The
services that NetNation Communications Inc. (the 'Company') provides to you
are subject to this Terms of Use ('TOU'). You will hereinafter be referred
to as 'Customer,' the scope of which definition will include, without limitation,
your agents, employers, and employees. This TOU, in addition to any
Order Form (as defined below) and any other specific agreement for Company
Services (as defined below) between Customer and the Company, represents the
complete understanding and agreement between the Company and Customer.
Except when expressly agreed to the contrary in writing signed by an authorized
representative of the Company, this TOU supersedes any other agreement, whether
written, oral, by conduct, or otherwise.
The
Company reserves the right to update the TOU (including, without limitation,
changing or discontinuing any of the 'company services' as defined below)
at any time without notice to CUSTOMER. Any such change or discontinuance
will legally bind Customer from the time when the Company publishes an updated
version of the TOU on the Web Site. It is Customer's sole responsibility,
and it is not the Company's responsibility whatsoever, to ensure that Customer
is up-to-date on the most current version of the TOU.
The most current version of the TOU can be reviewed by
clicking on the 'Terms of Use' hypertext link located at the bottom of the
Company's web site (the 'Web Site') pages.
THE
SUBMISSION OF CUSTOMER'S 'ORDER FORM' (WHICH DEFINITION INCLUDES, WITHOUT
LIMITATION, THE COMPANY'S ONLINE ORDER FORM, HARD COPY WRITTEN ORDER FORM,
AGREEMENTS FOR COMPANY SERVICES, OR TELEPHONE ORDERS), OR CUSTOMER'S USE OF
ANY COMPANY SERVICES, WILL IMMEDIATELY AND AUTOMATICALLY CONSTITUTE CUSTOMER'S
ACCEPTANCE OF THE TOU AND WILL BIND CUSTOMER TO THE TOU ACCORDINGLY.
Customer represents and warrants that
Customer has read this TOU thoroughly, has had sufficient opportunity to seek
legal counsel or has waived such opportunity, and therefore clearly understands
and agrees to all the terms and conditions contained in this TOU.
Wherever
in this TOU the masculine, feminine, or neuter gender is used, it will be
construed as including all genders, and wherever the singular is used, it
will be deemed to include the plural and vice versa, where the context so
requires. In each and every instance herein, the term 'including' will
mean 'including, but not limited to.'
The
Company will provide Company Services to Customer in exchange for fees and
full compliance with the following terms and conditions:
1.
Provision of Company Services
a.
Company Services Defined. 'Company Services' include the following:
(i)any act of preparing, setting
up, connecting, maintaining, terminating, or reconnecting 'Customer's Account'
(which definition includes all billing data related to Company Services and
the space on the particular Web server that the Company provides to Customer
for the purpose of providing Company Services to Customer);
(ii)any use by Customer, or any access
provided to Customer by the Company, of computing, telecommunications, software,
information, hardware, and equipment provided by the Company or third parties
affiliated with the Company;
(iii)any act, or provision of any
service, by the Company to Customer related to web hosting and domain name
registrations (including server usage and technical support), regardless of
duration and whether paid for or not;
(iv)any provision by the Company
to Customer, of any space, Internet connectivity, or electrical power;
(v)any access or use related to
the Web Site, including the Web Site itself;
(vi)any other service mentioned in
the TOU;
(vii)any other service provided by
the Company to Customer, whether used or not;
(viii)any other service related to
the Company that is used by Customer, whether offered or provided by the Company
to Customer.
b.Amendment of Fees & Charges. The Company may amend
the fees and/or charges for any Company Services without prior notice to Customer.
c.
Management & Backup of Data. Except where the Company
has expressly agreed in writing to the contrary, Customer is solely and entirely
responsible, and the Company is in no way responsible, for the management
and backup of all Customer data, and all updates, upgrades, and patches to
any software that Customer uses in connection with Company Services.
d.Maintenance Windows. Customer acknowledges and agrees
to the weekly scheduled maintenance windows, which the Company may perform
at least every week. Customer understands and agrees that during a scheduled
maintenance window, any or all Company Services may be unavailable.
Customer further understands and agrees that the Company has the right to
conduct an emergency maintenance window at any time, during which any or all
Company Services may be unavailable.
e.License to Occupy Only. Customer acknowledges that Customer
has no real property interest in any equipment space provided to Customer
by the Company, and Customer agrees that any such provision of equipment space
grants Customer only a license to occupy the equipment space. Payment
by Customer for the equipment space does not create or vest in Customer (or
in any other party) any leasehold estate, easement, ownership interest, lien,
or other proprietary right or interest of any nature in any part of the Company's
premises or facilities including the equipment space.
f.Domain Name Registrations. Company Services related to
the registration of a domain name is limited to the submission of the registration
request to the appropriate registrar. THERE IS NO GUARANTEE, AND THE
COMPANY SPECIFICALLY DISCLAIMS ANY SUCH GUARANTEE, THAT A PARTICULAR APPLICATION
FOR A
DOMAIN NAME WILL BE ACCEPTED, APPROVED, OR REGISTERED. Customer understands
and agrees that each individual domain name constitutes a single submission.
