WEB HOSTING USER AGREEMENT
UPDATED JANUARY 7, 2019
This User Agreement (‘Agreement’) is an agreement between Evolving Media & Design Inc. a Federally Incorporated Company in Canada, and the party set forth in the related order form (Customer) attached hereto and hereby incorporated by reference (together with any subsequent order forms submitted by Customer, the ‘Order Form’), and applies to the purchase of all services (collectively, the ‘Services’) ordered by Customer on the Order Form or through any other channels Evolving Media & Design Inc. provides to order and upgrade service. Such party is referred to in this Agreement as ‘Customer’ or ‘you’. Evolving Media & Design Inc. reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Evolving Media & Design Inc.. Activation of the Services shall indicate Evolving Media & Design Inc.’s acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Evolving Media & Design Inc. will provide to Customer the Services selected by Customer set forth on the Order Form. Evolving Media & Design Inc. reserves the right to refuse service to anyone. Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized and in good standing under the laws of the state or Province of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
2. Amendment of Agreement.
Evolving Media & Design Inc. may amend or otherwise modify this Agreement. Customer agrees that Evolving Media & Design Inc.’s posting of any amendments or modifications to this website (http://www.evolvingmedia.com) shall constitute adequate notice to Customer and that Customer shall periodically consult this web page for any changes or amendments to this Agreement. Evolving Media & Design Inc. may, but is under no obligation to, provide additional notice of any amendment, modification or update of this Agreement via e-mail to Customer. If any material modification to this Agreement is unacceptable to Customer it shall be Customer’s responsibility to terminate their subscription as provided in Section 3 of this Agreement. If Customer does not terminate the Agreement within 10 days of the material modification then Customer’s continued use will mean that Customer has accepted the amended or modified Agreement.
3. Duration of Agreement, Continuity, and Cancellation Policy.
- The Initial Term shall begin upon confirmation of Customer’s order or commencement of the Services to Customer and receipt of lawful funds. The term’s length is chosen by customer and shall be indicated in the Order Form. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein. During the Term, and other as specified herein, this agreement cannot be terminated by customer for any reason.
- This agreement may be terminated by either party at the renewal/anniversary date by giving the other party notice at least 15 days prior to the renewal/anniversary date of the Term in order to effectively terminate services as described herein, or by Evolving Media in the event of nonpayment by Customer or by Evolving Media, at any time, without notice, if in Evolving Media’s sole judgment Customer has in any way breached this Agreement (Termination for Cause).
- Evolving Media & Design Inc. may also terminate this agreement in its sole discretion at any time for any or no reason, by giving Customer 72 hours notice to the email address customer keeps on file with Evolving Media & Design Inc.. In the event of Evolving Media & Design Inc. executing such termination prior to the renewal/anniversary date, Evolving Media & Design Inc.’s sole liability shall be to refund Customer’s unused prepaid service fees prorata.
- If Evolving Media & Design Inc. cancels this agreement pursuant to any of the terms outlined in this agreement, with the execption of Termination without Cause pursuant to paragraph 3.3, Evolving Media & Design Inc. shall not refund to Customer any fees paid or prepaid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Evolving Media & Design Inc. terminates the agreement for cause all prepaid hosting fees will be forfeitted and are not refundable. Furthermore, due to the fact that damages are difficult to ascertain Customer consents that $150.00 per hosted domain and service package is reasonable.
- If prior to the end of the agreed on Term, Customer cancels the Services for any reason, or Evolving Media & Design Inc. terminates the Agreement due to Customer’s breach of the Evolving Media & Design Inc. User Agreement or Acceptable Usage Policy, Customer will be charged a $150.00 Canadian Breach-Of-Contract fee per domain package and per hosting account as liquidated damages. Client also forfeits any prepaid service fees. At no time shall customer receive a refund of any prepaid service fees.
- Evolving Media & Design Inc. reserves the right to terminate the Services, if Customer’s usage of the Services results in, or is the subject of, legal action or threatened legal action, against Evolving Media & Design Inc. or any of its affiliates, partners, owners, employees or agents, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
- All sales are final.
