DEDICATED SERVER AGREEMENT (Agreement)
BETWEEN
NetRover Inc., an Ontario corporation (we, us, our)
AND
Customer Name: _____________________________________(you, your)
E-mail Address: _____________________________________________
Mailing Address: _____________________________________________
Telephone: _______________________________
Fax Number: ____________________________
who have agree to the following:
1.0 DEFINITIONS
1.1 "Customer" means the person who orders the Dedicated Server from us and has obligations for the Dedicated Server hereunder.
1.2 "Customer Data" means all supporting data files and data structures provided by Customer for its Dedicated Server.
1.3 "Dedicated Server" means our server space and software services provided to the Customer including but not limited to the HTTP service, FTP service, SMTP service, POP service, server extensions, third-party software, and CGI library scripts.
1.4 "Physical Server" means our serving computers, hardware and operating system, and software necessary to operate and support the Dedicated Server in accordance with this Agreement.
2.0 SCOPE OF SERVICES
We will provide you with the following specific services:
2.1 Physical Server Hardware and Software Services. We will provide the Physical Servers and other computer and operating-system software to operate and support the Dedicated Server in a manner acceptable in the industry. We are not responsible for the Customer Data residing on the Dedicated Server. You are ultimately and solely responsible for the backup of Customer Data stored on your Dedicated Server.
2.2 Physical Server Set-Up and Updating. We will configure the Dedicated Server, and Customer will load the Customer Data onto the server computers so as to create a fully functional Internet presence. After the Dedicated Server is loaded, set up with the Customer Data, and is fully operational, Customer will be responsible for all server content management, including but not limited to security, backup and data protection of any kind.
2.3 Server Support. If you require physical access to the Physical Server for purposes of installing or maintaining of software or hardware you agree to pay us the current rate of $100 per hour, with a minimum billing to you of three (3) hours.
2.4 Physical Server Connection and Access. We will provide connection of the Dedicated Server to the Internet, including all telecommunications equipment and connections for the Dedicated Server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. We will use our best efforts to provide uninterrupted Physical Server connection and access, except for scheduled maintenance downtime and any interruption to the Physical Server connection and access beyond our control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches.
2.5 Maintenance Services. You agree to periodically-scheduled maintenance downtime periods. We will provide prior notice of the maintenance downtime, except when circumstances beyond our control limit our ability to do so.
We will perform maintenance services as we determine reasonably necessary to maintain the continuous operation of the Dedicated Server. Provided, however, if our required maintenance services are due to your removal of needed operating software or if your actions have otherwise adversely affected the normal functionality of the Dedicated Server, then you agree to pay our related maintenance fees as in 2.3 above to remedy the situation.
2.6 Hardware, Equipment and Software. You are responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access us. We make no representations, warranties, or assurances that your equipment will be compatible with our service.
3.0 PAYMENT TERME
You agree to the following payment terms in consideration for the services provided:
3.1 Set-Up Fee. There is no set-up fee.
3.2 Service Fee. You will pay us a monthly Service Fee for the services we provide under this Agreement according to our current Dedicated Server Price Schedule, which is available upon request. The Service Fee is billed to you at the beginning of your billing cycle and/or 30 days prior to each month’s services and is due before each month’s service is rendered. The Service Fee is subject to adjustment, with 60 days prior notice, according to our current Dedicated Server Price Schedule.
3.3 Taxes. The fees on the Price Schedule do not include any federal, provincial, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement, all of which you are responsible for. Any sales or similar taxes on the sale of your products and services to end users shall also be your sole responsibility.
4.0 REPRESENTATIONS AND WARRANTIES
Our obligations under this Agreement are conditioned upon the following representations and warranties:
4.1 Compliance with Law. You represent and warrant that you will comply with all applicable state, provincial, municipal and federal laws in your performance of this Agreement and in the use and operation of the Dedicated Server, including laws governing technology, software and trade secrets. You agree to comply with rules and regulations of your domain name registrars and other Internet authorities.
4.2 Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.
4.3 Non-Infringement. You represent and warrant that your performance of this Agreement and providing your web service, including the software or data files, shall not infringe the intellectual property or other proprietary rights of any third party.
4.4 Our Performance. Our services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with our obligations as defined by this Agreement.
5.0 LIMITATIONS ON LIABILITY
5.1 Force Majeure. We are not liable for failure to fulfill our obligations hereunder if such failure is due to causes beyond our reasonable control, including, without limitation, actions or failures to act of Customer or Customer’s customer, acts of God, fire, catastrophe, governmental prohibitions or regulations, viruses which did not result from the acts or omissions of us, our employees or agents, national emergencies, insurrections, riots or wars, or strikes, lockouts, work stoppages or other labor difficulties. The time for any performance required hereunder shall be extended by the delay incurred as a result of such act of force majeure, and we will act with diligence to remedy delays caused by such force majeure events.
5.2 Disclaimer of Warranties. EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.
5.3 You expressly agree that use of our Dedicated Server is at your own risk. Neither we, nor our employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warrant that our service will be uninterrupted or error free; nor do we make any warranty as to the results that may be obtained from the use of our services or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through our services, unless otherwise expressly stated in this Agreement.