It is Customer's sole responsibility to provide accurate information and to
notify the appropriate registrar directly, and NOT the Company, about any
change to the original information. For country code top-level domain
names, Customer acknowledges that the fees are non-refundable, even if the
domain name is rejected (because the fee is for the service of submitting
the application). Customer understands and acknowledges that each individual
registry or registrar may have additional domain registration fees that Customer
will have to pay.
g.
Third Party Services or Products. Customer acknowledges and
agrees that any recommendation made by the Company's employees for services
or products ancillary to Company Services are the recommendations of that employee
only and not of the Company. The Company does not warrant the integrity
or quality of the services or products provided by such
third parties. Customer agrees to hold the Company, any third party
entity related to the Company
(including third party vendors), and the Company's executives, directors,
officers, attorneys, managers, employees, consultants, contractors, agents,
parent companies, subsidiaries, and co-subsidiaries (herein and hereinafter
meaning any company owned by the same parent company, whether partially or
wholly) harmless from and against any and all liabilities, losses, costs,
judgments, damages, claims, or causes of action, including any and all legal
fees and expenses arising out of or related to Customer's reliance on any
recommendation made by an employee of the Company regarding services or products
ancillary to Company Services.
h.
The Company's Right of Refusal & Termination. The Company
may, at its sole discretion, refuse Company Services to any Customer (whether
potential, new, or existing) and/or terminate the supply of Company Services
to Customer immediately, with or without any prior notice, if the Company
deems Customer to be in breach of the TOU, notwithstanding that Customer may
be in breach of any other agreement by complying with the TOU.
2.
Use of Company Services
a.Customer's Account. Only Customer may use Customer's Account,
which is defined as including all billing data related to Customer Services
and the space on the particular Web server that the Company provides to Customer
for the purpose of providing Company Services to Customer. Customer
may not transfer, sell, lease, rent, or assign, in any way, any part or whole
of Customer's Account and/or Company Services to any party, unless Customer obtains
the Company's prior written consent.
b.
Customer's Password.Customer agrees to maintain a secure
password ('Customer's Password') to Customer's Account, as approved and accepted
by the Company. Customer is solely responsible for changing and maintaining
Customer's Password as required to ensure secure access to Customer's Account.
Customer is also solely responsible, and the Company is in no way responsible,
for ensuring the confidentiality and secrecy of Customer's Password.
If Customer forgets or loses Customer's Password or requires a new password,
Customer agrees to abide by all the security measures and procedures that
the Company may implement and require of Customer, including Customer's provision
to the Company of valid identification, credit card number, or notarized affidavit.
Customer understands and agrees that if Customer does not comply with or does
not satisfy (in the Company's sole discretion) the Company's security and
identification verification procedures, then the Company reserves the right
to refuse any or all of Customer's inquiries and/or requests as they relate
to Company Services and/or Customer's Account.
c.
Ownership of Customer's Account & Customer's Web Site. Customer acknowledges,
warrants, and agrees that the legal owner of Customer's Account will be the
individual, company, or entity whose name is listed in the Company's database
as the owner of Customer's Account ('Account Owner'). Only the Account
Owner may MAKE MODIFICATIONS, INCLUDING change OF ownership, TO Customer's
Account, subject to the Company's WRITTEN consent. Customer further
acknowledges and agrees that the legal owner of the web sites hosted under
Customer's Account will be the Account Owner, EXCEPT WHERE CUSTOMER'S CUSTOMERS
OWN THE WEB SITES. Customer WILL fully cooperate with and abide by any
and all of the company's security measures and procedures (including Customer's
provision to the Company of valid identification, credit card number, and/or
notarized affidavit) in the event of any conflict with regards to the ownerhip
of customer's account and/or web siteS.
d.
Customer'sLawful and Ethical Use. Customer agrees to use the Company Services as permitted by applicable
laws (including, without limitation, local, provincial, state, and federal
laws) and in a manner that is not unethical, libelous, or contrary to public
or Company policy.
e.Customer's Warranty, Liability, & Indemnification. Customer
acknowledges and agrees that the Company will be the sole determinant of whether
or not Customer is in breach of the TOU. Customer is solely responsible
for any legal liability arising out of, or relating to, Customer's use of
Company Services. Customer represents, warrants, and covenants to the
Company that Customer holds the necessary rights to use, or permit to use,
any item used through any of the Company Services, and that the use, reproduction,
distribution, transmission, or display of any data to the public, and any
material to which the public can link or access, or any aspect of Company
Services made available to the public through Customer, does NOT and will
NOT:
(i)violate or potentially violate
any right of any third party, including copyrights,
patents, trademarks, trade secrets, or other proprietary rights;
(ii)constitute or potentially constitute
violations, including false advertisement, unfair competition, defamation,
invasion of privacy, invasion of rights, and discrimination;
(iii)cause or potentially cause any
dispute or legal action/proceeding;
(iv)contain or potentially contain
any material that is unlawful, harmful, fraudulent, libelous, slanderous,
threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful,
or otherwise offensive;
(v)contain or potentially contain
any material that is racially, ethnically, disputatiously, argumentatively,
or ethically objectionable; or
(vi)contain any other material that
would constitute a criminal offense, give rise to civil liability, or otherwise
violate any applicable law (including export control laws).