4. Billing, Payment, and Additional Services.
- All fees for web hosting or other Services are due in advance and shall be in accordance with Evolving Media & Design Inc.’s fee schedule, which is incorporated herein by reference and may be amended from time to time. In the event that customer elects to pay with a credit card Customer authorizes Evolving Media & Design Inc. to charge all fees owed to such credit card at the time or up to 30 days before they become due. Customer agrees to pay a $40.00 (forty dollars) late fee if customer’s account or accounts become more than ten (10) calendar days overdue or if Customer’s credit card is not accepted when a charge is processed. Fees for renewal periods after the Initial term shall become due 30 days before the first day of such renewal period. Evolving Media & Design Inc. may impose a debt service charge equal to two percent (2%) of the overdue balance or a lesser amount where required by law for each month or portion thereof the overdue amount remains unpaid. In addition, in the event that any amount due Evolving Media & Design Inc. remains unpaid five (5) calendar days after such payment is due, Evolving Media & Design Inc., in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. Customer agrees that Evolving Media & Design Inc. may charge a $40.00 (fourty dollars) fee to reinstate accounts that have been terminated or suspended. All taxes and fees relating to the Services provided hereunder shall be paid by Customer.
- Customer agrees that Evolving Media & Design Inc. may charge up to 30 days in advance all fees due for the Services provided to Customer under this agreement to the credit card supplied by Customer during registration or at any time thereafter and customer specifically agrees not to charge back any payments Evolving Media & Design Inc. processes through Customer’s credit card, checking account or other form of payment on file with Evolving Media & Design Inc..
- Customer acknowledges and specifically agrees that chargeback’s – which occur if Customer disputes Evolving Media & Design Inc. charges directly with Customer’s credit card bank – are unlawful if Evolving Media & Design Inc.’s service has been rendered. If customer has a fee dispute with Evolving Media & Design Inc., the client has to settle such dispute with Evolving Media & Design Inc. directly without initiating any chargeback procedures.
- Customer acknowledges that from time to time, but not more than once per calendar quarter Evolving Media & Design Inc. may automatically provide Customer with upgrades, new products, and new services that Evolving Media & Design Inc. introduces and Customer agrees that Evolving Media & Design Inc. may bill Customer for such products and services on the credit card, checking account or other form of payment Customer has provided and that is on file with Evolving Media & Design Inc. to pay for ongoing services. Customer understands and agrees that there is no purchase obligation and that Customer will have 30 days after receipt of any new products and services to cancel such additional products or services only by opening a Billing Ticket at www.evolvingmedia.com and put ‘Cancel Additional Service’ in the subject field.
- Customer acknowledges and specifically agrees that Evolving Media & Design Inc. may charge customer’s credit card for all charges due, if customer has provided Evolving Media & Design Inc. with proper credit card information and asked to keep the information on file.
- Returned and refused checks will be assessed a $45.00 NSF charge, as per the fee charged by the bank. Incoming wire transfers will incur a $30 charge.
- In the event of a default, Customer agrees to be responsible for all breach-off-contract fees, late fees, collection fees and expenses as well as reasonable attorneys fees and expenses.
5. Special Provisions Applicable to Resellers.
- Evolving Media & Design Inc. from time to time may offer reseller programs which will permit Customers to resell certain of Evolving Media & Design Inc.’s products and services. If Customer chooses to resell Evolving Media & Design Inc. services Customer shall remain a Evolving Media & Design Inc. customer for all purposes under this agreement.
