CONSIDERATION

Price of the Services

In consideration for the Services, the Client shall pay to Koumbit the price set forth in the Specifications, together with all applicable taxes.

Physical or Electronic Invoicing Address

Koumbit shall send its invoices to the Client at the electronic address set forth in the Specifications, or at any electronic address indicated by the Client to Koumbit after the signing of this Agreement. Delivery to a physical address or via fax transmission will incur charges set forth in the Specifications.

Terms and Conditions of Payment

The price shall be payable by the Client to Koumbit in accordance with the terms and conditions of payment set forth in the Specifications.

SPECIFIC PROVISIONS

Representatives of the Parties

Each of the Parties acknowledges that the person designated below (or any other person replacing the designated person, pursuant to a notice to that effect given to the other Party) shall represent it and shall have full authority to take all steps, make all decisions and give all consents required with respect to the performance of this Agreement, unless otherwise noted in this agreement.

Representatives of Koumbit

Koumbit provides three representatives for this agreement:

Accounting and billing

comptabilite@koumbit.org

Technical support and issues

support@koumbit.org

General information

info@koumbit.org

Representatives of the Client

The Client has to provide, in the Specification, three different representatives which may be the same physical or moral as seen fit by the Client:

Billing contact

will be contacted for accounting-related issues, will receive the bills and account statements. That person is empowered to take decisions with regards to payment and billing.

Technical contact

will be contacted for technical issues. That person is empowered to make decisions on access levels, and all other technical liabilities.

Administrative contact

will be contacted for any other issues. This person shall have full authority to take all steps, make all decisions and give all consents required with respect to the performance of this Agreement.

Electronic Communications

The Parties’ representatives may communicate between themselves by electronic means, in which case, the following presumptions shall apply:

1. The parties have established and verified their respective identities by presenting an electronic signature generated from a trusted OpenPGP key or S/MIME certificate (hereinafter referred to as the “Identification Code”)
2. the presence of an Identification Code in an electronic document shall be sufficient to identify the sender and to establish the authenticity of the said document;
3. an electronic document containing an identification code shall constitute a written instrument signed by the sender; and
4. an electronic document containing an identification code or any printed output of such document, when kept in accordance with usual business practices, shall be considered to be an original.

The Parties’ representatives may also communicate between themselves by fax, provided an original document follows-up any such transmission.

The Client representatives may also establish and verify its identity to Koumbit by presenting all of the following information:

• name of the contact
• address of the contact
• details of the last bill:
  • customer number
  • bill number
  • total amount

Obligations of the Client

The Client undertakes as follows in favour of Koumbit:

1. The Client shall cooperate fully with Koumbit and provide Koumbit with all information required in order to ensure that the Services are provided in a proper and complete manner;
2. The Client shall take up the defence of Koumbit if the latter is impleaded in, or made a party to, any legal proceedings instituted by a third party and alleging a fault on the part of Koumbit resulting from the presence, use or display of the Services or information stored therein, and the Client shall indemnify Koumbit and hold it harmless from and against the principal amount and interest of any monetary order which is issued, as well as from and against all judicial and extrajudicial costs incurred by Koumbit as a result thereof;
3. The Client shall pay the price of Koumbit's Services and the price of all additional services required by the Client after the signing of this Agreement, the whole in accordance with the terms and conditions of payment set forth in the Specifications;
4. The Client shall abide to guidelines of conduct set forth in the Acceptable Use Policy set forth in appendix “C” annexed hereto (hereinafter referred to as the “AUP”); and
5. The Client shall give notice forthwith to Koumbit if the Client's representative, as indicated in the Specifications, is replaced during the performance of this Agreement.