Furthermore,
Customer represents and warrants that Customer is not and has not been designated
a suspected terrorist as defined in Executive Order 13224, that Customer is
not a party to, associated with, controlled by, or otherwise related in any
way to any individual or organization listed in the Annex to Executive order
13224 and all updates thereto.
Customer
agrees to indemnify and hold harmless the Company, any third party entity related to the Company (including third party vendors), and
the Company's executives, directors, officers, attorneys, managers, employees,
consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries
from and against any and all liabilities, losses, costs, judgments, damages,
claims, or causes of action, including any and all legal fees and expenses
arising out of or relating to Customer's breach of any provision of the TOU
or any other third party claim with respect thereto.
f.
Customer's Prevention of Corruption. Customer must actively
endeavor to prevent any corruption
of the Company's systems, including viruses. The Company reserves the
right to run anti-virus programs, at the Company's sole discretion, to minimize potential and actual damages.
g.
Other Prohibited Conduct. Customer must not commit or permit any reverse engineering, reverse assembling,
disassembling, reverse compiling, or decompiling, or any attempt to derive
source code from, any prototypes, hardware, software, or other tangible objects
provided to Customer by the Company.
h.Mandatory Upgrades. If the Company, in its sole discretion,
deems Customer or Customer's Account to be adversely affecting the Company's
server performance or network integrity, or Customer's Account is consuming
use of bandwidth or disk space above the allowance specified in Customer's
particular service package, then the Company may request of Customer, and
Customer must comply with such request, to upgrade Customer's Account to a
service package that would, in the Company's sole discretion, adequately accommodate
the use, consumption, and other requirements of Customer's Account and accommodate
the Company's provision of Company Services to Customer's Account. Any
and all downgrades of service packages are subject to the Company's sole approval
and applicable fees.
i.Fixtures &Registration of Personal Property.
Customer acknowledges and agrees that any of the Company's equipment,
whether or not physically affixed to any part of the Company's premises or
facilities, will not be construed to be fixtures. For Customer's own
equipment, Customer must register, or cause the lessor of such equipment to
register (if applicable), the equipment as Customer's personal property whenever
required by any applicable law, and Customer agrees to pay all taxes levied
upon such equipment.
j.
Other Parties' Permission & Policies. Customer's use
of networks, computing resources, or other services from other parties is
also subject to those parties' respective permission and usage policies. In the event of any conflict between
the usage policies of the other parties and the TOU, the TOU will prevail
and Customer will comply with the TOU.
k.Domain Name Registrations. Customer agrees that by submitting
to the Company an Order Form for domain name registration, Customer represents
and warrants that the information submitted therein is true, accurate, and
complete, and that any and all future changes to this information will be
provided to the appropriate registrar in a timely manner. Customer also acknowledges and agrees
that any submission of an Order Form for domain name registration does not
confer immunity from objection to either the registration or use of the domain
name.
l.Other Registry/Registrar Policies. Upon Customer's registration
of a domain name with any registry or registrar, Customer will also be subject
to the usage policies of that registry or registrar. In the event of
any conflict between the usage policies of the particular registry or registrar
and the TOU, the TOU will prevail and Customer will comply with the TOU.
3.
Customer's Abuse and Breach
a.Customer's Abuse Defined. Any abuse of Company Services
is a breach of the TOU ('Customer's Abuse'). Determination of what constitutes
Customer's Abuse will be at the sole discretion of the Company. Customer's
Abuse includes Customer's use of Company Services to engage in criminal activities
(including child pornography and fraud), infringement of third party intellectual
property rights, display or communication of vulgar, offensive, defamatory,
or threatening materials, use of Company Services that disrupts the normal
use of Company Services for other customers of the Company or Customer's customers,
spawning processes, consuming excessive amounts of memory or CPU, spamming
or mass e-mailing (whether or not it overloads a server
or disrupts service to the Company's customers), unauthorized access to or
use of data, systems, or networks (including any attempt to prove, scan or
test the vulnerability of a system or network, or to breach security or authentication
measures without express authorization of the owner of the system or network),
and interference with the Company's provisions of Company Services to any
user (including mail bombing, flooding, deliberate attempts to overload a
system, and broadcast attacks). Without limiting the scope of the foregoing,
the Company specifically forbids the storage of illegal or pirated software,
the use of any type of IRC bot and/or proxy (including 'bnc' and 'eggdrop'),
the storage or use of any type of software intended for hacking or cracking
purposes, the storage or sale of unsolicited bulk e-mail lists intended for
spamming or resale purposes, and the forging of any TCP-IP packet header or
any part of the header information in an email or a newsgroup posting.
Customer understands, acknowledges, and agrees that Customer's Abuse is just
cause for the Company to terminate this TOU and any and all provision of Company
Services to Customer.
b.
Spamming. Customer understands and acknowledges that the
Company has a zero-tolerance policy against the sending of unsolicited bulk
e-mails and/or commercial messages over the Internet ('Spam' or 'Spamming'),
which definition also includes maintaining anSMTP policy, engaging in
Spamming using the services of another Internet service provider ('ISP') or
Internet presence provider ('IPP') and referencing in the Spam a web site
hosted on the Company's server, and selling or distributing software on a
web site that facilitates Spamming and resides on a server of the Company.