- Customer agrees that if they resell Evolving Media & Design Inc. Services, the purchaser of those resold services will become Customer’s customer (a ‘Reseller Customer’). A Reseller Customer shall not become a Customer of Evolving Media & Design Inc., and Evolving Media & Design Inc. will not be required to provide and technical or other support to any Reseller Customer. Reseller agrees to take all necessary measures to preclude Evolving Media & Design Inc. from being made a party to any agreement with any Reseller Customer. Customer agrees and acknowledges that if they become a Reseller they will be authorized to resell Evolving Media & Design Inc. provided Services on a non-exclusive basis only. Customer’s right to resell Evolving Media & Design Inc. services shall in no way preclude Evolving Media & Design Inc. from marketing and selling Evolving Media & Design Inc.’s own products and services through its own employees, affiliates, other resellers or any other third party. Evolving Media & Design Inc. expressly reserves the right to allow other third parties to resell Evolving Media & Design Inc. services on any terms Evolving Media & Design Inc. may chose including terms which may be more favorable to said third parties then they are to Evolving Media & Design Inc.e Reseller Customers. Reseller acknowledges that the non-payment by any customer of Reseller shall in no way relieve Reseller of any duty in this agreement include the duty to timely pay all fees. Reseller shall be solely responsible for all sales, use, transfer, privilege, excise or other taxes and duties which are levied or imposed on Evolving Media & Design Inc. and Reseller under this Agreement and any and all transactions between Reseller and Reseller Customers. Reseller shall be solely responsible for compliance with any regulations governing the export of the Services (or any portion thereof).
- Reseller shall not resell the Services under Evolving Media & Design Inc.’s brand name accordingly nothing in this Agreement constitutes a license to Reseller to use or resell the Marks (as defined below).
6. Evolving Media & Design Inc. as Reseller or Licensor.
Evolving Media & Design Inc. is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (‘Non-Evolving Media & Design Inc. Product’). Evolving Media & Design Inc. shall not be responsible for any changes in the Services that cause the Non-Evolving Media & Design Inc. Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Evolving Media & Design Inc. Product either sold, licensed or provided by Evolving Media & Design Inc. to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Evolving Media & Design Inc.’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Evolving Media & Design Inc. Product are limited to those rights extended to Customer by the manufacturer of such Non-Evolving Media & Design Inc. Product. Customer is entitled to use any Non-Evolving Media & Design Inc. Product supplied by Evolving Media & Design Inc. only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Evolving Media & Design Inc. to Customer through any Non-Evolving Media & Design Inc. Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Evolving Media & Design Inc. Product, or any technical data derived therefrom, in violation of any applicable Canadian, United States or foreign law.
7. IP Address Ownership.
During the course of providing Services to customer Evolving Media & Design Inc. may assign to Customer an Internet Protocol address. Customer agrees that it has no right to a particular IP address under this agreement and accordingly Evolving Media & Design Inc. shall retain ownership of any IP address or addresses used by Customer under this agreement and that Evolving Media & Design Inc. reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Customer expressly grants to Evolving Media & Design Inc. a license to cache Customer’s Content including content supplied by third parties and hosted by Evolving Media & Design Inc. under this Agreement and Customer agrees to indemnify and hold harmless Evolving Media & Design Inc. for any infringement of any third party’s intellectual property rights thereby affected from said caching.
9. No Unauthorized Scripts or Executables.
Customer agrees not to run any scripts, executables or other programs or processes on Evolving Media & Design Inc.’s servers or other equipment that will in any way adversely affect the performance of said equipment.
10. Bandwidth and Disk Usage.
10.1 – Customer agrees that Evolving Media & Design Inc. will monitor and meter Customer’s daily bandwidth and disk usage and in the event that Customer exceeds the bandwidth or disk usage allocated to each hosting package on any given day Evolving Media & Design Inc. may take corrective action which may, at Evolving Media & Design Inc.’s sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. All bandwidth is measured daily and monthly bandwidth allowances are divided by the calendar days of a given month to determine the daily bandwidth allowance. Customer agrees that in the event of a dispute Evolving Media & Design Inc.’s monitoring reports shall be the final method of determination how much disk space and bandwidth was used and agrees to pay the excess usage charges when due. Customer’s logs files are counted against any disk usage.
11. Intellectual Property Rights.
Customer acknowledges that Evolving Media & Design Inc. owns all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the Services and their provision. Customer further acknowledges and agrees that nothing in this Agreement shall constitute a license to Customer to resell or trade under any of Evolving Media & Design Inc.’s intellectual property.
