This is an agreement between you and DYNASERVE TECHNOLOGIES Ltd. (DYNASERVE) regarding your use of DYNASERVE's computer, interactive information, communication and server management service. This Agreement governs the terms and conditions under which DYNASERVE makes the services offered by DYNASERVE available to individual consumers through a personal computer or similar access, or to individual consumers or small businesses in connection with the " DYNASERVE " webhosting or similar services. Under this Agreement, you must comply with DYNASERVE’s "Acceptable Use Policy," as updated from time to time by DYNASERVE. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY PROVIDING YOUR BILLING INFORMATION AND CREDIT CARD AUTHORIZATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND DYNASERVE'S ACCEPTABLE USE POLICY.
1. DYNASERVE will host an account for you, the purchaser (hereafter referred to as the Account Holder), for the Account Holder's chosen domain name, for the period of time (the Term) corresponding with the payment plan chosen by the Account Holder. This contract will be automatically renewed at the end of the Term and each successive renewal term, unless terminated prior. Termination of services by the Account Holder must be given by filling out the cancellation form on our website, at least 30 days prior to the termination date. Phone, fax and email notification is not acceptable. For any one of the virtual hosting plans, the full amount paid less any set up fees and overages will be refunded if DYNASERVE is notified of your intent to terminate within the first 30 days following activation. No refund is available after the 30th day.
2. DYNASERVE's services are provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. DYNASERVE expressly disclaims any representation or warranty that the DYNASERVE services will be error-free, secure or uninterrupted. No oral advice or written information given by DYNASERVE, its employees, licensors of the like, will create a warranty; nor may you rely on any such information or advice. The terms of this Section will survive any termination of this Agreement.
3. The Virtual Web Server Internet account and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. Further, the Account Holder agrees not to store, transmit, link to, advertise or make available any images containing pornography. Violations of these or any other provisions of this Agreement may result in termination of the services provided by DYNASERVE, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of DYNASERVE based upon the severity of the violation. DYNASERVE reserves the right to refuse service if any of the content within, or any links from, the Account Holder's website is deemed illegal, misleading, or obscene, or is otherwise in breach of DYNASERVE's then current Acceptable Use Policy, in the sole and absolute opinion of DYNASERVE. Notwithstanding anything in this Agreement, the content of the Account Holder's website is the sole responsibility of the Account Holder. The Account Holder agrees to indemnify and hold harmless DYNASERVE from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney's fees, costs, and other expenses incurred by DYNASERVE, (collectively, Claims) related to or in connection with the content of the Account Holder's website. The terms of this Section will survive any termination of this Agreement.
4. DYNASERVE reserves the right to change, at any time, the prices charged to the Account Holder for the services provided by DYNASERVE
5. The Account Holder agrees to follow generally accepted rules of "Netiquette" when sending e-mail messages or posting to newsgroups. Account Holder is responsible for security of its password. DYNASERVE will not change passwords to any account without proof of identification, which is satisfactory to DYNASERVE, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes Account Holder, Account Holder understands that DYNASERVE will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will DYNASERVE be liable for any losses incurred by Account Holder during this time of determination of ownership, or otherwise. The Account Holder agrees to indemnify and hold harmless DYNASERVE from any and all Claims arising from such ownership disputes. The terms of this Section will survive any termination of this Agreement.
6. The Account Holder agrees not to harm DYNASERVE, its reputation, computer systems, programming and/or other persons using DYNASERVE's services. DYNASERVE reserves the right to select the server for Account Holder's website for best performance. The Account Holder understands that the services provided by DYNASERVE are provided on a shared server. This means that one website cannot be permitted to overwhelm the server with heavy CPU usage, for example from the use of highly active CGI scripts or chat scripts. If the Account Holder's website overwhelms the server and causes complaints from other users, the Account Holder has outgrown the realm of shared servers, and will need to relocate it's website. DYNASERVE will refund any unused portion of prepaid services. If the Account Holder refuses to comply with this Section, then DYNASERVE has the right to terminate the services provided to the Account Holder without any refunds of the unused portion prepaid by the Account Holder. The Account Holder agrees to indemnify and hold harmless DYNASERVE and any other Account Holder from any and all Claims resulting from the Account Holder's use of the services provided by DYNASERVE The terms of this Section will survive any termination of this Agreement.
7. The Account Holder's rights and privileges under this Agreement cannot be sold or transferred without the prior written consent of DYNASERVE.
8. If the Account Holder sells or resells advertising or webspace to a third party then the Account Holder will be responsible for the contents of that advertising and the actions of that third party. DYNASERVE has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current DYNASERVE Acceptable Use Policy. The e-mail distribution by the Account Holder of "SPAM", "JUNK MAIL", or "UNSOLICITED COMMERCIAL E-MAIL", is expressly prohibited. If the Account Holder refuses to remove any advertising or other third party content deemed objectionable by DYNASERVE, DYNASERVE may terminate the services being provided to the Account Holder.
9. DYNASERVE will use its best efforts to maintain a full time Internet presence for the Account Holder. The Account Holder hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall DYNASERVE be liable to the Account Holder for any damages resulting from or related to any failure or delay of DYNASERVE in providing access to the Internet under this Agreement. In no event shall DYNASERVE be liable to the Account Holder for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of DYNASERVE under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the Account Holder hereunder. The terms of this Section will survive any termination of this Agreement.
10. This Agreement applies to all accounts, sub-accounts, and alternative account names associated with your principal account. The Account Holder is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A DYNASERVE account may not be transferred without prior written approval from DYNASERVE. The Account Holder is responsible for maintaining the confidentiality of his/her password. In the event of a breach of security through the Account Holder's account, the Account Holder will be liable for any unauthorized use of the DYNASERVE services, including any damages resulting therefrom, until the Account Holder notifies DYNASERVE 's customer service.
11. If DYNASERVE assigns the Account Holder an Internet Protocol address in connection with the Account Holder's use of the DYNASERVE services, the right to use that Internet Protocol address will remain with and belong only to DYNASERVE, and the Account Holder will have no right to use that Internet Protocol address except as allowed by DYNASERVE in its sole and absolute discretion.
12. This Agreement constitutes the entire agreement between the Account Holder and DYNASERVE with respect to the DYNASERVE services and supersedes all prior agreements between the Account Holder and DYNASERVE. DYNASERVE's failure to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. The terms of this Section will survive any termination of this Agreement.
13. The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation and with a problem-solving mindset, without formal proceedings. Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in Toronto, ON. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels. The terms of this Section will survive any termination of this Agreement.
14. The Account Holder agrees to indemnify and hold DYNASERVE harmless from any and all Claims resulting from or connected with any activities conducted by the Account Holder. The Account Holder and DYNASERVE will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph will survive any termination of this Agreement.
15. DYNASERVE may include the Account Holder's name and contact information in directories of DYNASERVE service subscribers for the purpose promoting the use of the services by additional potential clients. However, DYNASERVE is not authorized to print the Account Holder's name, trademarks or other identifying information in any other advertising or promotional materials without the prior written consent of the Account Holder.
16. The interpretation and enforcement of this Agreement shall be governed according the laws of the province of British Columbia (excluding its choice of law rules) and the federal laws of Canada applicable therein. The Account Holder hereby consents to personal jurisdiction in the federal and provincial courts of British Columbia, Canada for any action arising out of or relating to the Account Holder's use of the DYNASERVE services. The federal and provincial courts of British Columbia, Canada will have exclusive jurisdiction over all such actions. In any such 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 will survive any termination of this Agreement.
17. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the individuals in the capacities indicated below, or as specified by subsequent written notice delivered by the party whose address has changed.