Spamming is strictly prohibited under the TOU and is just cause for the Company
to terminate this TOU and any and all provision of Company Services to Customer.
c.
Disciplinary Measures. In the event of Customer's Abuse,
the Company may implement, at the Company's sole discretion, any disciplinary
measure, including warning, suspension, or termination of Customer's Account
and all provision of Company Services to Customer. If Customer has been
suspended, and the Company chooses to repeal the suspension, the Company may,
at its sole discretion, charge Customer a reconnection charge before the Company
provides any further Company Services to Customer. Customer acknowledges
and agrees that if a Customer's Account has been suspended or placed on hold,
the Company may redirect visitors of the particular Customer's web site to
the Company's technical support web page. Customer further agrees to
indemnify and hold harmless the Company, any third party entity
related to the Company (including third party vendors),
and the Company's executives, directors, officers, attorneys, managers, employees,
consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries
from and against any and all liabilities, losses, costs, judgments, damages,
claims, or causes of action, including any and all legal fees and expenses
arising out of or relating to the Company placing Customer's Account on hold.
d.
Monitoring. The Company reserves the right, and Customer
consents, to the Company monitoring Company Services and the content on Customer's
web site(s) to determine whether or not Customer is using Company Services
in compliance with the TOU. However, Customer understands and acknowledges
that the Company does not monitor Customer's communications, activities, or
web site content as a general practice, and the Company expressly disclaims
that it maintains any such general practice.
e.Misclassification. Customer acknowledges that Customer's
activity may be misclassified as Customer's Abuse. A Customer who believes
that Customer's activity has been misclassified may appeal to the Company's
Technical Support Manager. Determination of whether or not Customer's
activity is indeed Customer's Abuse is at the Company's sole discretion.
Customer further agrees to hold harmless the Company, any third party entity related to the Company (including third party vendors),
and the Company's executives, directors, officers, attorneys, managers, employees,
consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries
from and against any and all liabilities, losses, costs, judgments, damages,
claims, or causes of action, including any and all legal fees and expenses
arising out of or relating to the Company misclassifying Customer's activities
as Customer's Abuse.
f.Breach of the TOU. Customer agrees to report to the Company
any breach of the TOU by Customer, any other customer of the Company, or anyone
else using Company Services or associated with the Company. If Customer
is unsure of whether or not a particular activity constitutes a violation
of the TOU, Customer must notify the Company and the Company may make such
determination. The final determination of what constitutes breach of
the TOU will be at the Company's sole discretion.
g.
Civil &/or Criminal Liability for Breach. CUSTOMER ACKNOWLEDGES
AND AGREES THAT ANY BREACH OF THE TOU BY CUSTOMER MAY RESULT IN CIVIL ACTION
AND/OR CRIMINAL PROSECUTION.
4.
TERMINATION
a. Cause for Termination.
CUSTOMER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT IF THE COMPANY
DEEMS CUSTOMER TO BE INVOLVED, IN ANY WAY, IN ANY BREACH OF THE TOU THE COMPANY
RESERVES THE RIGHT TO IMMEDIATELY TERMINATE, WITHOUT ANY PRIOR NOTICE TO CUSTOMER,
THE TOU AND COMPANY SERVICES TO CUSTOMER. THE COMPANY WILL NOT IN ANY
WAY BE LIABLE TO CUSTOMER, AND CUSTOMER WILL MAKE NO CLAIM AGAINST THE COMPANY,
FOR TERMINATING THE TOU OR COMPANY SERVICES TO CUSTOMER AS PROVIDED HEREIN.
b.
Bankruptcy & Insolvency. In the event Customer becomes insolvent or any bankruptcy petition is filed
by Customer or any third party against Customer, this TOU will automatically
terminate and the Company may immediately terminate Company Services to Customer
without prior notice and/or any penalty whatsoever. Customer further
consents to the grant of relief from any automatic stay of proceedings against
the Company in such event.
c.
Survival. The following sections of this TOU will survive
the expiry or termination of this TOU for any reason: 3(d); 3(f); 4 to 8 inclusive;
10; 11; 15 to 20 inclusive.
5.
Indemnification
Customer agrees to protect, defend, hold harmless, and
indemnify the Company, any third party entity related to the Company
(including third party vendors), and the Company's executives, directors,
officers, attorneys, managers, employees, consultants, contractors, agents,
parent companies, subsidiaries, and co-subsidiaries from and against any and
all liabilities, losses, costs, judgments, damages, claims, or causes of actions,
including any and all legal fees and expenses, arising out of or resulting
in any way from Customer's use of Company Services.
6.
LIMITATION OF LIABILITY
TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO
THEORY OF LAW OR EQUITY, WILL The Company
(including The Company's EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS,
employees, CONSULTANTS, CONTRACTORS, AGENTS, Parent companies, subsidiaries,
co-subsidiaries, affiliates, third-party providers, merchants, licensors,
or the like) or anyone else involved in creating, producing, or distributing
Company Services, be liable FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS
OR PERSONAL LOSS, REVENUE DECREASE, EXPENSE INCREASE,
COST OF SUBSTITUTE PRODUCTS AND/OR COMPANY SERVICES,
OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND Ð EVEN IF THE COMPANY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES Ð (I) ARISING OUT OF ANY
USE OF OR INABILITY TO USE ANY COMPANY SERVICES, OR (II) RELATED TO THE COMPANY'S
MIGRATION OR MOVEMENT OF ANY EQUIPMENT BELONGING TO CUSTOMER AND/OR THE COMPANY.
