SERVICE DESCRIPTION: As a World Wide Web service provider, 1stcom provides Internet web hosting, ecommerce, and associated services and maintains a network of dedicated server computers, routers, hubs, switches, other equipment and software (collectively, the “Network”) which is integrated with the Internet. This Network sends and receives data and information in relationship to the World Wide Web. Customer wishes to connect to the World Wide Web utilizing the hardware and software resources of 1stcom to establish an Internet web presence using 1stcom’s Network.
2. CONDITIONS/CANCELLATIONS: The application and this Agreement constitute a legal and binding contract between 1stcom and the Customer and does not extend to any other person or entity. Customer may resell to third parties but is responsible for third party activities and content, and is bound by the terms under this Agreement. Cancellations for monthly service; after
the application is received and web space is setup will still hold the Customer responsible for costs incurred by 1stcom concerning the setup of the web space. All cancellations shall be in writing
and delivered via postal mail or facsimile email to the sales department of 1stcom with proper proof that the party sending the cancellation is the owner of the hosted domain or the use of the online
cancellation, or phone with proper verification of identity to include account username and password. No cancellation will be accepted without this information which is used as proof of identity. Cancellations for dedicated or contract service extending beyond monthly service must be made in writing and sent by postal mail 60 days prior to date service is to be stopped and or canceled. Early termination’s of contracted services for dedicated servers will have a 2 (two) month early cancellation charge applied to the clients account.
2a. EMAIL SERVICE: All hosting account include email accounts with the domain name. Email shall not be left on the web hosting server more than 90 days. The system will purge any email left unattended on the server after 90 days. Do not check the “leave copy of email on server” box in any email client. All email must be downloaded to your own computer and saved there if you wish to save email for more than 90 days. Any email account that forwards to an AOL email address must be aware that it is possible for spam to be forwarded to your AOL email account. If such email that is forwarded to an AOL account is then submitted to AOL as “spam” will cause termination of the email forwarding system for that domain name.
3. WARRANTIES: With respect to the services to be provided herein, the Customer acknowledges that 1stcom makes absolutely no warranties whatsoever, express or implied. As a result, the Customer agrees that 1stcom shall not be liable to the Customer for any claims, damages or loss of profit which may be suffered by the Customer or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to the services provided herein, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or service interruptions.
3a. Backups and Data Loss
Your use of this service is at your sole risk. Our backup service is provided to you as a courtesy. 1stcom is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on 1stcom servers. The best practice is to keep copies of all your data and files on your computer to assure you always have them.
3b. Unlimited Storage
Unlimited storage applies directly to storage of files and material that are directly related to the operation of the website being hosted on our server.. This does NOT include storage of files, pictures or unrelated matter (eg: backups of your personal computer files.) Any files found to be using space that we deem not related to the website will be deleted after a 24 hour notification to user’s email address on the record for the site to remove them.
3c. Unlimited Transfer
1stcom reserves the right to limit processor time, bandwidth, processes, or memory in cases where it is necessary to prevent negatively impacting other users on it’s system. We don’t allow chat programs on our servers and may deem some bandwidth usage as excessive and charge for such bandwidth when it impacts the other users on the same server.
4. INFORMATION: The utilization of any data or information received by the Customer from the utilization of the service to be provided by 1stcom is at the Customer’s sole and absolute risk. 1stcom specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the services to be provided hereby.
5. DOMAIN NAME: If 1stcom shall acquire an Internet Domain Name on behalf of the Customer, then in such case the Customer hereby waives any and all claims which it may have against 1stcom, for any loss, damage, claim or expense arising out of or in relation to the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of the providing of this service by 1stcom for any reason. There are no refunds for domain name registrations as all registrations are done real time. 1stcom uses ICANN accredited registrars for all domain name registrations and is bound by their usage agreement and rules.
