ACD Hosting and Design Master Service Agreement
This agreement ("Agreement") is between wholesale
hosting service provider ACD Hosting and Design and the Customer or Hosting/Internet
Service Reseller ("Customer") specified in the electronic order
form annexed herein by reference ("Order"). The agreement is
made effective as of the date of the order.
The parties agree as follows:
Overview
This agreement in conjunction with the ACD Hosting and
Design Acceptable Use Policy annexed herein by reference (AUP) are intended
to cover any and all services provided by ACD Hosting and Design and received
by the Customer. This service agreement and annexed AUP together, contain
the entire understanding between ACD Hosting and Design and Customer with
respect to the services ("Services") described in the Order
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, between ACD Hosting and Design and
Customer. Customer acknowledges and agrees that its entire right relating
to ACD Hosting and Design Services are as set forth in this agreement
and hereby waives all other rights that it may have by implication of
law or otherwise.
1. Services
Subject to the terms and conditions of this agreement,
ACD Hosting and Design agrees to provide the wholesale hosting services
specified in the Order. Subject to Customer's right to terminate this
agreement in accordance to Section 4.3 of this agreement, ACD Hosting
and Design may expand or contract the scope of the ACD Hosting and Design's
services by issuing an amended order form to the Customer in advance of
such change.
2. Initial Term
The initial term of this Agreement is stated in the Order
("Initial Term"). The Initial Term shall not commence until
ACD Hosting and Design accepts and confirms the completed order form from
the Customer and until first payment as set out in the Order is made in
full by the Customer for Services to be provided during the Initial Term.
ACD Hosting and Design reserves the right to reject any order in which
case moneys collected will be refunded/reversed.
3. Renewal Term
Unless terminated by ACD Hosting and Design or in accordance
with Section 4.3 of this Agreement, this Agreement will automatically
renew for successive terms of equal length to the Initial Term at the
applicable rate and discounts.
4. Fees and Payment
The Customer agrees to pay ACD Hosting and Design, without
limitation, for services provided. Customer is fully responsible to ensure
payment of any and all amounts due, are paid on time independently of
receiving any invoices or billing notifications from ACD Hosting and Design.
Customer accounts may be cancelled with or without warning if any and
all customer accounts are not paid up-to-date.
Customer is responsible for keeping their contact and
billing information up-to-date and accurate, including but not limited
to a properly functioning and reachable email address and telephone number.
Invoices may be provided as a courtesy to Customer by
any or none of the following: email, ACD Hosting and Design Customer Service
Center or upon request fax or mail. ACD Hosting and Design assumes no
responsibility for invoices lost or not received. Dollar amounts and costs
indicated for all ACD Hosting and Design services are in US currency,
unless otherwise stated. Payment for all ACD Hosting and Design services
is billed and due a minimum of thirty (30) days in advance. ACD Hosting
and Design reserves the right to refuse acceptance of any form of payment
or terms. Service and/or handling fees above and beyond those listed may
apply at the discretion of ACD Hosting and Design.
4.1 Overdue Accounts - Overdue accounts
may, at the discretion of ACD Hosting and Design, be issued a late payment
reminder and/or 72 hour disconnection warning notice. Regardless of receiving
a late payment reminder or disconnection notice all overdue accounts will
be suspended/disconnected from the Internet for a period of 72 hours.
Disconnected accounts are cancelled automatically after 72 hours unless:
payment is received in full or alternative, suitable arrangements are
made with ACD Hosting and Design. A minimum $25 reconnection fee will
be charged on all accounts reconnected after being suspended/disconnected.
NOTE: If an account is cancelled, there is NO possibility that it can
be restored and/or its data recovered.
4.2 Other Charges - Customers will
pay all sales and value-added taxes, duties or levies imposed by any authority,
government, government agency or commission or crown corporation in connection
with the ACD Hosting and Design web hosting and related services as provided
under this agreement. Customers are responsible for collecting such taxes,
duties or levies from end users as imposed by authority, government, government
agency or commission or crown corporation.
ACD Hosting and Design reserves the right to charge the Customer standard
hourly rates $75/hour US ($37.50 minimum per instance) to cover the resolution
of excessive or unusual problems or complaints.
4.3 Cancellation Policy - All hosting
contracts, unless otherwise negotiated, are month-to-month. The cancellation
of any month-to-month hosting contract by the Customer MUST occur via
the Cancellation Form provided in the ACD Hosting and Design Customer
Service Center located at https://support.ACD Hosting and Design.com.
The form must be submitted at least 30 days prior to the requested cancellation
date. There are no partial refunds or credits for early cancellations.
