Usage Policy. ServerBolt does not intend to systematically monitor the content which is submitted to, stored on or distributed or disseminated by you via the Services ("Customer Content"). Customer Content includes the content of your customers and/or users of your website. Accordingly, under these Terms and Conditions, you will be responsible for your customers' content and activities on your website.
Notwithstanding anything to the contrary contained herein, ServerBolt may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this agreement in the event of notice of possible violation of this agreement. In the event ServerBolt takes corrective action, ServerBolt shall not be liable to refund any fees paid in advance. You hereby agree that ServerBolt shall have no liability to you or any of your customers due to any corrective action that may thereby occur, including without limitation, the disconnection of Services.
You are required to keep your operating systems, security patches, software, and firewalls fully updated and properly configured.
Term, Termination & Cancellation Policy. The initial term of your agreement with ServerBolt shall be as set forth in your Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services in the Order Form. After the Initial Term, your agreement with ServerBolt shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
This agreement may be terminated: (i) by either party by giving the other party thirty (30) days prior notice (subject to an early cancellation fee as provided below); and (ii) by ServerBolt at any time, without prior notice, if, in ServerBolt's judgment, you are in violation of any term or condition herein, or in ServerBolt's sole judgment, your use of the Services places or is likely to place unreasonable demands upon ServerBolt or could disrupt ServerBolt's business operations. If you cancel this agreement prior to the end of the Term: (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; (ii) ServerBolt shall refund to you all pre-paid fees for basic hosting services (shared, dedicated and/or managed) for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment; (iii) you shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term and (iv) ServerBolt shall have the right to charge you an early cancellation fee of $50.00. If ServerBolt cancels this agreement prior to the end of the Term, ServerBolt shall not refund to you any fees paid in advance of such cancellation, and: (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; (ii) you shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term; and (iii) ServerBolt shall have the right to charge you an early cancellation fee of $50.00.
Billing & Payment. All fees for the Services shall be in accordance with ServerBolt's fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the times provided therein. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. ServerBolt may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance (or such lesser amount as may be required by law) for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due ServerBolt remains unpaid ten (10) days after such payment is due, ServerBolt, in its sole discretion, may immediately terminate this agreement, and/or withhold or suspend Services. There will be a $50.00 (or the equivalent amount in Canadian dollars) charge to reinstate accounts that have been suspended or terminated. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of ServerBolt) shall be paid by you.
You agree that ServerBolt may pre-charge fees for the Services to the credit card supplied by you during registration. Returned checks will be assessed a $30.00 charge. Wire transfers will be assessed a $30.00 charge.
Except as may be specifically stated to the contrary in any written agreement between you and ServerBolt, you shall be responsible to pay the amount of $0.85 for each Gigabyte of data traffic you incur in excess of your applicable monthly usage limit.
Special Provisions Applicable to Resellers. ServerBolt from time to time may offer reseller programs which will permit you to resell certain of ServerBolt's products and services, and be eligible for certain discounts, services and other promotions. A customer that participates in a reseller program is referred to herein as a "Reseller". To be eligible to participate in a reseller program, the Reseller may be required to meet certain requirements as provided in such reseller program. If you are a Reseller, the terms and conditions in this section (in addition to any terms or conditions contained in the reseller program - and the rest of these Terms of Service) are applicable to you.
When you resell the Services, the purchaser of those resold services becomes your customer (a "Reseller Customer"). A Reseller Customer is not a Customer of ServerBolt, and ServerBolt will not support any Reseller Customer. Reseller shall take all necessary measures to preclude ServerBolt from being made a party to any agreement with any Reseller Customer. As a Reseller, you are authorized to resell the Services identified in the applicable reseller program on a non-exclusive basis. ServerBolt reserves the right to market and sell its products and services through its own employees, other resellers and other representatives and retailers that may compete with you. The terms and conditions of such other relationships may differ from the terms of this agreement and the reseller program, and may be better. Reseller shall be responsible for billing, and collecting payments from, Reseller Customers. Reseller shall not withhold payments to ServerBolt under this agreement because of a failure of a Reseller Customer to make payments to Reseller. Reseller may set the prices to be paid to it by Reseller Customers for any of the resold Services. Reseller shall provide all support (including, without limitation, customer support, first level support, second level support, and other technical support) for Reseller Customers. Reseller shall pay all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, state, provincial, or local, however designated, which are levied or imposed on ServerBolt and Reseller under this agreement and any and all transactions between Reseller and Reseller Customers. Reseller shall not resell the Services under ServerBolt's brand name. Reseller shall be solely responsible for compliance with any regulations governing the export of the Services (or any portion thereof). Nothing in this agreement constitutes a license to Reseller to use or resell the Marks (as defined below).
