THIS AGREEMENT FOR CANFONE.COM INC., (here-in-after referred to as “CANFONE.COM WEB SERVICES”) SERVICES (hereinafter referred to as the “Agreement”) is made and effective as of the date of acceptance, by and between you, (here-in-after referred to as “Client”) and CANFONE.COM WEB SERVICES,
WHEREAS, CANFONE.COM WEB SERVICES owns, distributes, and/or provides various products and services that enable entities to utilize, conduct business on, connect to, and publish to the Internet, including CANFONE.COM WEB SERVICES eSecure Hosting, CANFONE.COM WEB SERVICES, eStore Premium, CANFONE.COM WEB SERVICES eDedicated Servers.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. CANFONE.COM WEB SERVICES agrees to provide to client services as set forth in Exhibit A.
2. Payment and Invoicing.
2.1 In consideration of the performance of the CANFONE.COM WEB SERVICES, Client shall pay CANFONE.COM WEB SERVICES in advance the amount set forth in Exhibit E (“Contract Specifications”). Exhibit E is amended from time to time for the “CANFONE.COM WEB SERVICES” provided during the term of this Agreement.
2.2 Client shall receive a confirmation letter/invoice via e-mail and/or mail at the time Client contracts for the CANFONE.COM WEB SERVICES, which shall confirm the fees payable to CANFONE.COM WEB SERVICES. Thereafter, Client shall receive a monthly billing invoice/statement for the upcoming month, which shall indicate any changes in fees, which shall become effective upon thirty (30) days’ notice as set forth in Section 2.4 herein. All services are invoiced 10-15 days in advance, and must be paid in full by the first day of new the service period.
2.3 Client is responsible for all activities and charges resulting from Client’s use of the CANFONE.COM WEB SERVICES. Client agrees to pay all fees, bandwidth charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by CANFONE.COM WEB SERVICES in the event that Client’s account is terminated by CANFONE.COM WEB SERVICES or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the CANFONE.COM WEB SERVICES Services until Client notifies CANFONE.COM WEB SERVICES by calling (1-866-857-3140) or by sending an e-mail with account information to email@example.com and receiving a ticket tracking number.
2.4 Current rates for using the CANFONE.COM WEB SERVICES Service may be obtained by calling (1-866-857-3140) or visiting the CANFONE.COM WEB SERVICES website (http://www.canfone.com). CANFONE.COM WEB SERVICES reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time upon thirty (30) days’ (of end of current contract term) prior notice to Client. In addition, CANFONE.COM WEB SERVICES may institute special trial offers, from time to time which shall be reflected in the confirmation letter sent to Client upon sign up.
2.5 Late Fees. If CANFONE.COM WEB SERVICES does not receive the full amount of Client’s CANFONE.COM WEB SERVICES service account balance by the first day of a new service period, an additional 5.0% (or highest amount allowed by law per month) late charge will be added to Client’s bill and shall be due and payable. Client shall also be liable for all legal and collection fees arising from CANFONE.COM WEB SERVICES’s efforts to collect any unpaid balance of Client’s account(s). Account suspension may occur if payment is not received by 5th day of a new service period.
2.6 Penalties and Extra Fees. Client agrees to pay CANFONE.COM WEB SERVICES US$30.00, per occurrence, for bounced checks. Client agrees to pay CANFONE.COM WEB SERVICES US$35.00, per occurrence, for each chargeback issued against a transaction. Client agrees to pay CANFONE.COM WEB SERVICES US$30.00, per occurrence, for each credit reporting/collection agency filing that may be necessary to expedite receipt of payment, collect on overdue funds, or other related issues. Client agrees to re-imburse CANFONE.COM WEB SERVICES for all legal/court fees optained while attempting to collect client’s debt. Client agrees to pay CANFONE.COM WEB SERVICES US$50.00 for each re-activation of a suspended account. The US$50.00 re-activation fee is per account, with an account potentially containing multiple websites, servers, or other services. Charges may be incurred for Abnormal Support requests serviced on your account.
3. EMERGENCY SERVICES – 911 DIALING
3.1 Availability of E911 Dialing.
Canfone.com offers a form of 911 Service(s) (911 Dialing) that is similar to traditional 911 Service(s) but has some important differences and limitations when compared with enhanced 911 Service(s) (E911) available in most locations in conjunction with traditional telephone Service(s). With both traditional 911 and E911 Service(s), your call is sent directly to the nearest emergency response centre. In addition, with E911 Service(s), your call back number and address are visible to the emergency response centre call-taker. With Canfone.com 911 Service(s), your call is sent to a national emergency call centre. The call centre operator will request or confirm your location information and then transfer your 911 call to the emergency response centre nearest your location. You should be prepared to provide or confirm your address and call-back number with the operator. Do not hang up unless told directly to do so and if disconnected, you should dial 911 again.