All payments to ACD Hosting and Design are final and non-refundable.
4.4 Bandwidth Usage - *Applies to metered
bandwidth customers only. Monthly bandwidth overages will be billed to
Customer at regular rates without further notice on a monthly basis. If
bandwidth overages become excessive during any given billing period ACD
Hosting and Design may at its discretion bill and collect for the overages
without notice to Customer.
5. Acceptable Use Policy
Customers shall at all times comply with and help ensure
that they and their clients comply with the terms and conditions of the
current version of the Acceptable Use Policy (AUP) posted at www.ACD Hosting
and Design.com. Customer agrees that ACD Hosting and Design may amend
the terms of the AUP from time to time by posting a new or different version
of the Acceptable Use Policy at www.ACD Hosting and Design.com. The Customer
shall include the terms and conditions set out in the Acceptable Use Policy
in an Acceptable Use Policy with its own clients. Violation of the terms
set forth in ACD Hosting and Design's AUP will result in an immediate
and indefinite suspension of Customer's services solely at the discretion
of ACD Hosting and Design.
6. 99.99% Uptime Guarantee
ACD Hosting and Design endeavors to provide the most
reliable network infrastructure possible to its Customers. To Customers
in good financial standing with ACD Hosting and Design we guarantee that
our network is available 99.99% of the time in a given month, excluding
scheduled maintenance. The network is defined as core network infrastructure
excluding the hardware, services and software running on your server.
Network downtime is measured from the moment the Customer notifies a ACD
Hosting and Design support representative of a network failure to the
time the Network responds to an external "ping" request. Notification
of network failure must occur at the time of the outage and not after
the fact. If network downtime exceeds .01% in a given month, the Customer
will be credited 5% of their monthly hosting fee and an additional 5%
for each additional 2 hours of downtime up to 50% of the Customer 's monthly
hosting fee. Credits shall not be provided to the Customer if network
downtime is the result of: a) scheduled maintenance b) circumstances beyond
ACD Hosting and Design's reasonable control, including, but not limited
to: dDOS or other network attacks, upstream or 3rd party network outages,
war, fire, flood, sabotage, labor disturbance, acts of government, acts
of god or c) breaking this Agreement or ACD Hosting and Design's Acceptable
Use Policy.
7. Temporary Service Suspension
The Customer agrees that it may be necessary for ACD
Hosting and Design to temporarily suspend services for technical reasons
or to maintain the ACD Hosting and Design network, the Equipment or any
other facilities, the timing of which will be as determined by ACD Hosting
and Design. Such suspension of the Services will not be an interruption
of the ACD Hosting and Design Services for the purpose of calculating
network availability or the Customer's entitlement to credit for network
interruption.
8. Emergency Service Suspension
ACD Hosting and Design may interrupt the Services at
any time for any duration of time, without penalty or liability for any
claim by the Customer, where necessary to prevent improper or unlawful
use of ACD Hosting and Design Services or network. Such suspension of
Services will not be an interruption for the purpose of calculating network
availability or the Customer's entitlement to credit for network interruption.
9. Data Backups
ACD Hosting and Design offers data backup services for
your critical data files. We make every effort to ensure the reliability
of this process. However, because of technical issues regarding backups
on live servers and the possibility of data corruption on backup and restore,
ACD Hosting and Design cannot guarantee any data can be fully restored.
The Customer will hold ACD Hosting and Design without penalty or liability
for any claim resulting from a failed backup and/or restore procedure.
10. Compromised/Hacked Server
A compromised or "hacked" server is a serious
threat to our network. ACD Hosting and Design, at its sole discretion,
will take any and all measures to prevent a compromised server from doing
additional damage to its own system and files or to the rest of the network.
ACD Hosting and Design may at its discretion charge a reconnect fee of
$25 for any server that has been disconnected due to compromise or other
AUP violation.
Determination that a server has been compromised:
By the Client - If you believe your system may have
been hacked, immediately report the situation to ACD Hosting and Design
technical support. ACD Hosting and Design will examine your system and
may implement additional monitoring of your system.
By ACD Hosting and Design - If a ACD Hosting and Design
System Administrator believes a server on our network is compromised,
ACD Hosting and Design will: 1) disconnect the server from the network,
2) contact the client, and 3) provide evidence of the server being "hacked".
11. Proprietary Rights
The Customer shall not display or otherwise use any trade
mark, trade name, logo, symbols, coined word or combination of words used
by ACD Hosting and Design or permit the same to be displayed or otherwise
used in connection with any business conducted or controlled by the Customer
except as may be specified or approved by ACD Hosting and Design in writing.