Obligations of Koumbit

Koumbit undertakes as follows in favour of the Client:

1. The Services shall be provided in a professional manner, in accordance with generally accepted industry practices, and based upon the Specifications and Service Level Agreement set forth in appendix “B” annexed hereto (hereinafter referred to as the “SLA”);
2. The Services shall be running and accessible from the Internet on a continuous basis as detailed in the Specifications, excepting such time periods as are needed for planned Services maintenance and network downtime not attributable to Koumbit;
3. Koumbit shall resolve any problem respecting the Services (as set forth in the SLA) after acknowledgement of the problem or after being notified by the Client, whichever comes first, with response times set forth in the Specifications;
4. Koumbit shall ensure that its employees, suppliers, associates and subcontractors, if any, fully comply with the provisions of this Agreement; and
5. Koumbit shall give notice forthwith to the Client if Koumbit's representative, as indicated in the Specifications, is replaced during the performance of this Agreement.

Service Rules

General Service rules

Koumbit's rules for providing Services hereinafter listed, as may be modified from time to time (hereinafter collectively referred to as the "Service Rules"), shall apply for the whole term of this Agreement, subject to the Specifications having priority over any incompatible outsourcing rule, the Client agreeing to be fully bound by these:

1. Koumbit may, at its sole discretion and subject to all its rights and recourses against the Client, refuse to provide Services to the Client, put them off-line without delay, and/or terminate this Agreement without any notice, if he believes that its content, in whole or in part, fails to meet any one of the Service Rules or Specifications or AUP.

Self-managed hosting

In addition to the General Service Rules above, the Client agrees to be fully bound by the following:

1. The content hosted in accordance with the terms of this Agreement shall be exempt from any design and operation defect or security vulnerability.

Relationship Between the Parties

Given that the Parties are independent contractors, this Agreement shall be binding upon them only for the purposes set forth herein. Consequently, the provisions of this Agreement shall not, under any circumstances, be interpreted as creating any association or partnership between the Parties or as conferring any mandate from one Party to the other. Moreover, neither Party may bind the other in any manner whatsoever or in favour of anyone whomsoever, except in accordance with the provisions of this Agreement.

Additional Services

If the Client requires additional services and if Koumbit agrees to provide such services, the Parties shall sign a purchase order prepared on the basis of the additional services required, which purchase order shall not be deemed to form an integral part of this Agreement.

All additional services shall be subject to the provisions of this Agreement, with the appropriate modifications.

The nature and price of the additional services are available by request.

Technical Support Provided by Koumbit

During the period set forth in the Specifications, Koumbit shall provide technical support with respect to the Service, at costs to the Client set forth in the Specifications, when deemed appropriate. In particular, but without limiting the generality of the foregoing, Koumbit shall, within a reasonable deadline, diagnose any problem or defect affecting the Services, as set forth in the SLA.

Limitation of Warranty

Unless otherwise provided for in this Agreement, Koumbit shall not provide the Client with any express or implied warranty with respect to the following:

• the Server or Services, its content, its operation, its hardware and software components, and its access through the Internet;
• the consequences which result or may result from the use of the Server, or Services, whether such consequences are actual or threatened, financial or not, or positive or not.

THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED WITH RESPECT TO THE OBJECT OF THIS AGREEMENT, AND THEY CONSTITUTE A LIMITED WARRANTY. THE CLIENT EXPRESSLY WAIVES ALL OTHER EXPRESS OR LEGAL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL LEGAL WARRANTIES REGARDING LATENT DEFECTS, EVICTION, merchantability or fitness for a particular purpose. Certain jurisdictions prohibit the exclusion or limitation of legal warranties, and it is possible that one or more of the aforementioned exclusions or limitations will not apply. It is also possible that the Client may have other warranty rights, which may vary from one place to another. Under no circumstance will the value of the warranty exceed the value of the services rendered to the Client and paid for by it. The Client expressly waives the right to make any warranty claim exceeding the said limit.

Limitation of liability

Except in the event of gross negligence on the part of Koumbit, Koumbit shall not be liable towards the Client for any fault or any direct or indirect damage resulting therefrom, and the Client shall indemnify Koumbit and hold it harmless from and against all claims, including all claims under a warranty.