3.2 Registration of Physical Location. You should ensure your location information, when registered with Canfone.com, is kept current at all times. In case you are not able to speak during the 911 call, the call taker would dispatch emergency response vehicles to your last registered address. You need to update your 911 Dialing information if you move your device to a different location and/or if you add a new line to your account. Regardless of what address you register for a, the national emergency response centre does not receive your phone number or physical location information when you place a 911 call. Your 911 Dialing Service(s) is activated when you subscribe to Canfone.com.
3.3 Service(s) Outages. 911 Dialing Service(s) will not function in the event of a power or broadband outage or if your broadband, ISP or Canfone.com Service(s) is suspended or disconnected. Following a power failure or disruption, you may need to reset or reconfigure your Device prior to utilizing the Service(s), including 911 Dialing.
3.4 User Responsibilities
(a)Changing Number /Adding/Porting a New Numbers. You must successfully register your location of use for each changed, newly added or newly ported number in order for 911 Dialing to function as intended. Regardless of what address you register for, the national emergency response centre does not receive your phone number or physical location information when you place a 911 call.
(b)Conveying Limitations to other household residents and guests. You should inform any household residents, guests and other persons who may be present at the physical location where you utilize the Canfone.com Service(s), of the important differences in and limitations of VoIP 911 Dialing Service(s) as compared with E911 Service(s), as set out above.
3.5 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service(s) as compared to traditional 911 Dialing over traditional public telephone networks.
3.6 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing Service(s) are answered or addressed by any local emergency response centre. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling centre. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling centre. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Canfone.com nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing Service(s) unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Canfone.com, its officers, directors, employees, affiliates and agents and any other Service(s) provider who furnishes Service(s) to you in connection the Service(s), from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service(s), including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service(s) to be able to use 911 Dialing or access emergency Service(s) personnel.
3.7 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing Service(s), you should consider having an alternate means of accessing traditional 911 or E911 Service(s) or disconnecting the Service
4. Responsibilities and Rights of Client.
4.1. Client Liaison. Client shall designate a contact person who shall act as a liaison between Client and CANFONE.COM WEB SERVICES. Client certifies to CANFONE.COM WEB SERVICES that he/she is not a minor. Client agrees to provide CANFONE.COM WEB SERVICES with accurate, complete and updated information required by the registration/initiation of the CANFONE.COM WEB SERVICES service (Client Registration Data), including Client’s legal name, address, telephone number(s), and applicable payment data ( e.g., credit card number and expiration date ). Client agrees to notify CANFONE.COM WEB SERVICES within thirty (30) days of any changes in Client Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use CANFONE.COM WEB SERVICES.
4.2 Acceptance of CANFONE.COM WEB SERVICES. Client shall have the right to evaluate the CANFONE.COM WEB SERVICES as set forth in Exhibit A for a period of thirty (30) days after initiation of the CANFONE.COM WEB SERVICES, at the charge, if any, set forth in Exhibit E or elsewhere offered by CANFONE.COM WEB SERVICES and confirmed in the confirmation letter. If Client determines that any CANFONE.COM WEB SERVICES Services do not reasonably satisfy the standards provided herein, then Client shall promptly notify CANFONE.COM WEB SERVICES of such deficiency. CANFONE.COM WEB SERVICES shall use commercially reasonable efforts to cure such deficiency . In the event CANFONE.COM WEB SERVICES is unable to cure such deficiency, Client’s sole and exclusive remedy shall be the refund of the amounts paid by Client under the Agreement, and the right to terminate this Agreement.
4.3 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided CANFONE.COM WEB SERVICES. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and InterNic.
4.4 Third-Party Software. Third-Party software available through the CANFONE.COM WEB SERVICES Service may be governed by separate end user licenses. By using the CANFONE.COM WEB SERVICES and the third-party software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software.
