6. Termination by Columbus International Multimedia Inc. / Acceptable Use
Columbus International Multimedia Inc., in its sole business judgment, may terminate this Agreement immediately and without prior notice or immediately suspend Customer's access to the Service upon any breach of either this Agreement or Columbus International Multimedia Inc.'s Acceptable Use Policy (available on the Columbus International Multimedia Inc. web site) by Customer, including, but not limited to, (a) refusal or failure to pay for Service or (b) by sole judgment of Columbus International Multimedia Inc. that Customer may be performing activities harmful to Columbus International Multimedia Inc. or its other Customers, employees, vendors, business relationships or other users of the Internet, including but not limited to, spamming; harassment; falsifying information; defamation; violating a third party's privacy; infringing a third party's intellectual property rights; or hacking or other effort to gain unauthorized access to any server, directory, or account information. Columbus International Multimedia Inc. may also terminate this Agreement without cause at any time upon thirty (30) days prior Notice.
Unauthorized use of the Columbus International Multimedia Inc. Services in connection with the transmission of unsolicited bulk e-mail (. SPAM. ), including the transmission of counterfeit e-mail, may result in civil and criminal penalties against the sender, including those provided by the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.) Columbus International Multimedia Inc.'s response to a first spamming offense is to either terminate the account immediately or advise and educate the Customer through an e-mail warning and/or phone call, in Columbus International Multimedia Inc.'s sole discretion. A minimum $200 (Two Hundred U.S. Dollars) per hour spam handling fee will be charged to Customer's account for all valid complaints, as determined by the Columbus International Multimedia Inc. Abuse Team.
Columbus International Multimedia Inc.'s services may not be used for illegal purposes, or in support of illegal activities. Columbus International Multimedia Inc. reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. Activities which are prohibited as potentially illegal include, but are not limited to:
- Unauthorized copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books, or other copyrighted sources, and copyrighted software.
- Posting or e-mailing of scams such as 'make-money-fast' schemes or 'pyramid/chain' letters.
- Threatening bodily harm or property damage to individuals or groups.
- Making fraudulent offers of products, items, or services originating from your account.
- Attempting to access the accounts of others, or attempting to penetrate beyond security measures of our or other systems (referred to as hacking) whether or not the intrusion results in corruption or loss of data.
- Harassing others by 'mail-bombing'. 'Mail-bombing' constitutes sending more than ten (10) similar mail messages to the same e-mail address.
- Forging any message header,in part or whole, of any electronic transmission, originating or passing through Columbus International Multimedia Inc. services.
- Distributing viruses to or from Columbus International Multimedia Inc. systems.
7. Charges for Space and Server Traffic Above and Beyond that which are Allocated in Client's Hosting Plan
Client agrees that it will be charged and will remit payment for extra server traffic pursuant to the web site hosting package the Client has selected. Said charges will be prorated and will appear on the following invoice. Charges for excess server traffic are posted in the hosting section of http://www.onlyhosting.ca. Client agrees that it will be charged and will remit payment for extra server storage space and extra e-mail accounts pursuant to the web site hosting package that Client has selected. Said charges will be prorated and appear on the following invoice. Charges for extra server storage space and extra e-mail accounts are posted in the hosting section of http://www.onlyhosting.ca.
8. Termination by Customer
Customer may terminate this Agreement if month-to-month, upon thirty (30) days prior notice and full payment of all subscription fees through the end of the notice period. Term accounts may only be canceled by paying a cancellation fee equal to seventy-five percent (75%) of the remaining contract balance and by making payment of any outstanding telecommunications charges related to the establishment, maintenance and cancellation of Service to the Customer. Notwithstanding anything to the contrary in this Agreement, if Columbus International Multimedia Inc. breaches any material term of this Agreement and such breach continues for ten (10) business days after Customer has notified Columbus International Multimedia Inc., you may immediately terminate this Agreement.
Columbus International Multimedia Inc. offers a 30-Day money back guarantee for its services. This guarantee excludes any setup fees, software support subscriptions or installation charges applied to Columbus International Multimedia Inc.'s services.
Columbus International Multimedia Inc. will not issue refunds or credits past the 30-Day money back guarantee.
