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Terms Of Service
The following Terms of Service (TOS)
apply to ALL 235.ca customers:
235.ca services include, but are not limited to:
any act of preparing,
setting up, connecting, maintaining, terminating, or reconnecting
customers' account (including all billing data and the space on the
particular Web server that 235.ca provides to customers); any use by customers,
or any access provided to customers by 235.ca, of computing,
telecommunications, software, information, hardware, and equipment;
any act, or provision
of any service, by 235.ca to customers, related to Web hosting and
domain name registrations (including server usage and technical
support), regardless of duration and whether paid for or not;
any provision by
235.ca to customers, of any space, Internet connectivity, or electrical
power; any access or use
related to the 235.ca's Web site, including the Web site itself;
any other service
mentioned in the TOS; any other service
provided by 235.ca to customers, whether used or not; any other 235.ca
services that are used by customers, whether offered or provided by
235.ca to customers.
Ownership of Web Site
The legal owner of customers' Web sites and accounts with 235.ca will be
the individual or organization whose name is listed in 235.ca's database
as the owner. Customers will fully cooperate with and abide by any and all
of 235.ca's security measures and procedures in the event of any dispute
over ownership of customers' Web sites and accounts with 235.ca.
Illegal Use
235.ca servers may be used for lawful purposes only. Transmission,
storage, or distribution of any information, data, or material in
violation of any applicable law or regulation, or that may directly
facilitate the violation of any particular law or regulation is
prohibited. This includes, but is not limited to: copyrighted material;
trademarks; trade secrets or other intellectual property rights used
without proper authorization; material that is obscene, defamatory,
constitutes an illegal threat, or violates export control laws.
Additionally, in purchasing 235.ca services, all 235.ca customers certify
that they and/or the organization they represent in procuring services
from 235.ca are not, nor have been designated, a suspected terrorist as
defined in U.S. Executive Order 13224; are not owned or controlled by a
'suspected terrorist' as defined in U.S. Executive Order 13224; and are
not on, are not a member of, related to, associated with, or controlled by
any organizations on the list contained in the Annex to U.S. Executive
Order 13224 and all updates thereto.
Spamming
Sending unsolicited bulk and/or commercial messages over the Internet
(known as "spamming") is prohibited, regardless of whether or not it
overloads a server or disrupts service to 235.ca's customers. The term
"spamming" also includes, but is not limited to, maintaining an open SMTP
policy, engaging in spamming using the service of another ISP or IPP and
referencing in the spam a Web site hosted on a 235.ca server, and selling
or distributing software (on a Web site residing on a 235.ca server) that
facilitates spamming. Violators will be assessed a minimum fine of US$200
and will face immediate suspension. 235.ca reserves the right to
determine, in its sole and absolute discretion, what constitutes a
violation of this provision.
System and Network Abuse
Violations of system or network security are prohibited and may result in
criminal and civil liability including a fine of $500 per incident.
Examples of system or network security violations include, without
limitation the following: unauthorized access to or use of data, systems
or networks, including any attempt to probe, 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; interference with service to any user, host or network
including, without limitation, mail bombing, flooding, deliberate attempts
to overload a system and broadcast attacks; forging of any TCP-IP packet
header or any part of the header information in an e-mail or a newsgroup
posting.
Viruses and Other Destructive Activities
Use of 235.ca's services or equipment for creating or sending Internet
viruses, worms or Trojan horses, or for pinging, flooding or mail bombing,
or engaging in denial of service attacks is prohibited. It is also
prohibited for any customer to engage in other activity that is intended
to disrupt or interfere with, or that results in the disruption of or
interference with, the ability of others to effectively use 235.ca's
services and equipment (or any connected network, system, service or
equipment) or conduct their business over the Internet.
Copyright Violations
The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding
the use of copyrighted materials on the Internet. All 235.ca customers are
subject to the requirements of the DMCA. Individuals or entities
submitting notifications of copyright infringement by a 235.ca customer
(per the DMCA) to 235.ca must follow the below procedures. Copyright
infringement notifications submitted to 235.ca according to these
procedures will be processed within 21 days of receipt. Customers who are
the subject of a DMCA notification that meets the below criteria may be
subject to account termination at 235.ca's sole discretion.