4.5 Management of Site. Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, CANFONE.COM WEB SERVICES Terms of Service (TOS), and any generally applicable guidelines and service standards published by CANFONE.COM WEB SERVICES. Client warrants that its content hosted on the CANFONE.COM WEB SERVICES network (I) will conform to the CANFONE.COM WEB SERVICES Terms of Service (TOS) attached hereto as Exhibit B; (II) will not infringe and will not contain any content that infringes on or violates any copyright, Canadian patent or any other third-party right; and (III) will not contain any content which violates any applicable law, rule or regulation. CANFONE.COM WEB SERVICES shall have no obligations with respect to the content available on or through any site hosted on the CANFONE.COM WEB SERVICES network, including, but not limited to, any duty to review or monitor any such content. CANFONE.COM WEB SERVICES reserves the right to block any site that violates any of the above-stated terms, or which in CANFONE.COM WEB SERVICES’s sole discretion, CANFONE.COM WEB SERVICES deems objectionable or offensive, or otherwise violates a law or CANFONE.COM WEB SERVICES policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein
4.6 Service Level Agreement (SLA). CANFONE.COM WEB SERVICES is required maintain a Service Level Agreement (SLA) to guarantee network/equipment reliability and performance. The CANFONE.COM WEB SERVICES Service Level Agreement (SLA) is set forth in Exhibit C. CANFONE.COM WEB SERVICES reserves the right to change or modify this SLA to benefit the Client, and will post changes to online location currently housing this SLA at time of modification, which will be made available to Client. Except as set forth in this SLA, CANFONE.COM WEB SERVICES makes no claims regarding the availability or performance of the CANFONE.COM WEB SERVICES network or servers. Specific terms/points of this SLA may be adjusted on a case by case basis by the specific details of the “Contract Specification” section of this agreement. In case of difference terms/points in SLA and “Contract Specification”, the “Contract Specification” terms/points prevail over this general SLA policy. The “Contract Specification” signed/agreed by client, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability.
4.7 Co-Location/Equipment Insurance. Client is responsible for providing insurance coverage for all co-located equipment in the CANFONE.COM WEB SERVICES Data Center and/or all customer property not supplied and maintained by CANFONE.COM WEB SERVICES in a CANFONE.COM WEB SERVICES facility or at the customer’s premise. CANFONE.COM WEB SERVICES is not responsible for such equipment, but is required to provide a reasonable amount of protection for equipment, including, but not limited to; alarm systems, surge protection, security cameras, video recordings, monitoring, theft prevention, racking equipment, and climate control.
5. Confidentiality and Proprietary Rights.
5.1 Confidentiality. Both parties acknowledge that: (I) the other party is the owner of valuable trade secrets, and other proprietary information and license same from others; (II) in the performance of the CANFONE.COM WEB SERVICES, both parties shall receive or become aware of such information as well as other confidential and proprietary information concerning the other party’s business affairs, finances, properties, methods of operation and other data (here-in-after collectively referred to as (“Confidential Information”), and; (IV) unauthorized disclosure
of any Confidential Information would irreparably damage the owner or supplier of such Confidential Information.
5.2 Non-Disclosure. Both parties agree that, except as directed by the other party or as provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party or that come into the party’s possession or under the party’s control that relates to Confidential Information; and that upon termination of this Agreement, both parties will turn over to the other party all documents, papers, and other matter in such party’s possession or under such party’s control that contain or relates to such Confidential Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential. Confidential Information shall not include information that: (I) is already lawfully known to or independently developed by the receiving party; (II) is in the public domain through no fault of the receiving party; (III) is lawfully obtained from a third party without restrictions; or (IV) is required to be disclosed by law, regulation or governmental order.