12. Web Site, E-Commerce and Customer Warranties.
- Customer shall assume sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on Customer Web Site(s), including, without limitation, Customer Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Evolving Media & Design Inc. reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Customer Content on the Web Site, or other content not supplied by Evolving Media & Design Inc. which, in Evolving Media & Design Inc.’s sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Evolving Media & Design Inc. to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Evolving Media & Design Inc. to monitor or exert editorial control over the Web Site. Evolving Media & Design Inc. shall in no way be responsible for Customer’s conduct or actions including but not limited to Customer’s handling of third party information such as credit card numbers and any liabilities incurred by Customer including but not limited to tax liabilities for the conduct of Customer’s on-line business.
- Customer shall be solely responsible for the development, operation, backup, and maintenance of Customer’s web site and any online store and e-commerce activities. Evolving Media & Design Inc. is not required to keep backups of customer sites or data at any time.
13. Disclaimer of Warranty.
Customer agrees that its use of Services and its reliance upon information provided by Evolving Media & Design Inc. are entirely at Customer’s own risk. Customer acknowledges and agrees that Evolving Media & Design Inc. exercises no control over, and accepts no responsibility for, the content of data, scripts, or other information passing through Evolving Media & Design Inc.’s host computers, network hubs and points of presence or the Internet.
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER EVOLVING MEDIA, ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER EVOLVING MEDIA NOR ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. EVOLVING MEDIA IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY EVOLVING MEDIA. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY EVOLVING MEDIA. EMPLOYEE, OWNER, OR AGENT WILL CREATE A WARRANTY; NOR MAY CUSTOMER OR ANY OF CUSTOMER’S OWNERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE.
The terms of this section shall survive any termination of this Agreement.
Customer agrees to indemnify, defend and hold harmless Evolving Media & Design Inc. and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an ‘indemnified party’ and, collectively, ‘indemnified parties’) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, any violation by Customer of this agreement, any breach of any representation, warranty or covenant of Customer contained in this Agreement or any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
15. Limitation of Liability.
- Customer agrees neither Evolving Media & Design Inc. nor any of its employees, owners, or agents shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or otherwise unauthorized means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Evolving Media & Design Inc. at the time) which may exist in the Services or Evolving Media & Design Inc.’s equipment used to provide the Services.
- Under no circumstances, including negligence, shall Evolving Media & Design Inc. or any of its employees, owners, or agents be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Evolving Media & Design Inc. has been advised of the possibility of such damages. No Evolving Media & Design Inc. Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Evolving Media & Design Inc.’s records, programs, equipment or services.
- Notwithstanding anything to the contrary in this Agreement, Evolving Media & Design Inc.’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims regardless of the legal theory or the nature of the cause of action shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the twelve (12) month period prior to the date the cause of action arose or the injury or loss occurred.
- Customer understands, acknowledges and agrees that if Evolving Media & Design Inc. takes any corrective action under this Agreement because of an action of Customer or one its customers that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Evolving Media & Design Inc. shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Evolving Media & Design Inc..
- This limitation of liability reflects an informed and voluntary allocation of risks between the parties and applies to risks both know and unknown that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
16. Prohibited Uses and Activities
Evolving Media & Design Inc. may immediately take corrective action, including removal of all or a portion of the Customer’s content, disconnection or discontinuance of any Services if Customer, or anyone accessing Customer’s account or server space, engages in any of the prohibited Uses or Activities set forth in Section 16 of this agreement. Customer hereby agrees that Evolving Media & Design Inc. shall have no liability to Customer or any of Customer’s customers due to any corrective action that Evolving Media & Design Inc. may take (including, without limitation, disconnection of Services).
- Violations of Intellectual Property Rights – Customer agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity’s intellectual property rights including, rights of privacy and rights of publicity are prohibited. Evolving Media & Design Inc. is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see ‘Copyright Infringement Notice Information’ below).
