NETELLIGENT TERMS OF SERVICE (TOS)
Netelligent Hosting Services Inc. ("NHS", "The Company") agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).
Use of NHS Services constitutes acceptance and agreement to NHS's AUP (Acceptable Usage Policy) as well as NHS's TOS (Terms of Service).
All provisions of this contract are subject to the TOS and AUP of NHS. The AUP may be changed from time to time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.
This Agreement shall be construed in all respects in accordance with the laws of the province of Quebec and Canada.
Disclosure to Law Enforcement: The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition, NHS shall have the right to terminate all service set forth in this Agreement.
- 1. Service Rates: Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time to time. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.
- 2. Payment: Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month's service. All accounts and services provided by NHS are subject to the current tax rate as imposed by the province of Quebec and Canada.
- 3. Payments and Fees: Netelligent invoices are created on the first day of each month and are due within 30 days of that date. If the payment is not received within 30 days your account will be charged a late fee equivalent to 2% of total balance owing on the account. Accounts that are 45 days past due will be suspended, and can only be re-activated upon full payment of the account balance. Suspended accounts are subject to a $50.00 reconnect charge. Accounts that are 60 days past due may be turned over to a third-party collection agency. If you desire to cancel your account, please follow the proper procedure to do so, as outlined in this TOS.
- 4. Refund and Disputes: All payments to NHS are non-refundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in The Company's sole discretion is a valid charge under the provisions of the TOS and/or AUP, you agree to pay NHS an "Administrative Fee" of no less than $50.00 and not more than $150.
- 5. Failure to Pay: The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
With any account deemed past due, the Company shall send a fourty-eight (48) hour prior written notice of default to the Subscriber for demand for payment on all past due invoices. Following the expiration of the fourty-eight (48) hour notice period, the Company may suspend the any or all of the Services, without further notice or delay, the whole without prejudice to any of the Company's other rights. Despite any provision to the contrary, the Company is not responsible for any damages, including, but not limited to, direct or indirect financial or business loss, resulting from the suspension of the performance of the any of the Subscriber's services.
- 6. Account Cancellation: All requests for canceling accounts must be made in writing with at least 30 days notice but not more than 60 days prior written notice and sent to Netelligent Hosting Services Inc.
- 7. Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of The Company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that The Company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of The Company. Subscriber further acknowledges that the company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the company be liable for any special or consequential damages, loss or injury.
- 8.Support Boundaries: Netelligent Hosting Services Inc. provides 24x7 technical support to our Subscribers. We limit our technical support to our area of expertise. The following is our guidelines when providing support: NHS provides support related to your dedicated server's physical functioning. NHS does not offer technical support for application specific issues such as cgi programming, html or any other such issue. NHS does not provide technical support for YOUR customers. If you can email, we encourage you to email support (at) netelligent (dot) ca for assistance. Lastly, the Help files in the program you are using may have the answer to your question so please do investigate these resources before calling tech support.
- 9. SPAM and Unsolicited Commercial Email (UCE): Netelligent Hosting Services Inc. takes a zero-tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that customers of The Company may not use or permit others to use our network to transact in UCE. Customers of NHS may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.
- a. Violation of Netelligent Hosting Services Inc.'s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Netelligent will initiate an immediate investigation (within 48 hours of notification). During the investigation, NHS may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Netelligent may, at its sole discretion, restrict, suspend or terminate customer's account. Further, Netelligent reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. NHS will notify law enforcement officials if the violation is believed to be a criminal offense.
- b. First violations of this policy will result in an "Administrative Fee" of $250.00 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $500.00 and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $175.00 per hour that NHS personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your servers..
- c. As our Customers are ultimately responsible for the actions of their clients over the NHS network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
- IMPORTANT NOTICE: EFFECTIVE IMMEDIATELY, anyone hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice.
- 10. Network Issues
- a. IP Address Ownership: If NHS assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to NHS, and Customer shall have no right to use that Internet Protocol address except as permitted by Netelligent in its sole discretion in connection with the Services, during the term of this Agreement. Netelligent shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Netelligent, and Netelligent reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by ARIN's new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible. We will periodically review IP addres! s usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
- b. System and Network Security: Users are prohibited from violating or attempting to violate the security of the Netelligent Network. Violations of system or network security may result in civil or criminal liability. Netelligent will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:
- i. Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access.
- ii. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
- iii. Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing".
- iv. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
- v. Taking any action in order to obtain services to which such User is not entitled.
- 11. Notification of Violation:
- a. Netelligent is under no duty to look at each customer's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
- b. First violation: Any User, which Netelligent determines to have violated any element of this AUP, shall receive an email, warning them of the violation. The service may be subject at Netelligent's discretion to a temporary suspension pending a User's agreement in writing, to refrain from any further violations.
- c. Second Violation: Users that Netelligent determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
- d. We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer's network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.
- 12. Suspension of Service or Cancellation: Netelligent reserves the right to suspend network access to any customer if in the judgment of the Netelligent network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which Netelligent chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's machines were suspended.
- 14. Indemnification: Netelligent wishes to emphasize that in agreeing to the Netelligent AUP and Terms of Service (ToS), customer indemnifies Netelligent for any violation of the AUP and Terms of Service (ToS) that results in loss to Netelligent or the bringing of any claim against Netelligent by any third-party. This means that if Netelligent is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against Netelligent, plus all costs and attorney's fees.
- 15. Miscellaneous Provisions: You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference.
- a. A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
- b. Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation.
- c. Netelligent takes no responsibility for any material input by others and not posted to the Netelligent Network by Netelligent. Netelligent is not responsible for the content of any other websites linked to the Netelligent Network; links are provided as Internet navigation tools only. Netelligent disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy.
- d. Netelligent is not responsible for any damages your business may suffer. Netelligent does not make implied or written warranties for any of our services. Netelligent denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Netelligent.
- 18. Responsability for Content: You, as Netelligent's customer, are solely responsible for the content stored on Netelligent Hosting Services.
- 19. All visitors, customers, contractors must abide by the rules of the data center and follow instructions given by Netelligent staff.