6.1 Warranty. While Canfone.com performs backups of client data for the case of disaster recovery. We shall have no liability for any loss or damage to any data stored on your account under any circumstances. The client is responsible for backing up their data unless explicitly stated otherwise. Client understands that except for information, products, or services clearly identified as being supplied by CANFONE.COM WEB SERVICES, neither CANFONE.COM WEB SERVICES, nor any of its affiliates, operates or controls any information, products, or services on the Internet in any way and that, except for such CANFONE.COM WEB SERVICES identified information, services or products, all merchandise, information, and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with CANFONE.COM WEB SERVICES or its affiliates. The terms and conditions for the use of CANFONE.COM WEB SERVICES eSecure Hoisting, eStore Premium, eDedicated Servers, and/or any other software/services provided by CANFONE.COM WEB SERVICES are governed by the terms of each product’s end user license. ALL SOFTWARE MADE AVAILABLE IN CONJUNCTION WITH THE CANFONE.COM WEB SERVICES ARE PROVIDED ON AN “AS IS ” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CANFONE.COM WEB SERVICES DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE CANFONE.COM WEB SERVICES; INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND THAT PORTIONS OF THE INTERNET CONTAIN MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT AND MAY BE OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. CANFONE.COM WEB SERVICES HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY CANFONE.COM WEB SERVICES, ITS EMPLOYEES, LICENSERS, OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL CANFONE.COM WEB SERVICES OR ANYONE ELSE INVOLVED IN ADMINISTERING OR DISTRIBUTING THE CANFONE.COM WEB SERVICES SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE CANFONE.COM WEB SERVICES and/or CANFONE.COM WEB SERVICES SOFTWARE INCLUDING BUT NOT LIMITED TO reliance on any information obtained, or stored, on the CANFONE.COM WEB SERVICES network; or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction, or unauthorized access to CANFONE.COM WEB SERVICES records, programs, or services. CANFONE.COM WEB SERVICES is not liable for damage caused by lightning strikes or Acts of God to customer premise equipment, co-located equipment, or customer property connected to such. Client should take proper precautions to protect their property from damage by lightning. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, IN SUCH jurisdictions, CANFONE.COM WEB SERVICES’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6.2 Indemnity. Each party will indemnify the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable legal fees resulting from the indemnifying party’s material breach of any duty, representation or warranty under this Agreement, except those resulting from the gross negligence or knowing or willful misconduct of the other party. Such indemnity shall be conditional upon (I) prompt notification to the other party of any indemnifiable claim; (II) the indemnifying party’s control of all settlement and other negotiations; and (III) the indemnified party’s full cooperation with respect to such claim.
6.3 Limitation of Liability. CANFONE.COM WEB SERVICES shall not be liable to Client for more than the aggregate amounts paid to CANFONE.COM WEB SERVICES under this Agreement.
6.4 Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS.
7. Terms and Termination .
7.1 Term. This Agreement will become effective on the date indicated in the “Contract Specification” section of this Agreement, and will remain in effect for the term indicated in same. This agreement is automatically renewed for same originating term as indicated in the “Contract Specification”, section of this agreement at end of current term, unless Client terminates this Agreement (via fax, mail, or online cancellation form) to CANFONE.COM WEB SERVICES within twenty-four (24) hours prior or following end of current service term, or CANFONE.COM WEB SERVICES terminates this Agreement upon fifteen (15) days written notice (via fax, mail, or email) to Client, prior to end of current service term.
7.2 Termination. In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement, by giving ten (10) days prior notice thereof (in writing by fax or mail); provided, however, that this Agreement shall not terminate at the end of said ten (10) days notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said ten (10) days.
7.3 Client may terminate this Agreement at any time for any or no reason upon written notice (via fax, mail, or online cancellation form) to CANFONE.COM WEB SERVICES, within twenty-four (24) hours prior or following end of current service term. CANFONE.COM WEB SERVICES may terminate this Agreement at any time for any or no reason upon fifteen (15) days written notice (via fax, mail, or email) to Client, prior to end of current service term. Notwithstanding the foregoing, CANFONE.COM WEB SERVICES may immediately block Client’s site or immediately terminate Client’s access to and use of the CANFONE.COM WEB SERVICES Service and software; if at CANFONE.COM WEB SERVICES’s sole discretion, it deems any information contained in Client’s site to violate CANFONE.COM WEB SERVICES’s Terms of Service (TOS), CANFONE.COM WEB SERVICES’s Basic Policy and Service Guidelines (AUP), or to be otherwise objectionable or offensive or to violate the law, in accordance with Section 4.6 herein. Client’s only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of CANFONE.COM WEB SERVICES in operating the CANFONE.COM WEB SERVICES Service, any change in the content of the CANFONE.COM WEB SERVICES Service, or any change in the amount or type of fees charged in connection with the CANFONE.COM WEB SERVICES Service, is to terminate this Agreement by delivering notice to CANFONE.COM WEB SERVICES, effective the day CANFONE.COM WEB SERVICES receives notification of termination or any future date specified which is acceptable to CANFONE.COM WEB SERVICES. CANFONE.COM WEB SERVICES may terminate immediately any Client who misuses or fails to abide by this Agreement, CANFONE.COM WEB SERVICES’s Terms of Service (TOS), or CANFONE.COM WEB SERVICES’s Basic Policy and Service Guidelines (AUP) CANFONE.COM WEB SERVICES may terminate without notice Client’s access to and use of the CANFONE.COM WEB SERVICES Service and Software upon a breach of this Agreement. If CANFONE.COM WEB SERVICES denies you access to the CANFONE.COM WEB SERVICES, you shall have no right to obtain any credit(s) otherwise due to you. CANFONE.COM WEB SERVICES shall have no responsibility to notify third-party providers/users of services, merchandise, or information, associated with your CANFONE.COM WEB SERVICES Service, nor shall CANFONE.COM WEB SERVICES have any responsibility for any damages that result from the lack of such notification.