- Spamming – Customer agrees not to send spam or resell its services to anyone who sends spam. The term ‘spam’ includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of a dispute Evolving Media & Design Inc. reserves the right to determine, in its sole and discretion, whether e-mail recipients were from an opt-in email list.
- Misrepresentation of Transmission Information – Customer agrees not to forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of any message or to resell services to anyone who engages in said conduct.
- Viruses and Other Destructive Activities – Use of the Services for creating or sending malicious, destructive or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this agreement. Customer also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment).
- Malicious or Unauthorized Hacking – Customer agrees not conduct or promote any ‘Hacking’ activity and agrees that ‘Hacking’ as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking or cracking. Any such activity on the part of Customer is a material breach of this Agreement.
- Export Control Violations – The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited.
- Child Pornography – The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Evolving Media & Design Inc. will as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
- Other Illegal Activities – The use of the Services to engage in any activities that are determined by Evolving Media & Design Inc., in its sole and absolute discretion, to be illegal or which in Evolving Media & Design Inc.’s opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, password and cracking information, fraudulently charging credit cards or displaying credit card information or other private information of third parties without their consent, and failure to comply with applicable on-line privacy laws. Evolving Media & Design Inc. will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
- Obscene, Defamatory, Abusive or Threatening Language – Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.
- Other Prohibited Activities – Engaging in any activity that, in Evolving Media & Design Inc.’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Evolving Media & Design Inc.’s business, operations, reputation, goodwill, customers and/or customer relations, or the ability of Evolving Media & Design Inc.’s customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a Customer to cooperate with Evolving Media & Design Inc. in correcting or preventing violations of this Agreement by, or that result from the activity of, a customer of the Subscriber is a violation of this Agreement.
17. Copyright Notice Infringement Information
Pursuant to the Digital Millennium Copyright Act, Evolving Media & Design Inc. has adopted a policy that provides for suspension and possible termination of websites hosted by Evolving Media & Design Inc. that are found to infringe on copyrights of third parties. Customer expressly acknowledges that they are aware of this provision and Customer waives any claims it may have should it be injured or it’s business damaged in any form by the enforcement of this provision. If a copyright holder believes that there has been a violation of their copyright on a website that is hosted by Evolving Media & Design Inc. and the copyright holder demands that Evolving Media & Design Inc. remove the website or disable the material in question, Evolving Media & Design Inc. will remove the website or disable the material if the copyright holder provides Evolving Media & Design Inc. with all of the following information under the Digital Millennium Copyright Act:
- A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
- Identification of the copyrighted work that is claimed to have been or being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
- Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material. Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
- A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
18. Disclosure of Customer Information and Legal Process
Although Evolving Media & Design Inc. will ordinarily maintain strict Customer confidentiality there are certain exceptions where Evolving Media & Design Inc. may disclose any information in its possession, including, without limitation, information about Subscribers, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or official governmental request, to protect Evolving Media & Design Inc. or others from harm, and/or to ensure the proper operation of the Services. Evolving Media & Design Inc. has no obligation to notify any person, including the Subscriber about whom information is sought, that Evolving Media & Design Inc. has provided the information. Customer acknowledges the above exceptions and agrees to them without reservation.
19. Force Majeure.
Evolving Media & Design Inc. shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
20. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects by Canadian law, in the Province of Ontario, without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in Ontario. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the Arbitration and Mediation Institute of Canada Inc. in accordance with its then existing Commercial Arbitration Rules and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Ottawa, Canada, or any other place selected by mutual agreement of the parties. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personam jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees. The terms of this section shall survive any termination of this Agreement.
Evolving Media & Design Inc. may assign this agreement at any time and without notice to Customer. Customer shall not have the right to assign this Agreement without the prior written consent of Evolving Media & Design Inc.. This Agreement shall be binding upon and inure to the benefit of Customer and Evolving Media & Design Inc. and their successors and permitted assigns.
22. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents or agreements identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the parties agree that the remainder of this Agreement shall remain in full force and effect.