9. Data
Customer understands and agrees the Internet is a conglomeration of networks and servers operated by distinct entities having no business or legal relationship to Columbus International Multimedia Inc.. Columbus International Multimedia Inc. has no input whatsoever as to the content of Internet data accessed via the Service. Customer is solely responsible for any value or reliance it places on information obtained via the Internet or the Service. INFORMATION DERIVED AS A RESULT OF THIS AGREEMENT IS PROVIDED . AS IS. AND AT customer's OWN RISK.
10. Illegality/Adult Content Policy
Columbus International Multimedia Inc. neither sanctions nor permits hosted site content or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. Columbus International Multimedia Inc. reserves the right to immediately suspend or terminate any site or transmission that violates this policy, without prior notice. In the event of such termination, Customer agrees that the unused portion of any fees Customer may have paid for any Services rendered to Customer by Columbus International Multimedia Inc. are an appropriate recompense to Columbus International Multimedia Inc. for the time required to respond to and address issues created by customer's illegal or obscene site/content, and Customer agrees not to seek recovery of those fees. Further, should Customer violate this policy, Columbus International Multimedia Inc. will actively assist and cooperate with law enforcement agencies and government authorities in collecting and tendering information about Customer, customer's site, the illegal or obscene content, and those persons that may have inappropriately accessed, acquired, or used the illegal or obscene content.
11. Limited Warranty/Security
Columbus International Multimedia Inc. warrants only that it shall, subject to the terms and conditions of this Agreement, provide Customer the Service. CUSTOMER AGREES THAT THE SERVICE IS BEING PROVIDED . AS AVAILABLE. AND . AS IS,. WITH ALL FAULTS ACCEPTED. Columbus International Multimedia Inc. MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATIVE TO THIS AGREEMENT AND THE SERVICES DERIVED THEREUNDER AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. Columbus International Multimedia Inc. FURTHER DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO THE INTERNET AND INFORMATION DERIVED THEREFROM. Columbus International Multimedia Inc. DOES NOT WARRANT THAT THE SERVICE OR THE CONTENT WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL CONTENT AND ACTIVITY. IT IS THE customer's SOLE RESPONSIBILITY TO PERFORM ANTI-VIRUS SCANS, SECURE THE CONTENT OF HOSTED SITES AGAINST HACKERS AND OTHER SECURITY INTRUSIONS (INCLUDING PROTECTION OF CREDIT CARD OR PERSONAL INFORMATION BELONGING TO customer'S CUSTOMERS), AND OTHERWISE MONITOR WHAT MAY BE HARMFUL OR OFFENSIVE CONTENT ON YOUR SITES OR RUNNING THROUGH YOUR CONNECTION TO THE INTERNET. YOU MUST DETERMINE THE SUITABILITY OF THE Columbus International Multimedia Inc. SERVICES FOR THE AFOREMENTIONED TASKS, GIVEN YOUR PARTICULAR USE OF THE INTERNET. IF THE SERVICES, AS PROVISIONED, DO NOT ENABLE YOU TO
FULFILL THESE RESPONSIBILITIES, IT IS YOUR RESPONSIBILITY TO SECURE PRODUCTS OR SERVICES, AT YOUR EXPENSE, THAT PERMIT YOU TO MEET THESE SECURITY OBLIGATIONS.
12. Limitation of Liability
Each party specifically agrees that, in no event, shall either party's liability as a result of this Agreement and the provision of Service hereunder, exceed customer's monthly fee for any single month during which any claim of liability arose or the amount paid for any term Agreement. Neither party shall have liability whatsoever for any indirect, special, incidental, consequential or punitive damages of any kind, including but not limited to, lost revenue and lost profit.
13. Compliance and Indemnification
Client agrees to use the Services in compliance with all applicable laws, and to host files or content, if at all, only with the consent of the copyright, trademark, domain name, or patent owner.
Client agrees that it shall defend, indemnify, save and hold Columbus International Multimedia Inc. harmless from any demands, liabilities, losses, costs and claims, including reasonable attorneys fees, ("Liabilities") asserted against Columbus International Multimedia Inc., its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Columbus International Multimedia Inc. against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with Columbus International Multimedia Inc.'s Server; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold on Columbus International Multimedia Inc. Server.