UNLESS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL KOUMBIT (INCLUDING, IF APPLICABLE, ITS SUBSIDIARIES AND PARENT COMPANY, AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EXECUTIVES, EMPLOYEES AND ASSOCIATES) BE HELD LIABLE TOWARDS THE CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS OR OTHER ECONOMIC LOSS (RESULTING FROM A CONTRACTUAL OR EXTRA-CONTRACTUAL FAULT OR FROM NEGLIGENCE), EVEN IF KOUMBIT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS PROHIBIT the exclusion or limitation of LIABILITY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, and it is possible that one or more of the aforementioned exclusions or limitations will not apply. it is also possible that the Client may have other rights, which rights may vary from one place to another. Under no circumstances will Koumbit's TOTAL LIABILITY TOWARDS THE CLIENT EXCEED the value of the services rendered to the Client and paid for by it. The Client expressly RELEASES THE SUBCONTRACTOR FROM ANY LIABILITY exceeding the said limit.

Security Deposit

Upon the signing of this Agreement, the Client shall pay to Koumbit the security deposit set forth in the Specifications.

Interest

All amounts owed by the Client to Koumbit pursuant to this Agreement shall bear interest at a rate of 1 percent monthly (12,68 % per annum) as of their due date.

Suspension of Services in the Event of Failure to Pay

If the Client refuses, without right, to pay Koumbit the amounts payable pursuant to this Agreement in accordance with the terms and conditions of payment set forth in the Specifications, Koumbit may suspend performance of the Services in question, without further notice or delay, the whole without prejudice to any of Koumbit's other rights pursuant to this Agreement.

Termination of the Agreement (by the Client)

The Client may terminate this Agreement at any time, upon giving a notice to Koumbit. However, the Client shall remain liable for the following:

1. payment of the price of the Services rendered;
2. payment of the price of the additional services rendered; and
3. payment of Server Migration costs, if applicable.

without any reduction or deduction whatsoever.

Moreover, if Koumbit has fulfilled its obligations pursuant to this Agreement up to the date of termination thereof, the Client shall pay to Koumbit, for loss of expected profits, an amount equal to fifty percent (50 %) of the balance of the price of the Agreement.

Termination of the Agreement (by Koumbit)

If, after Koumbit has sent a demand to the Client, the Client does not abide by any one of its obligations pursuant to this Agreement, Koumbit may terminate this Agreement, put the Service off-line and, in the case of colocated services, remove it from the data center facilities and use it at its own discretion without any reduction, compensation or deduction whatsoever. In such a case, the Client shall remain liable for the following:

1. payment of the price of the Services rendered;
2. payment of the price of the additional services rendered; and
3. payment of Service Migration costs, if applicable.

without any reduction or deduction whatsoever.

Koumbit agrees to wipe the data from the Service when putting the Service off-line.

In the case of colocated services, note that the Server is kept to pay back the price of the Services rendered or any additionnal sums due from the client.

Collection Costs

If, as a result of the Client's failure to make a payment, it becomes necessary to refer the overdue invoice or invoices to a collection agency or an attorney, the Client shall pay to Koumbit, in addition to the amount owed, collection costs as charged by the collection agency or attorney.

Service Migration

If this Agreement terminates, Koumbit shall collaborate with the Client to ensure an efficient migration of the Service to another provider specified by the Client at its own discretion, following rates applicable at the time of said migration, if and only if Koumbit has received full payment for all customers obligations.

Professional Fees Relating to this Agreement

All professional fees (e.g. legal, accounting and other) relating to the negotiation, preparation and entering into of this Agreement which have been incurred at the request of a Party for its own benefit shall be borne by the said Party.

GENERAL PROVISIONS

Unless otherwise stated in this Agreement, the following provisions shall apply.