7.4 In the event that CANFONE.COM WEB SERVICES offers a money back guarantee, or 30 day refund policy, as specified in the “Contract Specifications” section of this agreement, violation of the CANFONE.COM WEB SERVICES Terms of Service (TOS) or CANFONE.COM WEB SERVICES Basic Policy and Service Guidelines (AUP) makes such an offer null and void. Client agrees to waive such rights to a refund if such
a violation occurs.
7.5 Surviving Sections. The following paragraphs shall survive the termination of the Agreement: 5 (“Confidentiality and Proprietary Rights”), 6 (“Warranties/Indemnity”) and 8 (“General”).
8.1 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties’ respective successors, purchasers, and permitted assigns.
8.2 Notices. Any notices or legal communication under this Agreement shall be in writing (via fax or mail) and shall be deemed delivered to the party receiving such communication at the address specified below (I) on the delivery date if delivered personally to the party, or a representative of the party; (II) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (III) five business days after the mailing date, whether or not received, if sent by Canadian mail, return receipt requested; (IV) on the delivery date if transmitted by confirmed facsimile.
If to Canfone.com Web Services:
10th Floor, 60 Rue St-Jacques Ouest
H2Y 1L5, CANADA
If to Client:
Contact information provided in “Contract Specification” section of this Agreement or Client Information section filled in when client registers online for services.
8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Montreal, Canada, except with regard to it’s conflict of law rules.
8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of the Agreement or any of any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. Neither party hereto shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure of transport, accident, war, riot, insurrection, Enemy of the Queen, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for forty-eight (48) hours, the other party may terminate this Agreement without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
8.9 Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which is different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
Terms of Service (Exhibit B)
Canfone.com’s services may only be used for lawful purposes. Transmission of any material in violation of International, Canadian, or U.S. law is prohibited. This includes but is not limited to: material legally judged to be threatening or obscene, or material protected by trade secret laws.
1. If you are found in violation of the Canfone.com Terms of Service. Your account may be suspended without notice.
Examples of content that is not acceptable on Canfone.com Servers: “Pirated software” or “Warez”, “Hacker programs and/or archives”, “IRC Bots”, “Gambling Related”, “Copyrighted Mp3′s”.
You specifically agree to indemnify and hold Canfone.com harmless from any claims resulting from a breach of these terms, and/or their use of the service, which damages another.
Warez – Includes pirated software, ROMS, emulators, phreaking, hacking, password cracking. IP spoofing, etc., and encrypting of any of the above. Also includes any sites which provide “links to” or “how to” information about such material.
2. Adult content is not permitted on eSecure Hosting Plans.
Adult Content or links to Adult Content are not permitted on Canfone.com eSecure hosting. Contact us for availability on select eDedicated server plans.
3. Unsolicited E-mail
Unsolicited e-mail (or SPAM) in any shape or form is NOT permitted and is grounds for immediate account termination. Mailing lists via a mailing list manager are acceptable as long as the list are OPT-IN list that people have signed up for.
4. IRC and Chat Rooms
Internet Relay Chat (IRC) traffic is not permitted on our eSecure Hosting plans or eDedicated Servre plans in any of its many forms including, but not limited to: bots and IRC servers.
5. Web Site Hosting And Email
We make no representation and give no warranty as to the accuracy or quality of information received by any person via the server. Although our eSecure hosting plans are backed by RAID hard-drives, and additional backup hard-drives we shall have no liability for any loss or damage to any data stored on your account.
You represent, undertake and warrant to us that you will use the Web Site allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that you will not use the server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorize or permit any other person to do so.
You shall not post, link to or transmit: (a) Any material, which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way. (b) Any material containing a virus or other hostile computer program. (c) Any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorized use of your account or breach of security, including loss, theft or unauthorized disclosure of your password or other security information.
6. Intellectual Property Rights
You shall obtain any and all necessary consents and clearances to enable you lawfully to make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of your proposed domain name.
7. Service Availability
Maintaining network reliability to meet or exceed our guarantee is our number one priority, however ,we shall not, in any event, be liable for interruptions of service that go beyond the dollar amount of the hosting plan or server plan you are subscribed to in accordance with our guarantee policy.