Customer specifically agrees to defend, indemnify, and hold harmless Columbus International Multimedia Inc., its officers, and employees from any claim, loss, or damage, including costs and reasonable attorney fees, arising out of any act or omission of Customer under this Agreement or its use of the Service. Columbus International Multimedia Inc. specifically agrees to defend, indemnify, and hold harmless Customer, its officers, and employees from any claim, loss, or damage, including costs and reasonable attorney fees, arising out of any act or omission of Columbus International Multimedia Inc. under this Agreement or its use of the Service.
14. Personal Files/E-Mail Inbox
Columbus International Multimedia Inc. is not responsible for back ups of customer' s personal files or other information. Columbus International Multimedia Inc. reserves the right to delete Customer information and files upon termination of the Service. Any IP addresses assigned to Customer are considered loaned by Columbus International Multimedia Inc. and will revert back to Columbus International Multimedia Inc. after cessation of the Service. E-mail inboxes have size limits set by Columbus International Multimedia Inc. Once that size limit is reached or exceeded, Customers will not necessarily receive notification, and no more e-mail will be delivered to that inbox until the size of the inbox is reduced by Customer to below the limit for that account.
15. Privacy
Privacy issues are governed by Columbus International Multimedia Inc.'s Privacy Policy, and that document should be consulted for any questions you may have about how Columbus International Multimedia Inc. uses your Customer information. You are required to develop and post a privacy policy on your web sites to the extent you gather any personal information from your customers or from visitors to your site.
16. Governing Law and Venue
This Agreement shall be construed under the laws of the Province of British Columbia. British Columbia Provincial courts shall have jurisdiction and venue over this Agreement and the parties, and the exclusive venue for all litigation hereunder shall be commenced and maintained in British Columbia.
17. Notice
Notice to Columbus International Multimedia Inc. shall be in writing and delivered by hand, e-mail, facsimile, or, if sent by certified mail, return receipt requested, or a nationally recognized overnight delivery service that keep records of deliveries and attempted deliveries (such as FedEx). It is imperative that Columbus International Multimedia Inc. be able to contact Customer at all times. Customer must promptly advise Columbus International Multimedia Inc. of any changes to his, her or its contact information, including mailing and e-mail addresses and phone number. Failure to do so constitutes grounds for immediate termination; moreover, any notices from Columbus International Multimedia Inc. to Customer sent to customer's last known e-mail address as provided by Customer to Columbus International Multimedia Inc. shall be deemed effective even if Customer has failed to provide updated information to Columbus International Multimedia Inc..
18. Payment/Taxes
Customer shall pay Columbus International Multimedia Inc. for all charges listed on Columbus International Multimedia Inc.'s invoice, including all shipping and handling charges and other charges incidental to the provisioning of the Services. Unless otherwise stated on the face hereof, all payments shall be due upon receipt of invoice or on or before the first day of the billing cycle. On any amounts not paid when due, Subscriber agrees to pay interest at the rate of 2.0% per month (24% per year) or, if such rate is in excess of the rate allowed by law, then Subscriber agrees to pay the highest rate allowed by law. In addition, Subscriber agrees to pay all costs of collection, including costs of litigation and reasonable attorneys fees. Subscriber agrees to execute financing statements and other instruments at Columbus International Multimedia Inc.'s request. A $40.00 (Forty U.S. Dollars) collection fee will be charged for all dishonored checks. Any tax liability arising from customer's use of the Service (other than taxes on Columbus International Multimedia Inc. income) will be customer's responsibility. Customer will pay all sales and use taxes relating to the Service, as well as all duties or levies on Products and Services.
(a) Payment Terms
Unless otherwise subscribed or agreed in writing, payment of the selected Service is due prior to the first day of the month of the start of the billing cycle for the Service to be rendered during the upcoming quarter. Columbus International Multimedia Inc. reserves the right to adjust its fees for Service hereunder at any time in the event Columbus International Multimedia Inc. experiences a rate increase from its telecommunications, data centers or other suppliers. However, if Customer has signed a term agreement, Columbus International Multimedia Inc.'s pricing will remain constant for the agreed-to term. Columbus International Multimedia Inc. will disconnect any customer for non payment, anytime after an invoice has not been paid in full prior to the due date.