"Force Majeure"

Koumbit shall not be considered to be in default pursuant to this Agreement if the fulfillment of all or part of its obligations is delayed or prevented due to "force majeure". "Force majeure" is an external event which Koumbit has no control of, such as Act of God, fire, rain, flood, epidemic, earthquakes, winter storms, or other natural disasters; explosions, damages or destruction of equipment or installations; strike, lock-out or other work conflicts; riots, public disorder, war (declared or not) or armed conflicts; municipal, provincial, federal or other government laws and regulations, including but not limited to court orders and search warrants; inability to or delay to access physical premises due to fraud controls; or other unforeseeable events that make it impossible or illegal to continue providing Services under the terms of this Agreement.

Severability

If all or part of any section, paragraph or provision of this Agreement is held invalid or unenforceable, it shall not have any effect whatsoever on any other section, paragraph or provision of this Agreement, nor on the remainder of the said section, paragraph or provision, unless otherwise expressly provided for in this Agreement.

Notices

Any notice intended for Client shall be deemed to be validly given on the delivery date if it is in writing and is sent by registered or certified mail, by facsimile, by e-mail, by bailiff or by courier service to such Client’s address as set forth in this Agreement. Any Client’s address or contact information can be changed by giving ten (10) days notice in writing sent by registered or certified mail or by facsimile or by email to the other Party.

No Waiver

Under no circumstances shall the failure, negligence or tardiness of a Party as regards the exercise of a right or a recourse provided for in this Agreement be considered to be a waiver of such right or recourse.

Cumulative Rights

All rights set forth in this Agreement shall be cumulative and not alternative. The waiver of a right shall not be interpreted as the waiver of any other right.

Entire Agreement

This Agreement constitutes the entire understanding between the Parties. Declarations, representations, promises or conditions other than those set forth in this Agreement shall not be construed in any way so as to contradict, modify or affect the provisions of this Agreement.

No Right to Transfer

Client may not, in any manner whatsoever, assign, transfer or convey its rights in this Agreement to any third party, without the prior written consent of Koumbit.

Currency

The currency used for purposes of this Agreement shall be in Canadian dollars (CAD).

Governing Law

This Agreement shall be construed and enforced in accordance with the laws in force in the province of Quebec, Canada.

Election of Domicile

The Parties agree to elect domicile in the judicial district of Montreal, province of Quebec, Canada for the hearing of any claim arising with respect to the interpretation, application, performance, term, validity or effects of this Agreement.

Counterparts

Each counterpart of this Agreement shall be considered to be an original when duly initialled and signed by all the Parties, it being understood, however, that all of these counterparts shall constitute one and the same Agreement.

Successors

This Agreement shall bind the Parties hereto as well as their respective successors, heirs and assigns.

Elapsed Time

Whenever one of the Parties fails to fulfill an obligation under this Agreement within a stipulated deadline, the mere lapse of time shall constitute a formal notice of default to the said Party.

SPECIFICATIONS

Description of the Service

This service offers hosting of Drupal-based websites on Koumbit's Aegir-based shared hosting environment. It offers secure and reliable management of Drupal sites and support of the hosting environment.

Service Term

• Twelve (12) months

Specifications of the Service

• Required infrastructure for running a Drupal site (i.e., DB, PHP, Web server, file server)
• Hosting of said Drupal site in Aegir
• Creation of an Aegir client account
• SFTP access to your website's file directories (upon request)
• 1 hour of technical support per month:

  • contact channels: http://www.koumbit.org/en/support

  • N.B. Total support time, not just contact time

• Quotas based on the selected package specifying:
  • the number of sites
  • bandwidth
  • disk space
• Weekly security updates to:
  • Drupal core
  • contributed modules provided by the platform (i.e., only those in sites/all/modules/)
• Optional SSL support ($70/year or $100/2 years + SSL certificate registrations fees)

Specifically Excluded

• Sites are updated but not tested. See Additional Services (below).
• Contributed modules in the site's directory are the client's responsibility.

• Major version upgrades (D5 -> D6, D6 -> D7)

• General shared hosting offerings: email, mailing lists, CGI access, other applications.