ServerBolt as Reseller or Licensor. ServerBolt is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ("Non-ServerBolt Product"). ServerBolt shall not be responsible for any changes in the Services that cause the Non-ServerBolt Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-ServerBolt Product either sold, licensed or provided by ServerBolt to you or purchased directly by you used in connection with the Services will not be deemed a breach of ServerBolt's obligations under this agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of Non-ServerBolt Product are limited to those rights extended to you by the manufacturer of such Non-ServerBolt Product. You are entitled to use any Non-ServerBolt Product supplied by ServerBolt only in connection with your permitted use of the Services. You shall use your best efforts to protect and keep confidential all intellectual property provided by ServerBolt to you through any Non-ServerBolt Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. You shall not resell, transfer, export or re-export any Non-ServerBolt Product, or any technical data derived therefrom, in violation of any applicable United States, Canadian or foreign law.
IP Address Ownership. If ServerBolt assigns you an Internet Protocol address for your use, the right to use that Internet Protocol address shall belong only to ServerBolt, and you shall have no right to use that Internet Protocol address except as permitted by ServerBolt in its sole discretion in connection with the Services, during the term of this Agreement. ServerBolt shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to you by ServerBolt, and ServerBolt reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Caching. You expressly: (i) grant to ServerBolt a license to cache the entirety of the Customer Content and your web site(s), including content supplied by third parties, hosted by ServerBolt under this agreement; and (ii) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
CPU Usage. You agree that you shall not use excessive amounts of CPU processing on any of ServerBolt's servers. Any violation of this policy may result in corrective action by ServerBolt, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this agreement, which actions may be taken in ServerBolt's sole and absolute discretion. If ServerBolt takes any corrective action under this section, you shall not be entitled to a refund of any fees paid in advance prior to such action.
Bandwidth & Disk Usage. You agree that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by you on the Order Form (the "Agreed Usage"). ServerBolt will monitor your bandwidth and disk usage. ServerBolt shall have the right to take corrective action if your bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this agreement, which actions may be taken in ServerBolt's sole and absolute discretion. If ServerBolt takes any corrective action under this section, you shall not be entitled to a refund of any fees paid in advance prior to such action.
Property Rights. ServerBolt owns all right, title and interest in and to the Services' and ServerBolt's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Nothing in this Agreement constitutes permission to you to use, license or resell the Marks.
Your Conduct. In consideration of the availability, and your use, of the Services, you agree, while visiting or using ServerBolt not to knowingly or unknowingly:
- post, transmit, or otherwise distribute any information constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability including without limitation a material misrepresentation or breach of contract, or otherwise use ServerBolt or any of the Services in a manner which is contrary to law;
- defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including without limitation, rights relating to privacy and publicity;
- post, transmit, or otherwise distribute any inappropriate, profane, defamatory, infringing, confidential, or unlawful material or information;
- post, transmit, or otherwise distribute any information or software which contains , replicates, or distributes the data of, a virus, bot, trojan horse, worm or other harmful or disruptive component; nor allow your machine to be operated as a so-called "zombie" server;
- upload, post, publish, transmit, reproduce, or otherwise distribute in any way, information, software or other material obtained through ServerBolt or the Service, or any derivative work thereof, which is protected by copyright, or any other intellectual property right, without obtaining permission of the copyright owner or rightholder;
- impersonate or falsely represent your identity or association with any person, including a ServerBolt Person or another ServerBolt customer; and
- use, reproduce, sell, re-sell or otherwise exploit ServerBolt, or any of the Services, for any commercial purposes not authorized by these Terms and Conditions.