THE COMPANY'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD
PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR CUSTOMER SERVICES, INCLUDING
THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY THE COMPANY OR THE COMPANY'S
REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED
TO, AND WILL NOT EXCEED, THE SETUP FEE OR THE MONTHLY FEES PAID BY CUSTOMER
FOR COMPANY SERVICES, WHICHEVER IS GREATER.
7.
DISCLAIMER
a.
No Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH
IN THIS TOU, No advice, whether written, oral, or otherwise, that is given by the
Company, its employees, agents, licensors, or the like, will create a warranty
and any reliance on such information or advice by Customer will be at Customer
sole risk, and the Company will in no way be liable to anyone for such reliance.
b.
Backup of Data & Insurance. CUSTOMER acknowledgeS and agreeS that it is CUSTOMER'S
sole responsibility, and that Company is in no way responsible, for the back
up of CUSTOMER'S data and for the maintenance of adequate insurance in relation
to CUSTOMER'S Equipment.
c.
Changes, Modifications, Movement, & No Backup of Data. Customer agrees that The Company
may discontinue, upgrade, replace, modify, change, OR PHYSICALLY MOVE in any
way, without limitation, any software, application, program, data, hardware,
equipment, or portions or components thereof, used to provide Customer with
Company Services. Customer understands, acknowledges, and agrees that
certain changes to Company Services may affect the operation of Customer's
personalized applications and content. The Company makes no warranty
of any kind, either express or implied, regarding the performance, condition,
or existence of any of Customer's personalized applications and content.
Customer also agrees that Customer is solely responsible, AND THE COMPANY
IS NOT RESPONSIBLE OR LIABLE IN ANY WAY, for any of Customer's personalized
applications and content, including the management and backup of any and all
Customer data and adequate insurance of customer's equipment.
d.Systems Information. The Company makes NO warranty
of any kind, either express or implied, regarding the quality, accuracy, or
validity of the data and/or information available. Use of information
obtained from or through The Company is at the sole risk of Customer.
e.Interconnecting Networks Information. Customer acknowledges that the
data or information available through the interconnecting networks may not
be accurate, and that The Company has no ability or authority over the data
or information. The Company makes NO warranty of any kind, either express
or implied, regarding the quality, accuracy, or validity of the data or information
residing on or passing through the internconnecting networks. Use of
data or information obtained from or through Company Services is at the sole
risk of Customer.
f.Third Party Licenses. Customer
understands and acknowledges that The Company makes a Reasonable effort to
provide Customer with technologies, developments, and innovations (collectively
'Technologies'), part of which are being licensed or co-branded
from or by third party entities. However, The Company makes NO warranty
of any kind, either express or implied, regarding the quality, accuracy, reliability,
validity, or continued existence of any or all aspects
of such Technologies. Moreover, The Company
specifically disclaims all warranties of merchantability and fitness FOR A PARTICULAR PURPOSE for such Technologies. Furthermore,
Customer will NOT hold The Company, any third party entity related to The Company (including third party
vendors), or The Company's executives, directors, officers, attorneys, managers,
employees, consultants, contractors, agents, parent companies, subsidiaries
and co-subsidiaries liable in any way for the revocation of any license, which
has been licensed to The Company from or by third parties, that results in
any actual or potential harm, damage, cost, expense, or otherwise to Customer,
Customer's business, Customer's affiliates, Customer's customers, or anyone
or anything related to Customer. The use of the Technologies obtained
from or through The Company, or any other referred third party, whether directly
or indirectly, is at the sole risk of Customer.
g.Non-Company Products. REGARDING
NON-COMPANY PRODUCTS AND SERVICES, any mention THERE of, or ANY statement
RElated THEREto, BY the company, any third party entity related to the Company
(including third party vendors), or The Company's executives, directors, officers,
ATTORNEYS, managers, employees, consultants, CONTRACTORS, agents, parent companies,
subsidiaries, and/OR co-subsidiaries is for information purposes
only and does not constitute an endorsement or recommendation by The
Company or the individuals and entities listed in this section. The Company disclaims any and
all liabilities for any representation or warranty made by the vendors of such non-Company products or Services.
h.
The Web Site. THE SERVICES, INFORMATION, AND DATA (COLLECTIVELY THE 'INFORMATION') MADE
AVAILABLE ON THE COMPANY'S WEB SITE ARE PROVIDED 'AS IS,' WITHOUT WARRANTIES
OF ANY KIND. THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATION AND
WARRANTY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. THE COMPANY WILL HAVE ABSOLUTELY NO LIABILITY
IN CONNECTION WITH THE INFORMATION, INCLUDING ANY LIABILITY FOR DAMAGE TO
THE WEB SITE USER'S COMPUTER, ANY HARDWARE, DATA, INFORMATION, MATERIALS,
AND BUSINESS RESULTING FROM THE INFORMATION, OR THE LACK OF INFORMATION, AVAILABLE
ON THE COMPANY'S WEB SITE. THE COMPANY WILL HAVE NO LIABILITY FOR:
(i)ANY AND ALL LOSSES OR INJURIES
CAUSED, IN WHOLE OR IN PART, BY THE COMPANY'S ACTIONS, OMISSIONS, OR NEGLIGENCE,
OR FOR CONTINGENCIES BEYOND THE COMPANY'S CONTROL IN PROCURING, COMPILING,
OR DELIVERING THE INFORMATION;
(ii)ANY AND ALL ERRORS, OMISSIONS,
OR INACCURACIES IN THE INFORMATION REGARDLESS OF HOW CAUSED, OR DELAYS OR
INTERRUPTIONS IN DELIVERY OF THE INFORMATION; OR
(iii)ANY DECISION MADE, OR ACTION
TAKEN OR NOT TAKEN, IN RELIANCE UPON THE INFORMATION FURNISHED ON THE WEB
SITE.