Security

Physical security is provided by the following means:

• Uninterruptible Power Supply (UPS), auxiliary power generators
• Environmental control (humidity, temperature)
• Physical access to premises limited to pre-registered Koumbit personnel and personnel explicitely approved by Koumbit only, controlled by magnetic access cards
• Intrusion detection systems (including camera closed circuits)

Technical Support

• Support to customer is provided for duration of Services Term, as set forth in the Services Level Agreement (SLA)

Elements to be Provided by Koumbit to the Client

• Assigned IP addresses
• DNS configuration information

Price of the Services

Packages are based on the number of sites:

Additional quotas:

• Bandwidth: 15GB for all sites
• Hard disk: 5GB for all sites

Terms and Conditions of Payment

1. Security Deposit: (if applicable, will be determined based on services total pricing)
2. Fees for installation, set-up are payable:
   • Upon reception of Koumbit's invoice
3. Monthly fees for hosting services are payable :
   • On the first day of each month

Additional Services (for information only)

Update contracts: We offer contracts for $400-800/year, depending on your site's complexity.

SERVICE LEVEL AGREEMENT

In delivering outsourcing Services, Koumbit offers service levels to ensure the customer receives the highest quality of service possible. An updated copy of this Service Level Agreement is available upon request.

Technical support

Support to customer is provided for duration of Services Term. Response time represents the maximum time to respond to requests and give an initial identification of any problem, depending on their nature and how they are sent to Koumbit. Mean resolution time (MRT) represents the average time necessary to perform a complete diagnostic and resolution of problem within Koumbit’s infrastructure.

• Web: http://koumbit.org/en/support

• E-mail: support@koumbit.org

• Voice: (514) 387-6262

• IRC: irc://irc.indymedia.org/#koumbit

Note: In case no agent is available at time of call, voice technical support requests are stored in a voice-mail system. Emails are sent to the Support queue of our request tracking system.

Note: "On a best-effort basis" provides a reasonable response time–account being taken of the seriousness of the problem. Response time may be subject to delays, such as extreme traffic conditions, acts of God, weather, and other events that are out of the control of the responding agent.

Version française

• ModalitesDeService/PolitiquedUtilisationAdmissible

Acceptable Use Policy (AUP)

Koumbit’s goal is to provide high quality service to our customers while protecting their privacy and security. We have established our AUP to prevent unacceptable uses of our services and equipment and to ensure that we are able to provide the level and quality of services our customers expect.

The AUP applies to all Customers of Koumbit.

"Customer" includes any organization, individual, company, or other entity and their agent or affiliate, to which Koumbit (directly or indirectly) provides services ("Services").

"Services" includes any Koumbit facilities, any equipment on Koumbit’s side of the demarcation point or point of service, any equipment owned or provided by Koumbit, any services provided by or arranged by Koumbit and any service which is the subject of an agreement between Koumbit and the Customer, regardless of whether or not the user of Services has a contract with Koumbit

Prohibited Uses

The following uses are prohibited under this AUP. The descriptions are guidelines and are not meant to be exhaustive.

Illegal or Criminal Activities

Services must not be used in creating, facilitating, or attempting, the intentional or unintentional criminal or civil violation of federal, provincial or other applicable laws or regulations.

Violations include:

• infringing copyrights, trademarks or patents;
• transmitting offensive materials including hateful or defamatory material;
• violating personal privacy.

Security and Integrity Violations

Services must not be used in creating, facilitating, or attempting (successfully or unsuccessfully) the violation of the security or integrity of a network, service or other system of Koumbit or others.

Violations include:

• circumventing user authentication or security of any host, network or account ("cracking");
• interfering with service to any user, host or network ("denial of service attacks");
• falsifying addressing information including modifying header information of any TCP/IP packet or email or newsgroup posting for the purpose of concealing the sender's or recipient's identity or any other illegitimate purpose ("spoofing"). This provision is not intended to disallow the use of aliases, anonymous remailers or encrypted messages for any legitimate purpose;
• using Services to violate the acceptable use policies or service agreements of others.