- use the Service to interfere with computer networking or telecommunications service of any user, host or network, by, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to "crash" a host
ServerBolt's Spamming Policy: ServerBolt has 'zero tolerance' for UBE/UCE (unsolicited bulk email/unsolicited commercial email). ServerBolt defines UBE/UCE as unsolicited broadcast or commercial email that is sent to addresses that do not affirmatively and verifiably request such material from that specific sender. ServerBolt's spamming policy is as follows:
- ServerBolt customers, and customers of ServerBolt customers or any user of bandwidth and/or services on ServerBolt's network (herein described as 'users') are prohibited from sending UBE/UCE. Users may be asked to produce records that verify that explicit affirmative permission was obtained from a recipient before a mailing was sent. ServerBolt may consider the lack of such proof of explicit affirmative permission to be a questionable mailing of UBE/UCE at its sole discretion;
- ServerBolt customers are prohibited from maintaining open mail relays on their servers. Ignorance of the presence or operation of an open mail relay is not and will not be considered an acceptable excuse for its (the open mail relay) operation. Multiple infractions of this policy will result in a discontinuation of service;
- ServerBolt customers will be notified in the event that they may be hosting sites listed as violators of the above policy. Again, failure to rectify such situations may be cause for termination;
- ServerBolt customers are prohibited from providing hosting services for websites that have been included in UBE/UCE. Hosting includes, but is not limited to, hosting website(s), providing DNS services as well as website redirect services;
- Valid complaints received by ServerBolt may lead to immediate termination or suspension of the Services. ServerBolt may block traffic without prior notice to and from the IP address involved in the UBE/UCE complaint until the problem is resolved and preventative measures have been implemented to prevent the violation from recurring; and
- ServerBolt reserves the right to suspend and/or cancel permanently any and all services provided to the user without a notification. If your are in violation of any term or condition of the Usage Policy or your use of the Services disrupts or, in ServerBolt's judgment, could disrupt, ServerBolt's business operations, ServerBolt reserves the right to charge a liquidated damages fee of $500, in addition to and without limitation of any other rights or remedies it may have.
To report an incidence of abuse, please report it to abuse@ServerBolt.com.
Web Based Communications. To the extent ServerBolt may offer webmail or other web based email or communication services (collectively "Webmail"), these are provided on an "AS IS" basis without representations, warranties or conditions of any kind, and you acknowledge and agree that ServerBolt shall have no responsibility for, or liability in respect of, any aspect of the Webmail services, including without limitation for any lost or damaged data or any acts or omissions of ServerBolt. The components and any aspects of the Webmail services, including email, information and other data you store on the Webmail service, may be deleted by ServerBolt at any time for any reason or for no reason at all, in ServerBolt's sole discretion, with or without notice to you. ServerBolt shall have no obligation to maintain any content in your Webmail account or to forward any unread or unsent messages to you or any third party.
You agree to comply with all applicable laws and the Terms and Conditions in using a Webmail service and are solely responsible for all acts or omissions that occur under your account or password. In addition to other prohibited conduct described herein, you may not use the Webmail service to post, transmit or otherwise facilitate the creation or distribution of chain letters, junk e-mail, spam or any duplicative or unsolicited messages, surveys, contests or schemes. Further you may not forge headers or otherwise manipulate any identifiers serving to disguise the origin of any content transmitted using the Webmail service.
Service Modifications. You acknowledge and agree that ServerBolt reserves the right at any time to modify or discontinue any of the Services with or without notice to you, and that ServerBolt will not be responsible or liable, directly or indirectly, to you or any other person in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such modifications or discontinuance.
Your Warranties. You shall be solely responsible for the development, operation and maintenance of your web site, online store and e-commerce activities, for all products and services offered by you or appearing online and for all contents and materials appearing online or on your products, including, without limitation: (i) the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products; (ii) ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person; and (iii) ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. You shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. You shall be solely responsible for the payment or satisfaction of any and all taxes associated with your web site and online store.
You shall be responsible for the security and confidentiality of any customer information (including, without limitation, customer credit card numbers) that you may receive as a result of your web site or online store.
You represent and warrant to ServerBolt that you own or have the right to use the Customer Content and material contained therein, including all text, graphics, sound, music, video, programming, scripts and applets, and that the use, reproduction, distribution and transmission of the Customer Content and any information and materials contained therein does not, and will not: (i) infringe or misappropriate any copyright, patent, trademark, trade secret or any other proprietary right of a third party; (ii) violate any criminal laws; or (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation. You grant ServerBolt the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
Disclaimer of Warranty. You agree to use all Services and any information obtained through or from ServerBolt, at your own risk. You acknowledge and agree that ServerBolt exercises no control over, and accepts no responsibility for, the content of the information passing through ServerBolt's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF ServerBolt, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, A "ServerBolt PERSON") MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT ServerBolt PROVIDES. NO ServerBolt PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. ServerBolt IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY ServerBolt. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY ServerBolt PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this agreement.
