Web Hosting Service Agreement
This Terms of Service Agreement sets forth the Terms and Conditions that apply to use of the service by the Client. By using the service, you agree to comply with all of the Terms and Conditions set out in this document.
Modificationselemental hosting (elemental) reserves the right to make changes to any of the above Terms and Conditions of this Agreement upon thirty (30) days written notice to the Client, advising of the changes and the effective date thereof.
Use of Service
The use of this service herein has a limitation on the amount of data transfer (bandwidth). This service is for the exclusive use of the Client, and does not extend to any other person or entity. elemental expressly prohibits reselling, and will terminate any agreement which does not comply with this provision.
elemental provides space on a web server that is integrated into the Internet. The use of any data or material, which the Client receives from the service provided by elemental, is at the Clients sole and absolute risk. elemental will utilize its best efforts to maintain acceptable performance of the contracted services, but makes absolutely no warranties, express or implied. Nor can elemental guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet.
The Client agrees that it shall defend, indemnify, save and hold harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys fees against elemental, its agents, customers, servants, officers and employees that may arise or result from any services provided, performed, agreed to be performed or any product sold by the Client.
elemental will acquire, at the request of the Client, a Domain Name on behalf of the Client. In such instances the Client hereby waives any and all claims which it may have against elemental for any loss, damage, claim or expense arising out of, or in relation to, registration of such a Domain Name.
Invoicing and Service Fees
The Client shall be invoiced as requested in the sign up form. Payment for the set up fee and the first years service is due upon inception (sign-up date). In the event the Client fails to pay for the services provided herein or any delinquency exists in the Client's account elemental reserves the right to terminate this agreement and discontinue service to the Client without liability. The invoice will include, and you will be responsible for, any applicable provincial and/or federal taxes, as well as interest charges on overdue invoices.
elemental may suspend the service at any time for any duration of time, without penalty or liability to ourselves, where necessary. You agree that it may be necessary for us to temporarily suspend our service for technical reasons or to maintain our network, equipment or facilities. We shall not bear any liability whatsoever for:
- any such suspensions of service;
- the termination of service pursuant to these Terms and Conditions;
- suspension or termination of service due to your non-payment of amounts or deposits due;
- suspension or termination of service due to your unlawful or improper use of facilities or service by you;
- your inability to access any services; or suspension or termination of the service for any other reason at our sole discretion.
Neither elemental or the Client shall be liable for any delay, interruption or failure in the performance of our obligations if caused by acts of God, declared or undeclared war, fire, flood, storm, slide, earthquake, power failure, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, or other similar events beyond the control of the party affected that may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving the particulars of the event. The party so affected shall use reasonable efforts to eliminate or remedy the event.
The Client may only use elementals' services for lawful purposes. In the event that at any given time, elemental believes the service is being used by the Client in contravention with any of the terms and provisions contained in this Agreement, elemental has the right to immediately discontinue such service to the Client without liability or compensation.
The following are Restrictive and Prohibited uses, and shall be cause for the immediate termination of web services to the Client without prior notification:
- Unauthorized distribution or copying of copyrighted software (including audio MP3s, films and movies, DSS software, codes, loaders and unloopers) and violation of any Canadian or US export restrictions or laws.
- Trafficking in illegal adult pornographic, fetish, obscene or deviant sexual material, drug dealing and other illegal, criminal or prohibited activities.
- Unsolicited advertising email, using a non-existing email address on a commercial solicitation, spamming, trolling, mailbombing, subscribing someone else to a mailing list without that person¹s permission or crossposting articles to an excessive number of newsgroups.
- Tortuous conduct such as posting of defamatory, libelous, scandalous or private information about a person without their consent, intentionally inflicting emotional distress, harassment, slander, violation of trademarks, copyrights or other intellectual property rights and fraud.
- Any other misuses of the system resources, such as employing posts or programs which consume excessive CPU time or storage space, permitting use of mail services, mail forwarding capabilities, POP accounts, or auto-responders other than for the Client's accounts, or resale of access to scripting materials installed on our servers.
elemental reserves the right to report such illegal activities to any and all regulatory, administrative and/or governmental authorities for appropriate prosecution.
Entire Agreement and Severability:
This instrument constitutes the entire agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter contained in this agreement. This instrument supersedes any other agreement or understanding between the parties, whether written or oral. In the event that any term or provision of this instrument is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this instrument shall remain in full force and effect.
Terms of Termination:
If you are dissatisfied with our service, or with any of our terms, conditions, rules, policies, guidelines, or practices in operating the service, your sole and exclusive remedy is to terminate your service agreement with us in accordance with our cancellation policy and discontinue using the service. You must provide us with not less than thirty (30) days' written notice prior to the next billing date to advise us of your decision to terminate this service agreement.
No refunds will be given for partial terms or for any initial registration fee.
We reserve the right to terminate any service to you immediately and without notice for cause in the event that you breach this Agreement. elemental may, at our sole discretion, suspend your service in lieu of terminating this Agreement while we investigate the alleged breach of this Agreement.
The rights and obligations of the parties pursuant to these Terms and Conditions is governed by, and shall be construed in accordance with, the laws of the Province in which your designated billing address is situated, and the Federal laws of Canada applicable in said Province.
You may be subject to other local, provincial and national laws. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of Ontario for any dispute arising under or relating to this Agreement and waive your right to institute legal proceedings in any other jurisdiction. We shall be entitled to institute legal proceedings in connection with any matter arising under this Agreement in any jurisdiction where you reside, do business or have assets.