6. PAYMENT: The setup fee, Internic Fee and first payment are due at the time the on-line application and Agreement are filled out, and electronically returned to 1stcom. Subsequent subscription payments are due according to the selected fee schedule following the establishment of the web space or service on the Internet. Web space and services will be billed a minimum of one (1) month in advance depending on the selected fee schedule ( monthly, semiannual, annual ). Subsequent payments are due on the anniversary date per the selected subscription schedule and will be charged to the credit card on file until cancellation is received from customer. In the event that the Customer fails to pay for such services in advance, 1stcom shall be entitled to unilaterally terminate this Agreement and discontinue the service(s) until payment is made. This shall include multiple accounts held by the Customer under other domain names. If payment is not made a prorated refund shall be issued for any balances that may remain for multiple domains. There will be a $10 reinstatement fee for all suspended domains and a $5 Late fee for any payments not made by due date.
7. UNILATERAL SERVICE REVOCATION: In the event that 1stcom may at any time believe that the service is being utilized for unlawful purposes by the Customer or in contravention with the terms and provisions herewith, 1stcom may immediately discontinue such service to the Customer without liability. This will include failure to pay, adult content, sexual content, pornographic content or use of programs that 1stcom would consider a security risk to other domains on said server, and/or unsolicited email (spam) including the advertisement of domains hosted on our servers. All charges associated with handling Spam complaints will be charged to the violating customer at the rate of $140 per hour. This includes use of programs that cause server disruption, cgi scripts used to send unsolicited email and any other use that would cause server admin to repair or remove violating scripts or actions.Email accounts are limited to direct users of the domain are are not meant to be used as giveaways for promotional purposes.
8. INDEMNIFICATION: The Customer shall indemnify and hold harmless 1stcom from any and all loss, cost, expense, and damage on account of any and all manner of claims, demands, actions, suits, proceedings, judgments, costs and expenses that may be initiated against 1stcom and 1stcom’s officers, directors, and employees for any service provided to Customer by 1stcom to include web space content that violates any copyright, proprietary right of any person, state and federal regulations, or contains any matter that is libelous or scandalous.
9. CHANGES IN TERMS OF AGREEMENT: 1stcom reserves the right to make changes to the terms and conditions of this Agreement at any time, and to the on-line application and schedule of service plans to include service pricing, advising of the change and the effective date thereof, but with changes in service fees being effective only at the end of any period for which the Customer has prepaid. Utilization of the service by the Customer following the effective date of such change shall constitute acceptance by the Customer of such change(s).
10. ENTIRE AGREEMENT AND UNDERSTANDING: This instrument and the application for web space and services constitute the entire agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter of this Agreement.
11. RELATIONSHIP: The parties hereto are independent entities and nothing contained in this Agreement shall be construed to constitute Customer an agent, employee, partner, independent contractor, joint venture, or any other similar entity.
12. GOVERNING LAW: This Agreement shall be governed by the laws of the Province of Ontario in Canada. Each party agrees that jurisdiction and venue for any and all claims, disputes or other matters arising out of the services provided herein and under this Agreement will only lie in Toronto, Ontario. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement and services provided herein.
13. SEVERABILITY: In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid in whole or in part for any reason, the remaining provisions of this Agreement shall remain in full force and effect.
14. CONFIDENTIALITY: Customer acknowledges that any information not generally known by or disclosed to the public to include but not limited to computer programs, source code, algorithms and inventions are the property of 1stcom and may not be utilized or released without the express written permission of 1stcom. 1stcom does not provide to any party customer information.
15. INTERPRETATION: The format, words and phrases used herein shall have the meaning generally understood in the Telecommunications/Software/Internet Industries. This Agreement shall be construed in accordance with its fair meaning and not against the drafting party. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and in consideration of the covenants and agreements contained herein, do hereby execute this instrument, with each party warranting their ability to enter into this Agreement for the person or entity herein named as a party hereto. By filling out the on-line application directly or by placing an order telephonically and/or clicking on any order button, Customer agrees to all the terms and conditions of this Agreement.