Indemnification. You agree to indemnify, defend and hold harmless ServerBolt and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of the Services; (ii) any violation by you of the Terms and Conditions; (iii) any breach of any representation, warranty or covenant of yours contained in this agreement; or (iv) any acts or omissions of yours. The terms of this section shall survive any termination of this agreement.
Limitation of Liability. You agree that no ServerBolt Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to ServerBolt at the time) which may exist in the Services or ServerBolt's equipment used to provide the Services. Under no circumstances, including negligence, shall any ServerBolt Person be liable for any direct, indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by you, any of your customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if ServerBolt has been advised of the possibility of such damages. No ServerBolt Person shall be liable to you, any of your customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, termination of the Services, alleged inadequacy of customer support, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, bots, worms, defects, delays in operations, denial of service attack, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to your records, programs, equipment or services.
Notwithstanding anything to the contrary in this agreement, ServerBolt's maximum liability under this agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by you for the Services which gave rise to such damages, losses and causes of actions.
You understand, acknowledges and agrees that if ServerBolt takes any corrective action under this agreement because of an action of you or one of your customers or a Reseller Customer, that corrective action may adversely affect other customers of yours or other Reseller Customers, and you agree that ServerBolt shall have no liability to you, any of your customers or any Reseller Customer due to such corrective action by ServerBolt.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this agreement. The terms of this section shall survive any termination of this agreement.
Force Majeure. ServerBolt shall not be liable for failure or delay in performing it obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
Governing Law & Arbitration. This agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein without regard to the conflict of law provisions thereof. Any controversy, claim or dispute arising out of or relating to these Terms and Conditions, your use of ServerBolt or Services, or the relationship which results from these Terms and Conditions, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms and Conditions which cannot be amicably resolved, even if only one of the parties declares that there is a difference (collectively, a "Claim"), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Hamilton, Ontario in English and governed by Ontario law pursuant to the Arbitrations Act (Ontario). The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. You agree to waive any right you may have to commence or participate in any class action against ServerBolt related to any Claim and, where applicable, you also agree to opt out of any class proceedings against ServerBolt. Notwithstanding the foregoing, ServerBolt reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts, and ServerBolt reserves the right to join you as a party in court proceedings that ServerBolt may have to bring against persons who are not a party to this agreement whether your liability is on a joint or several basis with them.
Assignment. You shall not have the right to assign this agreement without the prior written consent of ServerBolt. This agreement shall be binding upon and inure to the benefit of you and ServerBolt and all successors, administrators, executors and permitted assigns.
Entire Agreement, Severability. This agreement, together with the Order Form and any other documents or agreements specifically identified in this agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements. If any provision of this agreement shall be held to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.
You hereby represent that if you are an individual, you are over 18 years of age, or if you are a corporation, limited partnership or other legal entity, that you are duly organized, validly existing and in good standing under the laws of the jurisdiction of your organization and the individual acting on your behalf is duly authorized to accept, execute and deliver this agreement.
Trademarks. All products, brands and company names and logos used on ServerBolt are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on ServerBolt without the express written consent of ServerBolt or the owner of the mark, as appropriate, is strictly prohibited.
Submission of Ideas and/or Suggestions.
Miscellaneous. This is the entire agreement between ServerBolt and you pertaining to your use of the Services and supercedes any prior agreements between you and ServerBolt with regard to this subject matter. ServerBolt's failure to insist upon or enforce strict performance of any right or provision of this agreement shall not constitute or be construed as a waiver of any right or provision. If any of the provisions (or parts thereof) contained herein are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) contained herein. All amounts expressed herein are in U.S. dollars, however, ServerBolt reserves the right to convert them to Canadian dollar equivalents at prevailing exchange rates. The parties have required that this agreement and all documents relating thereto be drawn up in English. Les parties ont demande que cette convention ainsi que tous les documents que s'y rattachent soient rediges en anglais.
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