Koumbit may investigate incidents involving such violations and may involve and will co-operate with law enforcement if a criminal violation is suspected.

Spamming

Services must not be used in sending a message (including fax and voice traffic) to any person who does not wish to receive it or with the effect of preventing fair and proportionate use of Services by others, or in spamming, whether or not the quantity or quality of messages disrupts the facilities of Koumbit or others.

Violations include:

• sending unsolicited bulk messages (commercial advertising, unsolicited commercial messages, political tracts, announcements, etc.);
• sending messages with chain mail or financial scam related requests;
• posting a single message, or similar messages, to large numbers of newsgroups (excessive cross-posting or multiple posting, also known as "USENET spam");
• spamming indirectly through the use of other service providers or transmitting email or content through other service providers in a way which indicates in any way that Koumbit was involved in the transmission of such email or content;
• operating an unsecured email relay;
• posting binary files to non-binary newsgroups;
• attempting to evade filters of spamming;
• violating accepted norms of the Internet community, whether or not expressly mentioned in this AUP.

Koumbit's Rights

Koumbit reserves the right to prohibit activities that violate this AUP or may damage its reputation.

Koumbit will generally not monitor private electronic mail messages sent or received by its Customers but may conduct reasonable investigation of a Customer and its equipment (i) if required by law or (ii) upon reasonable suspicion of a violation of this AUP to determine if there has been a violation or (iii) when public safety may require it. Koumbit may at all times monitor its performance of Services electronically to determine if its facilities are operating satisfactorily.

Koumbit may disclose Customer information or information transmitted by means of its facilities (i) to comply with legal requirements, or (ii) where necessary to protect Koumbit and others from harm, or (iii) where such disclosure is necessary to the proper operation of Koumbit’s facilities.

Koumbit will inform the Customer that Customer’s information has been disclosed or will be disclosed, or that monitoring has been performed, except in some cases may be prohibited by law from so informing.

The Customer acknowledges that Koumbit is unable to monitor or exercise full control over the contents and the information passing through its facilities or carried as a result of performing Services, and is therefore not responsible for said contents and information.

Consequences

Violation of this AUP (either direct, indirect or commited by a third party) entitles Koumbit to remove immediately the offending material, establish immediate or temporary filtering, deny access, suspend or terminate Services, or take any other appropriate action, as determined by Koumbit in its sole discretion, in addition to any remedies provided by any agreement to provide Services.

Koumbit may give notice of violations but Koumbit reserves the right to act without notice when necessary, as determined by Koumbit in its sole discretion. Nothing in this AUP is to be construed to limit Koumbit's actions or remedies in any way with respect to any of the foregoing activities, and Koumbit reserves the right to take any additional actions it may deem appropriate with respect to such activities, including without limitation, taking action to recover the cost of identifying offenders and disconnecting them from Services, and charging to cover Koumbit's costs in the event of disconnection of dedicated access or like situation.

Koumbit may co-operate with other service providers to discourage and resist abuses of acceptable use policies. Koumbit reserves the right to take corrective action upon notification to Koumbit of unacceptable use on other networks. Services may be used to link to other networks world-wide and you agree to conform to the acceptable use policies of these networks. You agree, through your operations, not to cause disturbances, outages or other problems which may affect Koumbit’s or any other network or network based equipment, or which may adversely affect Koumbit’s ability to provide services.

Disclaimer and Indemnification

The Customer will indemnify and hold Koumbit harmless from any claim brought by third parties related to the Customer's use of Services. The Customer must defend and pay all damages and costs (including legal fees) arising from such claims. The Customer must immediately notify Koumbit of any claim or potential claim within its knowledge, which is related to the Customer’s use of Services. Failure to do so gives Koumbit the right to defend such claims at the Customer's sole cost.

Incident Reporting

To report a suspected breach of this AUP, please contact support@koumbit.org.