DMCA Copyright Infringement Notification Requirements
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Signature of the copyright owner or a person authorized to act on the
copyright owner's behalf (the "Claimant").
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Identification of the copyrighted work(s) claimed to have been infringed.
-
Identification of the material claimed to infringe the copyright(s), and
enough information for 235.ca to locate it including URLs and specific
descriptions of the infringing material at each URL.
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The Claimant's name, address, and telephone number(s).
-
A statement that the Claimant has a good faith belief that use of the
disputed material is not authorized by the copyright owner or his agent.
-
A statement, under penalty of perjury, that the information in the
notification of copyright infringement is accurate and that the Claimant
is authorized to act on behalf of the copyright owner.
Adult Content
Pornography and sex-related merchandising are prohibited on 235.ca
servers. This includes sites that may infer sexual content or provide
links to adult content elsewhere. This is also true for sites that promote
any illegal activity or content that may be damaging to our servers or any
other server on the Internet, or provide links to such sites.
Child Pornography
The use of 235.ca's services to store, post, display, transmit, advertise
or otherwise make available child pornography is prohibited. 235.ca is
required by law, and will, notify law enforcement agencies when it becomes
aware of the presence of child pornography on, or being transmitted
through, its services.
Privacy
235.ca is concerned with the privacy of on-line communications and Web
sites. In general, the Internet is neither more nor less secure than other
means of communication, including mail, facsimile, and voice telephone
service, all of which can be intercepted and otherwise compromised. As a
matter of prudence, however, 235.ca urges its customers to assume that all
of their on-line communications are insecure. 235.ca cannot take any
responsibility for the security of information transmitted over 235.ca's
facilities.
Customer Responsibility
Customers are required to use the 235.ca network responsibly. This
includes respecting the other customers of 235.ca. 235.ca reserves the
right to suspend and/or cancel service with any customer who uses the
235.ca network in such a way that adversely affects other 235.ca
customers. While 235.ca may monitor its service electronically to
determine that its facilities are operating satisfactorily, as a general
practice, 235.ca does not monitor its customers' communications or
activities to determine whether they are in compliance with the TOS.
However, when 235.ca becomes aware of any violation of the TOS or other
user agreements, 235.ca may take any action to stop or correct such
violation, including, but not limited to, denying access to 235.ca's
services and equipment or to the Internet. In addition, 235.ca may take
action against a customer or a customer of such customer because of the
activities of such customer. 235.ca anticipates that customers who offer
Internet services will cooperate with 235.ca in any corrective or
preventive action that 235.ca deems necessary. Failure to cooperate with
such corrective or preventive measures is a violation of 235.ca policy and
235.ca reserves the right to take any such action even though such action
may affect other customers of the 235.ca customer.
Actions Taken by 235.ca
The failure by a customer to meet or follow any of the TOS is grounds for
account deactivation. 235.ca will be the sole arbiter as to what
constitutes a violation of the TOS. 235.ca reserves the right to remove
any account without prior notice and to refuse service to anyone at any
time. When 235.ca becomes aware of an alleged violation of its TOS, 235.ca
will initiate an investigation. During the investigation, 235.ca may
restrict a customer's access in order to prevent further potentially
unauthorized activity. Depending on the severity of the violation, 235.ca
may, at its sole discretion, restrict, suspend, or terminate a customer's
Web hosting account and/or pursue other civil remedies. If such violation
is a criminal offense, 235.ca will notify the appropriate law enforcement
authorities of such violation. An unlisted activity may also be a
violation of the TOS if it is illegal, irresponsible, or constitutes
disruptive use of the Internet. 235.ca does not issue credits for outages
incurred through service disablement resulting from TOS violations.
Violators of the policy are responsible, without limitations, for the cost
of labor to rectify any damage done to the operation of the network and
business operations supported by the network, and to respond to complaints
incurred by 235.ca.
Indemnification
235.ca customers agree to protect, defend, hold harmless, and indemnify
235.ca, any third party entity related to 235.ca (including, without
limitation, third party vendors), and 235.ca's executives, directors,
officers, attorneys, managers, employees, consultants, contractors,
agents, parent companies, subsidiaries, and co-subsidiaries with the same
parent company as 235.ca, from and against any and all liabilities,
losses, costs, judgments, damages, claims, or causes of actions,
including, without limitation, any and all legal fees and expenses,
arising out of or resulting in any from the customer's use of 235.ca's
services.
