1. General
1.1 This agreement governs your use of The eXaserve.com Internet information service (the "Service") which is operated by eXaserve communications, ("eXaserve"). Additional terms and conditions of use applicable to specific areas of the Service may also be posted in such areas and, together with this agreement, govern your use of those areas. This agreement, together with any such additional term and conditions, are referred to as this "Agreement."
1.2 eXaserve reserves the right, in its discretion, to change or modify all or any part of this Agreement at any time, effective immediately upon notice published on the Service. Your continued use of the Service constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by eXaserve as permitted above. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you should immediately cease all use of the Service.
2. Use of Content
2.1 You acknowledge that the Service contains information, software, photographs, audio and video clips, graphics, links and other material (collectively, the "Content") that are protected by copyright, trademark or other proprietary rights of eXaserve or third parties. All Content on the Service is copyrighted as a collective work of eXaserve pursuant to applicable copyright law. You agree to comply with any additional copyright notices, information, or restrictions contained in any Content available on or accessed through the Service. Users of the Service may use the Content only for their personal use.
2.2 You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in this Agreement. Content consisting of downloadable software may not be reverse engineered unless specifically authorized by the owner of the software's patent and/or copyright. You may post on the Service any Content owned by you (such as your original statements), Content for which you have received express permission from the owner and Content in the public domain. You assume all risk and responsibility for determining whether any Content is in the public domain. You grant to eXaserve the right to edit, copy, publish, distribute, translate and otherwise use in any medium any Content that you place on the Service without compensation to you. You represent and warrant that you are authorized to grant all rights set forth in the preceding sentence.
2.3 You may download or copy the Content only for your own personal use, provided that you maintain all copyright and other notices contained in such Content. You shall not store electronically any significant portion of any Content. Except as expressly permitted by the copyright laws, no copying, storage, redistribution or publication of any Content is permitted without the express permission of eXaserve or the owners of such Content or their authorized persons, if other than eXaserve. You may download from the Service any Content in the public domain for your own personal use or for non-commercial redistribution.
3. Rules of Conduct$
You shall not post on the Service any Content which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, (b) contains viruses or other contaminating or destructive features, (c) violates the rights of others, such as Content which infringes any copyright, trademark, patent, trade secret or violates any right of privacy or publicity, or (d) otherwise violates any applicable law. You may not post on the Service any links to any external Internet sites that are obscene or pornographic. You shall not use the Service to distribute any advertising or solicitation of funds or goods and services or to solicit users to join competitive online services.
4. Managing Content
eXaserve does not and cannot review the Content posted by users on the Service and is not responsible for such Content. However, eXaserve reserves the right to delete, move or edit any Content (including Content posted in any Interactive Area) that it may determine, in its sole discretion, violates this Agreement or is otherwise unacceptable. You shall remain solely responsible for all Content posted by you. eXaserve shall have the right, but not the obligation, to correct any errors or omissions in any Content, as it may determine in its sole discretion.
5. No Endorsement
5.1 eXaserve does not represent or endorse the accuracy or reliability of any Content posted on any Interactive Area and you acknowledge that any reliance upon such Content shall be at your sole risk. Any Content placed on any Interactive Area by users are the views of the user posting the statement, and do not represent the views of eXaserve.
5.2 The Service may contain links to sites on the Internet which are owned and operated by third parties (the "External Sites"). You acknowledge that eXaserve is not responsible for the availability of, or the content located on or through, any External Site. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or the content located on such External Sites.
6. Indemnity
You agree to indemnify, defend and hold eXaserve and its affiliates, and their respective officers, directors, owners, agents, information providers and licensors (collectively, the "eXaserve Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by any eXaserve Party in connection with any use or alleged use of the Service under your password by any person, whether or not authorized by you. eXaserve reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with GR's defense of such claim.
7. Termination of Service
eXaserve reserves the right, in its sole discretion, to restrict, suspend or terminate your access to all or any part of the Service, including the Interactive Areas, at any time for any reason without prior notice or liability. eXaserve may change, suspend or discontinue all or any aspect of the Service at any time, including the availability of any feature, database, or Content (including the Interactive Areas), without prior notice or liability.
8. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
8.1 NEITHER eXaserve NOR ANY PROVIDER OF THIRD PARTY CONTENT OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES eXaserve, ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE OR THE CONTENT. THE SERVICE AND THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF eXaserve, THIRD PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE, ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE SERVICE. NEITHER eXaserve NOR ANY THIRD PARTY CONTENT PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SERVICE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.
8.2 NEITHER eXaserve, ANY THIRD PARTY CONTENT PROVIDER NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF eXaserve, THIRD PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.4 IF YOU HAVE COMMITTED TO USING THE SERVICE BY PAYING SIX MONTHS OR MORE IN ADVANCE, WHETHER BECAUSE OF eXaserve PRICING POLICY OR BECAUSE OF AN OFFERED DISCOUNT, REFUNDS WILL NOT PROVIDED WITHOUT SUBSTANTIAL PROOF OF EXCESSIVE SYSTEM DOWNTIME, EXESSIVE UNUSABILITY OR EXESSIVE ERROR CONDITIONS. IF A DISPUTE CANNOT BE SETTLED IN ANY WAY OTHER THAN CANCELLATION, AN EARLY TERMINATION FEE OF $60 USD WILL BE DEDUCTED FROM THE REFUND AMOUNT AND THE REMAINDER PAID TO THE YOU WITHIN 60 (SIXTY) DAYS.