THE
COMPANY MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY AS TO THE CONTENT,
SEQUENCE, ACCURACY, TIMELINESS, OR COMPLETENESS OF THE INFORMATION ON THE
WEB SITE, OR THAT THE INFORMATION IS RELIABLE FOR ANY REASON. THE COMPANY
MAKES NO WARRANTY, REPRESENTATION, OR GUARANTY THAT THE INFORMATION WILL BE
UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS CAN BE CORRECTED. CUSTOMER
WILL MAKE NO CLAIM, COMPLAINT, OR PROCEEDING AGAINST THE COMPANY FOR ANY OR
ALL PORTIONS OF THE WEB SITE THAT MAY REQUIRE THE DOWNLOADING OF WEB SITE
COOKIES FOR CUSTOMER TO ACCESS SUCH PORTIONS OF THE WEB SITE. FOR THE
PURPOSES OF THIS SECTION, 'THE COMPANY' INCLUDES THE COMPANY'S DIVISIONS,
SUBSIDIARIES, CO-SUBSIDIARIES, SUCCESSORS, PARENT COMPANIES, AND THEIR (INCLUDING
THE COMPANY'S) EXECUTIVES, DIRECTORS,
OFFICERS, ATTORNEYS, MANAGERS, employees, CONSULTANTS, contractors, AGENTS,
affiliates, third-party providers, merchants, licensors and the like.
8.
Payment
a.Billing Cycle. The billing or invoicing of Customer's
Account may vary depending on various factors, including the date on which
Customer becomes a customer of the Company and the particular Company Services
that the Company is providing Customer. The Company's provision of Company
Services to Customer for one (1) month will constitute one 'Billing Cycle'
which will begin on the first day, and end
on the last day, of each calendar month. The Billing Cycle will continue
to renew each month until the Company receives a 'Cancellation Request' from
Customer in accordance with this TOU. The first Billing Cycle for Customer's
Account will commence on the day that the Company receives Customer's Order
Form. If the Company receives the Order Form on or after the first day
of a calendar month, then the Company may pro-rate accordingly the charges
and fees for that month. The Company reserves the right to modify the
Billing Cycle, at any time and without prior notice, so that Customer may
be billed or invoiced for Company Services more or less frequently.
Any period during which Customer's account is suspended or on hold will be
included in the Billing Cycle.
b.Payment Due. Customer must ensure that the Company receives
full payment for Company Services before the beginning of each Billing Cycle,
including the initial Billing Cycle. Customer is solely responsible
for ensuring that the Company receives payment before the applicable due date. The
Company may, at its sole discretion, decide not to provide Customer with Company
Services until the Company receives full payment in advance.
c.Methods of Payment. Methods of payment accepted by the
Company are check, money order,
or credit card. If Customer is paying by check or money order, the payment
must be sent to the Company's address as it appears on the Web Site.
The Company will charge Customer a fifteen U.S. dollar (US$15.00) service
charge for each check that is not honored or for each credit card payment
that is charged back.
d.
Overages. The Company may charge Customer for any 'Overages,'
which includes excessive bandwidth and disk space use (which is any use of
bandwidth or disk space above the allowance specified in Customer's particular
service package). Customer is solely responsible for preventing any
and all Overages on a daily basis. Customer acknowledges and agrees
that the Company has no obligation to warn Customer about any pending or actual
Overage.
e.Delinquent Customer's Account. Customer's Account will
be deemed 'Delinquent' if the Company does not receive payment for Company
Services within five (5) days after the commencement of a Billing Cycle.
f.Penalties for Delinquent Customer's Account. A Customer's
Account that is Delinquent may be put on hold and Customer may be prevented
from using Customer's Account. Delinquent Customer's Account may have
visitors redirected from Customer's web site to the Company's technical support
web page. A Delinquent Customer's Account that is unpaid for an entire
Billing Cycle may, at the Company's sole discretion, have any or all files
archived, purged, or otherwise deleted. Customer's Account will continue
to accrue charges (including interest charges) while Customer's Account is
on hold.
g.Reconnection Charge. The Company may charge Customer,
and Customer must pay, a reconnection service charge of fifty U.S. dollars
(US$50.00) to remove the hold on Customer's Account and to remove Customer's
Account from Delinquent status.
h.
Amendments. The Company may amend the fees and/or charges for any of the Company Services
without prior notice to Customer.
i.