Columbus International Multimedia Inc. is not responsible for the pricing of any phone company service fees whether billed directly to Customer by the phone company or through Columbus International Multimedia Inc. on behalf of the phone company. AUTHORIZED CHARGES TO CREDIT CARDS SHALL BE MADE IN ADVANCE, ON OR ABOUT THE ANNIVERSARY DATE OF THE SERVICE FOR THE TERM OF THIS AGREEMENT UNTIL TERMINATED AS PROVIDED HEREIN. A fee of $40 (Forty U.S. Dollars) will be assessed for the following reasons: (1) late payment, (2) payment with insufficient funds, (3) denied or invalid credit card number, or (4) restart of Service terminated for nonpayment. Payment is late after the fifth (15th) day of the second month of the billing quarter. Columbus International Multimedia Inc. may change any fee, rate, or plan upon thirty (30) days. notice. Refunds, if any, from termination or cancellation of term or pre-paid accounts are only available as if the Customer were a month-to-month Customer, and will not be based on the discount the Customer may have received for prepaying the account. Customer must supply 30 days written notice to terminate services or a charge equivalent to one month hosting.
(b) Payment Method
CUSTOMER HEREBY AUTHORIZES CHARGES TO BE MADE IN ADVANCE TO THE IDENTIFIED CREDIT CARD EACH MONTH FOR THE DURATION OF THIS AGREEMENT IN THE AMOUNT OF THE SELECTED SERVICE SET FORTH BELOW OR AS CHANGED BY Columbus International Multimedia Inc. AFTER NOTICE TO CUSTOMER. Payment may be made by check or purchase order only by key accounts and only upon prior authorization by Columbus International Multimedia Inc.. Customer additionally authorizes periodic verification of credit worthiness. Columbus International Multimedia Inc., in its sole discretion and judgment, may discontinue credit at any time without notice.
19. Disputes
The parties shall try to resolve all disputes that might arise out of this agreement in a spirit of cooperation without formal procedures. Any dispute, which cannot be so, resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 10 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in the city of Delta located in the Province of British Columbia, or at a different location if the parties so agree. The arbitration will take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's pay. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators will not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision will be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction.
Should any legal action permissible under this agreement be taken to enforce the conditions and terms of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable legal fees and expenses incurred at the trial and appellate levels.
20. Partial Invalidity
If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Columbus International Multimedia Inc. and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
21. Confidentiality
Customer acknowledges that by reason of their relationship, both customer and Columbus International Multimedia Inc. may have access to certain products, information and materials relating to the other party's business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both Columbus International Multimedia Inc. and customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by either party, as the case may be.
Customer and Columbus International Multimedia Inc. further agree that it will take every appropriate precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the Customer or Columbus International Multimedia Inc..
22. Force Majeure
Columbus International Multimedia Inc. shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, or any third party telecommunications or Internet connectivity providers, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties which are beyond the reasonable control of Columbus International Multimedia Inc..
23. Waiver; Severability
No waiver by either party of any breach by the other party of any provision of this Agreement shall be deemed or construed to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of this Agreement is stricken as unenforceable, the rest of the Agreement shall remain in full force and effect.
24. Successors and Assigns
This Agreement is not assignable or delegable in whole or in part by Customer without the prior express written consent of Columbus International Multimedia Inc.. This Agreement shall be binding upon the heirs and successors of the parties hereto, the assigns of Columbus International Multimedia Inc., and permitted assigns of Customer. This Agreement is assignable by Columbus International Multimedia Inc. provided Columbus International Multimedia Inc. gives Customer written notice of such an assignment and the assigning party(ies) is/are capable of performing all of Columbus International Multimedia Inc.'s obligations hereunder.
25. No Resale
The Service provided hereunder is limited to Customer and may not be resold in any manner whatsoever unless Customer selects a reseller plan and Columbus International Multimedia Inc. provides written acceptance of customer's selection of a reseller plan.
26. Modifications or Amendments to Agreement
This Agreement may be amended or modified from time to time upon Notice to Customer in Columbus International Multimedia Inc.'s sole discretion. This Agreement shall not be supplemented or modified by any course of dealing or other trade usage.
27. Entire Agreement
These terms and conditions constitute the entire Agreement with regard to the subject matter hereof and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to this Agreement. This Agreement may be amended by Columbus International Multimedia Inc. at any time without notice, so please check back frequently to review changes. Any changes or amendments to this Agreement shall be set forth at www.ColumbusInternational.com. This Agreement may not be amended by Customer unless the amendment is approved by both parties in writing. Any questions about this Agreement should be directed to legal@ColumbusInternational.com.