Disclaimer
The 235.ca service is provided on an as is, as available basis without
warranties of any kind, either express or implied, including, but not
limited to, warranties of merchantability, fitness for a particular
purpose or non-infringement. 235.ca expressly disclaims any representation
or warranty that the 235.ca service will be error-free, secure or
uninterrupted. No oral advice or written information given by 235.ca, its
employees, licensors or the like, will create a warranty; nor may you rely
on any such information or advice. 235.ca and its partners and suppliers
will not be liable for any cost or damage arising either directly or
indirectly from any transaction or use of the service.
Termination for Bankruptcy or Insolvency
If a customer becomes insolvent or any bankruptcy petition is filed by the
customer, or any third party against the customer, 235.ca may immediately
terminate provision of 235.ca's services to the customer without prior
notice or penalty. Such customer consents to the grant of relief from any
automatic stay of proceedings against 235.ca in such event.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER
NO THEORY OF LAW OR EQUITY, WILL 235.ca (INCLUDING, WITHOUT LIMITATION,
235.ca'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES,
CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES,
CO-SUBSIDIARIES WITH THE SAME PARENT COMPANY AS 235.ca, AFFILIATES,
THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE
INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING 235.ca'S SERVICES, BE
LIABLE FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS,
REVENUES DECREASE, EXPENSES INCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR
235.ca SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY
KIND ARISING OUT OF ANY USE OF, OR ANY INABILITY TO USE, ANY 235.ca
SERVICES EVEN IF 235.ca HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. 235.ca'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY
THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOS OR 235.ca'S
SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY
ACT OR OMISSION BY 235.ca OR 235.ca'S REPRESENTATIVES, OR UNDER ANY OTHER
THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE
ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE
TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE 3-MONTH PERIOD
PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION
AROSE.
Modifications
235.ca may discontinue, upgrade, replace, modify, or change in any way,
without limitation, any software, application, program, data, hardware,
equipment, or portions or components thereof, used to provide customers
with 235.ca's services. Certain changes to 235.ca's services may affect
the operation of customers' personalized applications and content. Each
customer is solely responsible, and 235.ca is not liable, for any and all
such personalized applications and content, except as expressly agreed to
by 235.ca.
Backup of Data
Except where 235.ca has expressly agreed in writing to the contrary,
customers are solely and entirely responsible, and 235.ca is in NO way
responsible, for the management and backup of all customer data, and all
updates, upgrades, and patches to any software that customers use in
connection with 235.ca services.
Third Party Licenses
235.ca makes a reasonable effort to provide customers with technologies,
developments, and innovations (collectively "Technologies"), part of which
may be licensed, or co-branded, from or by, third party entities. However,
235.ca 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, 235.ca specifically
disclaims all warranties of merchantability and and fitness for a
particular purpose for such Technologies. Furthermore, no customer will
hold 235.ca liable in any way for the revocation of any license, which has
been licensed to 235.ca. The use of the Technologies obtained from or
through 235.ca, or any other referred third party, whether directly or
indirectly, is at the sole risk of customers.
Non-235.ca Products
Any mention of non-235.ca products by 235.ca, its employees, or any third
party entity related to 235.ca is for information purposes only and does
not constitute an endorsement or recommendation by 235.ca. 235.ca
disclaims any and all liabilities for any representation or warranty made
by the vendors of such non-235.ca products or services.
235.ca's Intellectual Property
Customers will not, without 235.ca's express written consent, copy,
reproduce, republish, or otherwise use any material, in whole or in part,
that is located on 235.ca's Web site, and customers will not use any of
235.ca's trademarks, service marks, copyrighted materials, or other
intellectual property without 235.ca's express written consent. Customers
will not, in any way, misrepresent their relationship with 235.ca, attempt
to pass themselves off as 235.ca, or claim that customers are 235.ca.
Assignment
Customers may not assign or delegate their rights or obligations under the
TOS or other agreement for 235.ca's services, either in whole or in part,
without the prior written consent of 235.ca.