Last updated: 2019-01-07
23. Acceptable Use Policy
Evolving Media & Design Inc. appreciates doing business with you or your Company. As a provider of web hosting services, domains and other services and products Evolving Media & Design Inc. must comply with certain laws and regulations. Evolving Media & Design Inc. espouses ethical business practices and expects users, customers, affiliates and others to adhere to such standards. While Evolving Media & Design Inc. strives to provide users with the unfettered discretion to post on their website any content you desire, Evolving Media & Design Inc. must balance said desire with the community they serve, the public, the laws where Evolving Media & Design Inc. does business and the regulations therein. Evolving Media & Design Inc. reserves the right in its sole discretion to suspend or terminate any site hosted for any reason, including but not limited to, your violation of any laws, the terms and conditions of this Acceptable Use Policy or the terms and conditioned contained in your web hosting agreement with Evolving Media & Design Inc., which is hereby incorporated by reference. The Acceptable Use Policy below describes certain actions relating to the content and operation of your Website which Evolving Media & Design Inc. considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact Evolving Media & Design Inc.. Evolving Media & Design Inc.’s right to remove suspend or terminate any site hosted by Evolving Media & Design Inc. for inappropriate content under this Policy shall not place an obligation on Evolving Media & Design Inc. to monitor or exert editorial control over any Website.
24. Prohibited Activities
Actions which Evolving Media & Design Inc. considers inappropriate and grounds for suspension or termination of your account include, but are not limited to, the following:
- Using your Website to sell any goods or services that are unlawful in the location at which the content is posted or received or the goods or services delivered;
- Using your Website to post any content that is obscene, lewd, lascivious, pornographic, contains nudity or sexual acts, excessively violent, harassing, or otherwise objectionable;
- Using your Website to post any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information, or assistance in causing or carrying out such violence;
- Using your Website to post any content that holds Evolving Media & Design Inc. (including its affiliates), employees or shareholders up to public scorn or ridicule or would in anyway damage or impair Evolving Media & Design Inc.’s reputation or goodwill;
- Using your Website to post any content that violates any copyrights, patents, trademarks, trade secrets, or other intellectual property rights of others;
- Failing to obtain all required permissions when using your Website to receive, upload, download, display, distribute, or execute programs or perform other works protected by intellectual property laws including copyright and patent laws;
- Deleting or altering author attributes, copyright notices, or other copyright management information, unless expressly permitted in writing by the author or owner;
- Using your Website in a tortuous manner, including the posting of libelous, defamatory, scandalous, threatening, harassing or private information without the permission of the person(s) involved, or posting content that is likely to cause emotional distress;
- Introducing viruses, worms, Trojan horses, or other harmful code on the Internet; or
- Any other act or omission that Evolving Media & Design Inc. in their sole discretion determines to be unacceptable, irrespective of whether such act is reasonable.
25. Technical Prohibitions
- Use our services, your own or others to cause denial of service attacks against Evolving Media & Design Inc. or other network hosts or Internet users or to otherwise degrade or impair the operation of Evolving Media & Design Inc.’s servers and facilities or the servers and facilities of other network hosts or Internet Users;
- Post messages, images, or any other item that consumes excessive CPU time or storage space;
- Utilize Evolving Media & Design Inc.’s services to offer mail services, mail forwarding capabilities, POP accounts, auto responders or similar goods or services other than for Your own Evolving Media & Design Inc. account;
- Utilize the Services to resell access to CGI scripts installed on Evolving Media & Design Inc.’s servers;
- Utilize the services to subvert, or assist others in subverting , the security or integrity of any Evolving Media & Design Inc. systems, facilities or equipment;
- Utilize services to gain unauthorized access to the computer networks of Evolving Media & Design Inc. or any other entity or person;
- Utilize the services to provide passwords or access codes to persons not authorized to receive such materials by the operator of the system requiring the password or access code;
- Utilize the services to i) forge the signature or other identifying mark or code of any other person, ii) impersonate or assume the identity of any other person, or iii) engage in any other activity, including but not limited to, spoofing, to attempt to deceive or mislead other persons regarding the true identity of the User;
- Utilize the services to conduct port scans or other invasive procedures against any server (except any server for which User is an authorized system administrator;
- Utilize the Services in any other manner to interrupt or interfere with the Internet usage of other persons.