Applicable Taxes. The Company will charge Customer, and Customer must pay to the Company,
all applicable taxes, including any retroactive tax on past fees or charges
(whether already paid or not) in cases where the Company is under a legal
obligation to collect such tax from Customer. Customer is solely responsible
for any and all other taxes, which Customer is under a legal obligation to
pay.
9.
CANCELLATION REQUESTS
a.Automatic Renewal. The TOU will bind Customer, and Customer
will be deemed to have accepted the TOU, upon the Company's receipt of Customer's
Order Form. The TOU, and the particular service agreement(s) executed
between Customer and the Company (if any), will automatically renew upon expiration
of the relevant Billing Cycle until Customer makes a proper 'Cancellation
Request.'
b.Cancellation Request Defined. 'Cancellation Request' means
Customer's request, in accordance with this TOU, to the Company to cease the
provision of Company Services for the particular Customer's Account.
For a valid Cancellation Request that the Company will deem effective, Customer
must make any and all Cancellation Requests according to the following specifications:
(i)
Monthly Basis. If
Customer pays on a monthly basis, a Cancellation Request must be given by
writing via facsimile, first class postal service (postage prepaid), or by
prepaid overnight commercial courier delivered to the Company's Customer Service
Department (address available on the Web Site). Customer may also make
a Cancellation Request by telephone call to the Company's Customer Service
Department during the hours of 8:00 a.m. PST to 5:00 p.m. PST, Monday to Friday
(excluding holidays). The Cancellation Request must be received by the
Company before 5:00 p.m. PST on the last business day of the particular month
in order for the Cancellation Request to be processed by the end of the same
month; otherwise, the Company will automatically renew Customer's Account
for the next month or Billing Cycle. CHARGES ARE NOT PRO-RATED WHEN
CUSTOMER TERMINATES CUSTOMER'S ACCOUNT WITH THE COMPANY.
(ii)
Non-Monthly Basis. If Customer pays on a non-monthly basis
(three (3), six (6), twelve
(12), or other number of multiple months), a Cancellation
Request for Customer's Account must be given by writing via facsimile, first
class postal service (postage prepaid), or by prepaid overnight commercial
courier delivered to the Company's Customer Service Department (address available
on the Web Site). Customer may also make a
Cancellation Request by telephone call to the Company's Customer Service Department
during the hours of 8:00 a.m. PST to 5:00 p.m. PST, Monday to Friday (excluding
holidays). The Cancellation Request must be received by the Company
before 5:00 p.m. PST, fifteen (15) days before the anniversary date of when
the Company received Customer's Order Form for the Cancellation Request to
be processed before such anniversary date; otherwise, the Company will
automatically renew Customer's Account, and Customer will be bound and responsible,
for the next applicable period. CHARGES ARE NOT PRO-RATED WHEN CUSTOMER
TERMINATES CUSTOMER'S ACCOUNT WITH THE COMPANY.
e.Full Payment Requirement. Customer's Account must be PAID
IN FULL before any Cancellation Request will be considered effective.
f.30-Day Money Back Guarantee. The Company will provide
Customer a thirty (30) day
money back guarantee. If Customer is not satisfied with Company Services
within the first thirty (30) days of receiving Company Services, Customer
may request a refund of the fees Customer has paid in advance. The thirty
(30) day period will commence on the earlier of the day the Company receives
from Customer an Order Form. Any and all setup fees, Overages, other
charges, and domain name registration fees are NOT refundable.
10.
IP Addresses
The
Company maintains control and ownership of any and all IP numbers and addresses
that may be assigned to Customer, and the Company reserves the right to change
or remove, at the Company's sole discretion, any and all IP numbers and addresses.
11.
Intellectual Property
a.Company Web Site. Customer must not, without the Company's
express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on the Web
Site, including the Company's sales and marketing materials.
b.Trademark & Copyright Prohibition. Customer must not,
without the Company's express written consent, use any of the Company's trademarks,
service marks, copyrighted materials, or other intellectual property.
c.Misrepresentation. Customer must not, in any way, misrepresent Customer's relationship with
the Company, attempt to pass itself off as the Company, or claim that Customer is the Company.
12.
Customer's Privacy
Except
as provided herein, the Company will keep confidential Customer's information
or data collected as required by applicable laws. Customer understands,
acknowledges, and agrees that under urgent or emergency circumstances, and/or
as required by court order, official authority, police or other law enforcement
authority, or any applicable law or regulation, the Company may make available
Customer's information or data to the relevant third party. Customer
further agrees that the Company may disclose and share Customer's information
or data with the Company's parent companies, co-subsidiaries, and subsidiaries
for internal purposes, including uses related to Company Services, improvements
to Company Services, extending special offers to Customer, and referral commissions.
Customer understands, acknowledges, and agrees that Customer's administrative
contact information in relation to Customer's domain name registration is
public information and the Company is not, and will not, be obligated to safeguard
such information and data from any third party.
13.
Assignment and Agents
a.Assignment. The rights and liabilities of both Customer and the Company (collectively
'the Parties') under the TOU will bind and inure to the benefit of the Parties'
respective successors, executors, and administrators, as the case may be.