12. Termination of Agreement
If Customer breaches any of its obligations under this
agreement or the Acceptable Use Policy (AUP) then ACD Hosting and Design
may terminate this agreement at any time and without prior notice.
12.1 Discretionary Suspension or Cancellation of Services
ACD Hosting and Design reserves the right to refuse,
suspend or cancel services provided to Customer for any reason ACD Hosting
and Design deems necessary or warranted, including but not limited to,
abusive or belligerent behavior, excessive administrative issues, consistent
delinquent or late payments. ACD Hosting and Design may exercise this
right at any time without prior warning or further explanation to Customer.
ACD Hosting and Design is not responsible for any loss
of data or downtime resulting from willful, accidental or mistaken disconnection
or cancellation of an account.
13. Limitation of Liability
Customer acknowledges and agrees neither ACD Hosting
and Design nor any of its members, shareholders, directors, officers,
employees or representatives will be liable for any special, indirect,
consequential, punitive or exemplary damages, or damages (including but
not limited to damages for loss of profits or savings, loss of data, or
loss of use) in connection with this agreement. If, despite the foregoing
limitations, ACD Hosting and Design or any of its shareholders, directors,
officers, employees or representatives should become liable to Customer
or any other person in connection with this agreement for ANY REASON,
then the maximum aggregate liability of ACD Hosting and Design, its members,
shareholders, directors, officers, employees and representatives for all
such things and to all such parties will be limited to the lesser of the
actual amount of loss or damage suffered by the claimant or the amount
payable by Customer to ACD Hosting and Design for one month of service
under this agreement.
14. Indemnity
Customer will indemnify and save harmless ACD Hosting
and Design and its members, shareholders, directors, officers, employees,
agents, contractors, and representatives from and against all damages,
losses, costs and expenses (including actual legal fees and costs), fines
and liabilities incurred by or awarded, asserted or claimed against ACD
Hosting and Design or any of its members, shareholders, directors, officers,
employees and representatives in connection with Customer's negligence,
activities or omissions, or breaches of its obligations under this agreement,
including claims brought by a person using or relying upon any advice
given or publication produced and distributed by Customer.
15. Governing Law
This agreement shall be interpreted in accordance with
and be governed in all respects by the laws of the Province of British
Columbia and the laws of Canada applicable therein. The courts of British
Columbia shall have non-exclusive jurisdiction to entertain any action
or proceeding brought by the parties in connection with this agreement
or any alleged breach of this agreement. The parties each attorney irrevocably
to the jurisdiction of such courts.
16. Customer Acknowledgement
Customer acknowledges that it accepts all risk of any
unauthorized or illegal use of the ACD Hosting and Design network or any
inter-connected network by third parties. ACD Hosting and Design provides
no warranties, makes no representations, and accepts no liability for
the unauthorized or illegal access or interference with the Customer's
server/network.
17. Electronic Commerce
The Customer is solely responsible for all aspects of their online store
or e-business. This includes, but is not limited to:
- The accuracy of statements and materials related to your products
and/or services.
- The accurate calculation and application of shipping and sales tax.
- Processing Customer orders, inquiries and complaints.
- Maintaining the confidentiality of Customer's client credit card numbers
and private information.
18. IP Address Ownership and Usage
ACD Hosting and Design assigns IP (Internet Protocol)
addresses to Customers for their use. Customers have no right to use ACD
Hosting and Design IP addresses not assigned to them, to move IPs between
different servers or accounts or in ways not permitted by ACD Hosting
and Design. ACD Hosting and Design maintains ownership of all IP addresses
that are assigned to Customers and reserves the right to change or remove
them at its sole and absolute discretion. Typically, however, these changes
are rare and made only at the request of ARIN or an upstream provider.
PLEASE NOTE: The allocation of IP addresses is restricted by the policies
of ARIN. These policies dictate that name-based hosting MUST be used whenever
possible. ACD Hosting and Design reserves the right to periodically review
IP address usage and revoke authorization to use those IP addresses not
being utilized or where name-based hosting could be used.
19. ACD Hosting and Design Administrative Account and
Software
For the purposes of Datacenter, Network, Server maintenance,
inventory and related activities, ACD Hosting and Design staff and management
retain the right to administrative access to any and all dedicated, Virtual
Private and shared servers on their network. To facilitate this, all ACD
Hosting and Design servers may include a ACD Hosting and Design administrative
account and/or daemon designed for these purposes. See Acceptable Use
Policy (AUP) for more details. |
