIO BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
11. DATA TRANSFER VOLUME
11.1 - The allowable amount of Data Transfer is governed by the Qwerty Studio Services package to which you are subscribing. The utilized data-transfer volume is calculated on the basis of all data-transfers that take place during any given calendar month (including but not limited to downloads, email, uploads and website visits).
12. INDEMNITY
12.1 - You agree to fully defend and indemnify and hold harmless Qwerty Studio of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Qwerty Studio in any way related to your use of the Qwerty Studio Services or any portion thereof.
12.2 - You agree to fully defend and indemnify and hold harmless Qwerty Studio of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Qwerty Studio Services or any portion thereof. Choice of counsel remains exclusively that of Qwerty Studio.
12.3 - You agree to fully defend and indemnify and hold harmless Qwerty Studio of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any privacy legislation which is in any way related to your use of the Qwerty Studio Services or any portion thereof. You acknowledge that you are solely responsible for the data stored using the Qwerty Studio Services and solely responsible for ensuring that the Qwerty Studio Services are appropriate for the nature of the data being stored. Choice of counsel remains exclusively that of Qwerty Studio.
12.4 - You agree that upon the creation of your Username and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your username and / or your password. You further agree to defend and indemnify and hold harmless Qwerty Studio of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential Username and Password information. Choice of counsel remains exclusively that of Qwerty Studio.
13. GENERAL PROVISIONS
13.1 - FORCE MAJEURE. Either party to this agreement 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.
13.2 - ASSIGNMENT. This agreement and the rights hereunder is not assignable or transferable except that Qwerty Studio may freely assign all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Qwerty Studio, or to any affiliated company or successor in interest of Qwerty Studio. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by Qwerty Studio to any other party, including to any affiliated company or successor in interest of Qwerty Studio, you have the right to terminate this Agreement by giving notice thereof in writing to Qwerty Studio and any such termination shall become effective thirty (30) days after the receipt of such notice by Qwerty Studio.
13.3 - SEVERABILITY. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
13.4 - SURVIVABILITY. The terms in section 4.2 and 13.4 shall survive termination of this Agreement.
13.5 - CHOICE OF LAW. The Parties shall attempt to resolve any disputes between them prior to resorting to litigation. This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the provincial courts located in Toronto, Ontario.
13.6 - NO AGENCY. Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between Qwerty Studio and you.
13.7 - AMENDMENT. Qwerty Studio may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Qwerty Studio website in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts. It is your responsibility to periodically check the Qwerty Studio website for updates of this Agreement. Your continued use and renewal of the Qwerty Studio Services is evidence of your acceptance of the Agreement as amended.