26. REVISIONS TO ACCEPTABLE USAGE POLICY
Evolving Media & Design Inc. may revise in its sole discretion this Acceptable Use Policy, without prior notice. Any such changes shall be posted by Evolving Media & Design Inc. on its Website www.evolvingmedia.com/service. You shall be responsible for periodically reviewing the online Acceptable Use Policy to apprise yourself of any changes thereto. You agree to be bound by all such changes.
27. Alleged Copyright Infringement
PLEASE BE ADVISED THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES AND CRIMINAL PENALTIES. ANY INQUIRIES OTHER THAN THESE RELATED TO THE DMCA WILL BE DELETED.
As required by the Digital Millennium Copyright Act of 1998 (17 U.S.C. 512 (c), all notifications of claimed copyright infringement regarding Websites hosted by Evolving Media & Design Inc. should be sent ONLY to our designated agent.
Evolving Media & Design Inc.
57 Gauthier Street
Alexandria, ON, K0C 1A0, Canada
If you believe a Website hosted by Evolving Media & Design Inc. infringes a copyright, you must provide the following information to the person identified above (17 USCA 512 et al as amended):
- 1. A physical or electronic signature of the copyright owner or authorized agent;
- 2. Identification of the copyrighted work(s) claimed to have been infringed;
- 3. Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- 4. Information regarding how we may contact you (for example, mailing address, telephone number, E-mail address);
- 5. A statement that the copyright owner or its authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- 6. A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
28. Spamming Policy
Evolving Media & Design Inc. has zero tolerance for UBE/UCE (unsolicited bulk email/unsolicited commercial email). This policy protects our customers as well as the internet community from the negative effects of ‘spam’ related activity. Evolving Media & Design Inc. defines UBE/UCE as unsolicited broadcast or commercial email that is sent to addresses that do not affirmatively and verifiably request such material from that specific sender.
29. Our Policies:
- Evolving Media & Design Inc. customers, and customers of Evolving Media & Design Inc. customers or any user of bandwidth and/or services on our network (herein described as ‘users’) are prohibited from sending UBE/UCE. Users may be asked to produce records that verify that explicit affirmative permission was obtained from a recipient before a mailing was sent. Evolving Media & Design Inc. may consider the lack of such proof of explicit affirmative permission of a questionable mailing UBE/UCE at its sole discretion.
- Evolving Media & Design Inc. customers are prohibited from maintaining open mail relays on their servers. Ignorance of the presence or operation of an open mail relay is not and will not be considered an acceptable excuse for its (the open mail relay) operation. Multiple infractions of this policy will result in a discontinuation of service.
- Evolving Media & Design Inc. customers will be notified in the event that they may be hosting sites listed as violators of the above policy. Again, failure to rectify such situations may be cause for termination.
- Evolving Media & Design Inc. customers are prohibited from providing hosting services for websites that have been included in UBE/UCE. Hosting includes, but is not limited to, hosting website(s), providing DNS services as well as website redirect services.
- Valid complaints received by Evolving Media & Design Inc. will be forwarded to customer for a response and resolution. If within twenty-four (24) hours there is no response, Evolving Media & Design Inc. may block traffic to and from the IP address involved in the UBE/UCE complaint until the problem is resolved and preventative measures have been implemented to prevent the violation from recurring. All users are responsible for maintaining a working email contact and updating that information with Evolving Media & Design Inc. when it changes.
- If Evolving Media & Design Inc. receives repeat complaints indicating that a problem has not been resolved, Evolving Media & Design Inc. reserves the right to suspend and/or cancel any and all services provided to the user after a notification of no less than two (2) hours.
To report an incidence of abuse, please report it to Support