Canfone.com expects that its subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of on-line communications. A subscriber’s failure to comply with those laws will violate Canfone.com policy.
9. Limitation Of Liability
All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded.
Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services, which are the subject of any such claim. In any event no claim shall be brought unless you have notified us of the claim within 6 months of it arising. In no event shall we ever be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
11. Mailing Address
Any notice to be given by either party may be sent to:
10th Floor, 60 Rue St-Jacques Ouest
H2Y 1L5, CANADA
All payments must be in US Dollars or Canadian Dollars.
Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you. Your Billing is based on the date that you signed up with us. (ex. If you joined us on June 25th, 2000 Your Credit Card will be charge on the 25th of every month)
13. Entire Agreement
These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation, which has not been made expressly in this Agreement.
Service Level Agreement (Exhibit C)
Canfone.com is proud to offer an exceptional level of performance, reliability, and service. That is why we are making commitments to our customers in the form of a Service Level Agreement (SLA) which provides certain rights and remedies regarding the performance of the Canfone.com Web Services network. The Canfone.com Web Services Service Level Agreement (SLA) guarantees our network/equipment reliability and performance. This Service Level Agreement (SLA) applies to customers of Canfone.com’s eDedicated servers, eSecure hosting, and eStore Premium online services.
UPTIME GUARANTEE: Canfone.com Web Services maintains a 99.917% network uptime service level. If Canfone.com Web Services fails to meet it’s uptime guarantee, and it is not due to one of the exceptions below, partial credits will be made available to each Customer, upon request.
EXCEPTIONS: Customer shall not receive any credits under this SLA in connection with any failure or deficiency of the
Canfone.com Web Services network caused by or associated with:
Circumstances beyond reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, “Acts of God” (ie…fire, flood, earthquake, tornado, etc…), strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service Level Agreement
- Telco Failure (ie..Level 3™ and Peer1™ simultaneously cutting fiber lines) Backbone peering point issues.
- Scheduled maintenance for hardware/software upgrades
- Hardware failure of Customer equipment
- DNS issues not within the direct control of Canfone.com
- Network floods, hacks, attacks from outside parties or individuals
- Customer’s acts or omissions, including without limitation, any negligence, willful misconduct.
Canfone.com’s provides 99.917% network availability. An “outage” is defined as an instance in which Customer is unable to transmit and receive IP packets due to a Canfone.com Web Services service failure for more than 15 consecutive minutes, excluding service failures relating to Canfone.com’s scheduled maintenance and upgrades. The Canfone.com Web Services network does not include Customer premises equipment or any Telco access facilities connecting Customer’s premises to such infrastructure. Canfone.com’s goal is to keep Average Round-Trip Latency on the Canfone.com Web Services network to 85 milliseconds or less. Canfone.com Web Services defines “Average Round-Trip Latency”, with respect to a given month,as the average time required for round-trip packet transfers between the Canfone.com Web Services network and major U.S. backbone peering points during such month, as measured by Canfone.com Web Services. Canfone.com’s goal is to keep Average Packet Loss on the Canfone.com Web Services network to 1% or less. Canfone.com Web Services defines “Average Packet Loss”, with respect to a given month, as the average percentage of IP packets transmitted on the Canfone.com Web Services network during such month that are not successfully delivered, as measured by Canfone.com Web Services.
MEASUREMENT: Canfone.com Web Services will periodically monitor Canfone.com Web Services network availability using software and hardware components capable of measuring application traffic and responses. Customer acknowledges that that such measurements may not measure the exact path traversed by Customer’s Internet connection, and that such measurements constitute measurements across the Canfone.com Web Services network but not other networks to which Customer may connect. Canfone.com Web Services reserves the right to periodically change the measurement points and methodologies it uses without notice to Customer.
HARDWARE FAILURE: The customer is responsible for hardware being co-located. However, in the event of a hardware failure we will dispatch a technician to the data center premises and attempt to correct any hardware related issues within 4 hours of problem identification (provided hot-spares of parts are stocked). If server(s) require more extensive hardware repair we will work with server vendor to exercise warranty options.
GENERAL: Canfone.com reserves the right to change or modify this SLA to benefit the Customer, and will notify the Customer of such changes. The Service Agreement signed/agreed by the Customer, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability. The maximum credit a customer can obtain in relation to this SLA is equal to the gross dollar amount of the client’s services with Canfone.com Web Services.
** We reserve the right to edit the terms of service at any time with notice.**