Minimum Age Requirement
235.ca customers must be at least 18 years of age. Any individual under
the age of 18 years ("Minor") must have a parent or guardian accept the
TOS in order for the Minor to become a 235.ca customer. A parent or
guardian who accepts the TOS on behalf of a Minor will be primarily liable
for ensuring complete and proper compliance with the TOS, including the
timely and full payment of the charges for 235.ca services, and such
primary liability will continue even when the Minor has attained the age
of 18, unless the parent or guardian obtains 235.ca's express written
consent to the contrary. Any acceptance of the TOS or any other agreement
for 235.ca's services will be deemed null and void to the extent that
235.ca will not be liable in any way as a result of the Minor's age or
legal incapacity or the Minor's use of 235.ca's services.
Governing Law and Severability
The TOS, and any other agreement for 235.ca services, will be governed by
and construed in accordance with the laws of Canada and or the United
States without reference to its conflicts of laws principles. Any
litigation or arbitration between a customer and 235.ca will take place in
Vancouver BC, and the customer will consent to personal jurisdiction and
venue in that jurisdiction. If any provision or portion of the TOS or
other 235.ca agreement is found by a court of competent jurisdiction to be
unenforceable for any reason, the remainder of the TOS or the agreement
will continue in full force and effect.
Force Majeure
235.ca will not be liable for delays in its performance of the TOS or
235.ca services caused by circumstances beyond 235.ca'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"). 235.ca 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 customers for the payment
of money due.Waiver and AmendmentAny waiver, modification, or amendment of
any provision of the TOS or other agreement for 235.ca services, initiated
by a customer, will be effective only if accepted in writing and signed by
an authorized representative of 235.ca.
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 235.ca and its customers. Each of 235.ca and its
customers 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, except as may be expressly provided herein.
Construction and Interpretation
Wherever in this TOS 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 division of the TOS 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 TOS. 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 TOS.
Complete Agreement and Exclusivity
The TOS, and/or any other specific agreement for 235.ca services,
constitutes the complete understanding and agreement between 235.ca and
its customers. Except when expressly agreed to the contrary in signed
writing by an authorized representative of 235.ca, the TOS supersedes any
other written (including digitized/computerized) agreement, oral
agreement, and/or agreement by conduct. This TOS, and/or any other
specific agreement for 235.ca services is between 235.ca and its customers
only and will not confer any rights in any third party except as otherwise
expressly provided by 235.ca.
235.ca Customer Billing Policy
The following Terms of Service constitute 235.ca's Billing Policy and
apply to ALL 235.ca customers:
Payments
All charges are shown in Canadian Dollars. Payments are to be made in CA
Dollars. 235.ca accepts the following types of payment:
Credit Card (Visa, MasterCard, American Express) via PayPal
All payments are due on the Account Statement Date.
Accounts that are thirty (30) days past due will be subject to suspension.
Reactivation of a hosting account is subject to a $25 service charge.
All past due and unpaid balances are subject to collection. In the event
of collection, you will be liable for costs of collection including
attorney's fees, court costs, and collection agency fees.
Additional items including dedicated IP addresses, SSL Certificates,
application installations, and monitoring/management services are
non-refundable.
Pricing
All prices quoted are subject to change at any time.
Statements
235.ca does not post-mail paper invoices or statements. They are emailed.
Fees
Cancellations and Refunds
Minimum 30 day notice is required and a cancellation request will result
in service terminating at the end of the month in which the 30th day
falls. Eg: A notice to quit received on June 15th will result in your
hosting account terminating on July 31st, and any monies prepaid will be
refunded to August 1st either via Paypal or by a CA$ cheque. If you do not
receive a confirmation of receipt of your notice to quit, please contact
235.ca as soon as possible.
235.ca does not monitor, and will not automatically cancel, plans for
problems related to domain name transfers, non-usage, Internic, your ISP,
or any other secondary issues not directly related to 235.ca's services.
Cancellation of services does not relieve the customer from paying any
outstanding balance owed on the account. 235.ca, reserves the right to
cancel any account, at any time, without notice, for any reason 235.ca
considers appropriate.
Billing/Price Changes
235.ca's policies and prices are subject to change without notice.
Last Updated: February 2008
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