5.4 Under no circumstances, including negligence, will we, our officers, agents or anyone else involved in creating, producing or distributing our service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service. We will further not be liable for results from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. You acknowledge that this paragraph shall apply to all content on the Dedicated Server.
5.5 Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed two times the actual dollar amount which you paid during the billing month period during which the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, damages for loss of data, files, profits, good will, time, savings or revenue.
6.0 TERMS AND TERMINATION
The following describes the effective date, duration and methods of termination:
6.1 Effective Date. The Effective Date of this Agreement is the last date of execution appearing below.
6.2 Contract Length and Cancellation. The minimum contract period for a Dedicated Server is one year. In the event you cancel your service, you will be charged in full for the entire length of the year in which you canceled your service hereunder.
6.3 Duration. This Agreement will commence on the Effective Date and continue on a year-to-year basis, unless one month’s written notice of cancellation is given prior to the end of any one year term.
6.4 Breach or Default. In the event we terminate this Agreement because of a breach of this Agreement by you, you will be charged in full for the remainder of the term year in which the breach occurred. Each of the following constitutes a breach or default of this Agreement:
a) your failure to pay the current month's Service Fee (including applicable taxes) by the tenth day of the month for which the service is being rendered, or
b) your violation of any one of sections 4.1, 4.2, 4.3, 8.0, or 9.2.
6.5 Special Lien on Personal Property. We retain a special lien on any of your personal property in our possession to secure any payment amount you may owe us under this Agreement.
7.0 OWNERSHIP RIGHTS
We acknowledge that all right, title and interest in the Customer Data shall be solely owned by the Customer. We own or have licensed all server software. In the event that we elect, at our option, to provide custom software to you, this software will be licensed to you for use only on our Dedicated Server(s) on a non-exclusive, royalty-free, fully-paid basis according to the terms of this Agreement. You are responsible for the registration, renewal and control of your domain names unless we separately contract to provide those services.
8.0 ACTIVITIES SUBJECT TO IMMEDIATE DEACTIVATION
You agree to abide by our Acceptable Use Policy at:http://www.home.netrover.com/index.htm. We reserve the right to modify, and/or change the definitions of system abuse which entitle us to terminate Customer’s access to the Internet. Any Dedicated Server that is used for illegal, abusive or unethical activity may be immediately deactivated by us without warning to you. Illegal, abusive or unethical activities include, but are not limited to, pornography, obscenity, violations of privacy, spoofing, phishing, hacking, spreading computer virus, harvesting of screen names, promotion of gambling, and any harassing or harmful materials or uses, as determined by us. You agree to indemnify and hold us harmless from any claim resulting from your publications or use of illegal, abusive or unethical materials or illegal, abusive or unethical activities. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we are not required to give notice before deactivating your use of our services if, in our discretion, your use is or results in illegal, abusive or unethical activities. We have the right, but not the obligation, to monitor any activity and content associated with your web sites or our services. If a Dedicated Server is disabled for such activities, the regular monthly fees will continue for the duration of the current term.
We reserve the right to report any activity that we suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental request, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history and posted content. You hereby consent to such action.
We may, at our sole discretion and without notice, reject incoming emails sent to an email address which has been suspended or revoked, and that if we do so, we bears no obligation to notify the sender or you that the email has been rejected. We will attempt to give you notice if your Dedicated Server has been deactivated.
9.0 MISCELLANEOUS
9.1 Public Nature of Internet. Please understand that all information submitted on the Dedicated Server shall be considered publicly accessible. Important and private information should be protected by you. For example, we are not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that you may use.
9.2 Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political messages. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we reserve the right to immediately deactivate your use of our service if we discover such activity. Further, you agree to indemnify and hold us harmless from any claim resulting from your distribution of electronic mail or use of electronic mail services provided through this Agreement.
9.3 Governing Law and Legal Fees. This Agreement will be interpreted and applied in accordance with the laws of the province of Ontario, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees, whether or not a suit is actually filed.
9.4 Control and Ownership of IP. We maintain and control ownership of all IP numbers and addresses that may be assigned to you, and we reserve, in our sole discretion, the right to change or remove any and all IP numbers and addresses.
9.5 Resale of Services and Flow-down of Obligations. You may resell space on your own Dedicated Servers but you must first obligate any such resale user to the same terms of this Agreement and incorporate into that resale all of our rights, including our rights regarding content and activity.
9.6 Age. If you are a natural person, you certify that you are at least 18 years of age.
9.7 Transfer. Neither this Agreement nor any interest herein may be assigned in whole or in part, by either party hereto without the prior written consent of the NetRover Inc.
9.8 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understanding, and agreements.
9.9 Binding Effect. Subject to the limitations herein expressed, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns.
9.10 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions shall remain in full force and effect.
9.11 Notices. All notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do execute this instrument, with each party warranting their ability to enter into this Agreement for the person or entity herein named as a party hereto.
Customer ___________________________________________
By : _________________________________________
Date:_____________________
NetRover Inc.
By : _________________________________________
Date:_____________________
INSTRUCTIONS
After you have reviewed the Dedicated Server Agreement, please print, sign, date and fax it to (416) 213-8684.
Mail original to NetRover Inc. at address indicated below:
NetRover Inc.
106 - 93 Skyway Avenue
Etobicoke, Ontario
M9W 6N6 |