However, Customer may not assign or delegate Customer's rights or obligations
under the TOU, Order Form, or other agreement for Company Services executed
between the Parties, either in whole or in part, without the prior written
consent of the Company.
b.Bound as Principal. Customer agrees that Customer will
always be bound as a principal to the TOU even if any contract or service agreement, including
any Order Form for domain name registration or web hosting, is executed by an
agent of Customer.
14.
MINIMUM AGE REQUIREMENT
a.Customer's Warranty. Customer represents and warrants
that Customer is at least 18 years of age.
b.Parent or Guardian. Customer understands and acknowledges
that any individual under the age of 18 years ('Minor') must have a parent
or guardian accept the TOU in order for the Minor to become a Customer.
c.Parent or Guardian Primarily Liable. A parent or guardian
who accepts the TOU on behalf of a Minor will be primarily liable for ensuring
complete and proper compliance with the TOU, including the timely and full
payment of the charges for Company Services.
d.Continuation of Parent or Guardian's Liability. A parent
or guardian who accepts the TOU on behalf of a Minor will continue to be primarily
liable for the obligations mentioned in the TOU even when the Minor has attained
the age of 18, unless the parent or guardian obtains the Company's express
written consent to the contrary.
e.Invalid Acceptance (Null & Void). ANY ACCEPTANCE OF
THE TOU BY AN INDIVIDUAL UNDER THE AGE OF 18 (MINOR) WILL BE DEEMED INVALID
AND THE TOU WILL BE DEEMED NULL AND VOID AS BETWEEN THE COMPANY AND THE MINOR
TO THE EXTENT THAT THE COMPANY WILL NOT BE HELD LIABLE IN ANY WAY AS A RESULT
OF THE MINOR'S AGE OR LEGAL INCAPACITY OR THE MINOR'S USE OF THE COMPANY SERVICES.
15.
Governing Law and Severability
Any
agreement, including the TOU, Order Form, or other agreement for Company Services,
between the Company and Customer, will be governed by and construed in accordance
with the laws of the Province of British Columbia, Canada without reference
to its conflicts of laws principles. Customer agrees that any litigation
or arbitration between Customer and the Company will take place in such jurisdiction,
and Customer consents to personal jurisdiction
and venue in that jurisdiction. If any provision or portion of the agreement
is found by a court of competent jurisdiction to be unenforceable for any
reason, the remainder of that agreement will continue in full force and effect.
16.
FORCE MAJEURE
Customer
understands, acknowledges, and agrees that the Company will not be liable
for delays in its performance of the TOU, Order Form, or other agreement for
Company Services caused by circumstances beyond the Company's reasonable control,
including acts of God, wars, insurrection, civil commotions, riots, national
disasters, earthquakes, strikes, fires, floods, water damage, explosions,
shortages of labor or materials, labor disputes, transportation problems,
accidents, embargoes, or governmental restrictions (collectively 'Force Majeure').
The Company will make reasonable efforts to reduce to a minimum and mitigate
the effect of any Force Majeure. Notwithstanding anything contained
elsewhere herein, lack of finances will not be considered an event of Force
Majeure nor will any event of Force Majeure suspend any obligation of Customer
for the payment of money due hereunder.
17.
WAIVER, Modification, & AMENDMENT
Any
waiver, modification, or amendment of any provision of the TOU, Order Form,
or other agreement for Company Services, initiated by Customer, will be effective
only if accepted in writing and signed by an authorized representative of
the Company.
18.
INDEPENDENT CONTRACTORS
Nothing
in this Agreement will be construed as creating a partnership or relationship
of employer and employee, principal and agent, partnership or joint venture
between the Parties. Each Party will be deemed an independent contractor
at all times and will have no right or authority to assume or create any obligation
on behalf of the other Party, except as may be expressly provided herein.
19.
CONSTRUCTION & INTERPRETATION
Wherever
in this TOU the masculine, feminine, or neuter gender is used, it will be
construed as including all genders, and wherever the singular is used, it
will be deemed to include the plural and vice versa, where the context so
requires. The term 'including,' wherever used in any provision of the
TOU, means 'including but without limiting the generality of any description
preceding or succeeding such term.' The division of the TOU into sections/paragraphs,
and the insertion of headings/captions, are for convenience of reference only
and will not affect the construction or interpretation of the TOU. Any
rule of construction to the effect that any ambiguity is to be resolved against
the drafting party will not be applicable in the construction or interpretation
of the TOU.
20.
COMPLETE AGREEMENT & EXCLUSIVITY
The
TOU, in addition to the Order Form and any other specific agreement for Company
Services between the Company and Customer, and including the recitals contained
in this TOU, constitute the complete understanding and agreement betweenCustomer and the Company. Except when expressly agreed
to the contrary in signed writing by an authorized representative of the Company,
the TOU supersedes any other written (including digitized/computerized) agreement,
oral agreement, and/or agreement by conduct. This TOU, the Order Form,
or any other specific agreement for Company Services between the Company and
Customer will each be exclusively between the Company and Customer only and
will not confer any rights in any third party except as otherwise expressly
provided in the TOU.
21.
INDEPENDENT LEGAL ADVICE
Customer
represents and warrants that Customer has read this TOU thoroughly, has had
sufficient opportunity to seek legal counsel or has waived such opportunity,
and therefore clearly understands and agrees to all the terms and conditions
contained in this TOU.