8.5 WITH THE EXCEPTION OF DEDICATED SERVER CUSTOMERS, THERE IS NO EARLY TERMINATION FEE FOR MONTH-TO-MONTH CUSTOMERS, SO YOU MAY CANCEL AT ANY TIME. HOWEVER, REFUNDS WILL NOT BE GIVEN UNDER ANY CIRCUMSTANCES. FOR DEDICATED SERVERS, A 30-DAY CANCELLATION NOTICE IS REQUIRED. THE EARLY TERMINATION FEE WILL BE CALCULATED BY SUBTRACTING THE NUMBER OF DAYS LEFT IN THE CURRENT MONTH FROM THE NUMBER 30, THEN MULTIPLYING THE DAILY COST OF YOUR SERVICES (DETERMINED BY DIVIDING THE MONTHLY COST BY 30) BY THE RESULT.
9 Financial Arrangements:
9.1 Client agrees to an automatically-renewing monthly contract beginning upon the receipt of payment by eXaserve.
9.2 The first month hosting payment plus setup charges, if any, shall be due upon receipt of order and before the order is set-up.
9.3 This Agreement will automatically renew for successive month unless canceled per the Termination clause. Renewal prices are subject to change. Renewal of services by Client indicates uncoditional agreement to Agreement revisions and price changes.
9.4 Client is hereby agreeing and requesting to be enrolled in an automated recurring payment system. Any and all additional services and features used and ordered will be billed to the Client's credit card used at sign-up; likewise, any and all renewal invoices will be billed to the same card, unless the client updates the card-on-file accordingly. For clients with month-to-month billing terms, recurring credit card billing is mandatory; month-to-month terms are not available for clients without a credit card for recurring billing on file.
9.5 Furthermore,
(a) Client shall pay all invoices on or by the due date, in full.
(b) Any and all disputes arising out of billing shall be investigated and resolved
only when there is no overdue balance (regardless of any overdue balance being
disputed) owing on the account.
(c) Failure to pay a disputed invoice in full by the due date shall be interpreted
as customer’s acknowledgement and acceptance of charges as correct and
no investigation or modification on the charges in question shall be allowed
after failure to pay, in full, by the due date.
(d) Late payments will incur a (a) $20 or 10% of total amount due fee, whichever
is less, if paid under a week late, (b) $50 or 20% of total amount due fee,
whichever is less, if paid one to two weeks late, or
(c) $200 or 30% of total amount due fee, whichever is less, if paid more than
two weeks late. The percentage penalty shall be calculated based on the total
amount invoiced. The lesser of the set fee or the percentage fee shall be due.
(e) In case of service suspension due to no or incomplete payment, where eXaserve reserves the right to suspend or permanently terminate all of Client's
service(s) on the day following the payment due date upon incomplete or no
receipt of payment, a minimum of $10 reconnect fee per account shall apply
in order to resume service. No reconnect option shall be available if service
has been permanently terminated; full past term charges and charges as per
the Termination clause shall be due.
(f) Payment is deemed as paid on or by the due date if (a) credit card payment
is made and authorized on or by the due date, (b) wire transfer is received
in eXaserve’s bank account on or by the due date, (c) a certified
cheque or money order is received by eXaserve on or by the due date, or
(d) a business or personal check is received by eXaserve 21 days or more
before the due date. All other payments shall be deemed late payments.
(g) eXaserve reserves the right to charge a $25 service fee for all bounced
checks and rejected or declined credit card transactions.
(h) All charges for overages, including bandwidth overages and storage overages,
will be automatically charged to the card-on-record following the last day
of the month in which the overages occured. An invoice marked "Do Not
Pay" will be sent to the registered email address in PDF form, for your
records.
9.6 In the case of a corporate client, the individual under whose name the order is made is personally responsible and liable for all payments due.
10. Miscellaneous
This Agreement shall be construed in accordance with the laws of Canada, and the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Canada. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. If any inconsistency exists between the terms of this agreement and any additional terms and conditions posted on the Service, such terms shall be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions shall control. Sections 2, 6, 8 and 9 shall survive any termination of this Agreement as well as any other provisions which by their terms or sense are intended to survive.
The services hereunder are offered by
eXaserve Enterprises, a canadian company, located
at Exaserve Communication Inc.
60 Coyote Cres Scarborough,
ON M1B6H1
Canada. Upon
ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY
eXaserve ENTERPRISES.
11. Privacy
Uses of collected data: eXaserve does receive certain information about customers who purchase its services through its website to place orders and provide customer support. Upon completion of an order, eXaserve will receive the following information about a customer: Customer Name, Address, Email Address, Phone Number, Credit Card Number. This information is considered confidential, and will not be released, sold or rented to any third party.
If a visitor purchases a product and/or service, they may be contacted occasionally by email with updates and/or other beneficial information specifically related to these products and/or services.