Domain Name Registration and Network Conditions of Use
Eniga Hosting Solutions Registration Agreement
This Registration Agreement (this "Agreement") sets forth the terms and conditions of your use of Eniga Hosting Solutions Inc. ("Eniga Hosting Solutions") to assist you in registering a domain name on the Internet. Eniga Hosting Solutions will use the information you have provided in the Order Online form to process your registration and obtain an Internet web address domain name for you to use (the "Domain Name"). Eniga Hosting Solutions will make all necessary registration arrangements with an accredited registrar ("OpenSRS") of the Internet Corporation for Assigned Names and Numbers ("ICANN"). To complete the registration process, you must read and agree to be bound by all terms and conditions of the Agreement, the fee schedules on the Online Order form and any polices that are or may be published by Eniga Hosting Solutions. This Agreement will become effective when accepted by Eniga Hosting Solutions. You acknowledge that Eniga Hosting Solutions may modify this agreement or any of its policies if necessary to comply with its agreement with the Registrar for any other business purpose and that you will be bound by the modified Agreement and policies.
1. As consideration for Eniga Hosting Solutions's domain name registration services, you agree to pay all applicable registration fees and renewal fees. Such registration fees and renewal fees are non-refundable. You will be notified when renewal fees are due via email, and it will be your responsibility to ensure that such fees are paid. If you do not pay the renewal fees by the time specified in the renewal notice, your registration will be cancelled. You agree that Eniga Hosting Solutions will have no liability whatsoever with respect to any such cancellation and that Eniga Hosting Solutions may cancel or transfer the Domain Name in the event of any delinquency in payment.
2. Eniga Hosting Solutions claims no control whatsoever over the content of the information passing through the Eniga Hosting Solutions WEB SYSTEM. Eniga Hosting Solutions makes no warranties of any kind, whether expressed or implied, for the service it is providing. Eniga Hosting Solutions also disclaims any warranty of merchantability or fitness for a particular purpose.
3. In connection with requesting that Eniga Hosting Solutions assist you with registration services, you represent and warrant the following: (a) the registration you have asked Eniga Hosting Solutions to make is not made with a "bad faith intent."; (b) the Domain Name does not conflict with another domain name; (c) to your knowledge, the registration of Domain Name will not infringe upon or otherwise violate the rights of any third party; (d) you are not seeking registration for an unlawful purpose; (e) you will not use the Domain Name to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, and (f) you will not knowingly use the Domain Name in violation of any applicable laws or regulations, for any slanderous purposes. It is you responsibility to determine whether the Domain Name registration infringes or violates someone else's rights. You represent and warrant that all information provided by you in connection with your Online Order form is complete and accurate. Eniga Hosting Solutions makes no representation or warranties of any kind regarding the availability, or the propriety of any use of, any Domain Name requested by you. Eniga Hosting Solutions does not represent or warrant that its services in connection with registration of the Domain Name will prevent challenges to the Domain Name or shield you in any way for liability for the use of the Domain Name.
4. You are required to provide certain information on the Online Order form and to update this information to keep it current, complete and accurate. You acknowledge that providing inaccurate information or failing to update information promptly will constitute a material breach of this Agreement and will be a basis for cancellation of the Domain Name. IN THE EVENT THAT ANY DISPUTE ARISES AS DESCRIBED IN SECTIONS 2 AND 3, Eniga Hosting Solutions RESERVES THE RIGHT TO DISCLOSE YOUR NAME, ADDRESS, EMAIL ADDRESS, OTHER DOMAIN NAMES REGISTERED THROUGH Eniga Hosting Solutions'S SERVICES, AND ANY OTHER IDENTIFYING INFORMATION YOU HAVE PROVIDED ON THE ONLINE ORDER FORM. Eniga Hosting Solutions will not otherwise disclose your information to any third party unless it is required to do so to maintain the Domain Name. You may request a copy of your information in Eniga Hosting Solutions's possession to review, modify or update such information via email to accounts@eniga.com.
5. If you are completing this registration on behalf of someone, you warrant that you are authorized to do so. If an authorized agent or a representative is completing this registration on your behalf, your continued use of the Domain Name shall evidence your acceptance of all the terms and conditions of this Agreement. You agree that if you license the use of the Domain Name to a third party, you remain responsible for all obligations under this Agreement.
6. YOU AGREE THAT Eniga Hosting Solutions WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS THAT MAY OCCUR DUE TO (a) ANY LOSS OF REGISTRATION OF A DOMAIN NAME, (b) THE USE OF THE DOMAIN NAME, (c) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE REGISTRAR'S REGISTRATION SYSTEM; (d) THE NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND Eniga Hosting Solutions; (e) EVENTS BEYOND Eniga Hosting Solutions CONTROL; (f) THE PRECESSING OF THE APPLICATION IN CONNECTION WITH THE DOMAIN NAME; (g) THE PROCESSING OF ANY MODIFICATION TO THE RECORD ASSOCIATED WITH THE DOMAIN NAME; (h) THE FAILURE OF YOU OR YOUR AGENT TO PAY ANY FEES DUE HEREUNDER; OR (I) THE APPLICATION OF THE DISPUTE POLICY. FURTHER, Eniga Hosting Solutions WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EVEN IF Eniga Hosting Solutions HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Eniga Hosting Solutions'S MAZIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO Eniga Hosting Solutions FOR REGISTRATION OF THE DOMAIN NAME DURING THE PRIOR TEN (10) YEARS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, Eniga Hosting Solutions'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
7. You agree to defend, indemnify and hold harmless Eniga Hosting Solutions and any applicable domain name registry, including the Registrar's and OpenSRS and the directors, officers, employees and agents of each of them and Eniga Hosting Solutions, from the against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from third-party claim, action, dispute or demand related to the Domain Name or the registration or the use thereof.
8. Without limiting its other remedies, upon any breach of this Agreement Eniga Hosting Solutions may cancel, transfer, suspend or otherwise make changes to the Domain Name registration. You also agree that at such time as Eniga Hosting Solutions receives an order from a court or an arbitration award, requiring the revocation, suspension, transfer or modification of the Domain Name registration, Eniga Hosting Solutions shall have the right in its sole discretion to revoke, suspend, transfer or otherwise modify a Domain Name registration.
9. Eniga Hosting Solutions's WEB HOSTING SYSTEM may only be used for lawful purposes. Transmission of any material in violation of any Federal, Provincial or local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret.
You are not permitted to distribute material promoting hatred against individuals or groups or any content, which may be deemed to be illegal according to the laws of Canada. We reserve the right to decline requests for web space rentals and to cancel any account at our discretion. You are also not permitted to distribute material promoting any form of network abuse (Such as bulk Spam mailers, sniffers, or hacking tools).
10. You may not compile or install binary files other that the ones provided on the system. We do not make C compilers available for our web clients, and the PERL binaries provided will *not* have networking support (for example, socket.ph, ftp.pl, etc.) However, if there is any program which you'd like to be added to the available system binaries or scripts please check with your sales representative to arrange approval.
11. You agree to indemnify and hold harmless Eniga Hosting Solutions from any claims resulting from your use of the service, which damages you or another party.
12. Telnet and Shell Access is strictly prohibited.
13. Cancellations will NOT generate ANY refund.
14. If any Eniga Hosting Solutions account is generating web traffic considered unusually high, we may require the site to be placed on a Heavy User server Virtual Server. We reserve the right to make this determination at our discretion.
15. Nothing contained in this agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of Eniga Hosting Solutions to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by Eniga Hosting Solutions of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, other original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed by Eniga Hosting Solutions. This Agreement and Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and Eniga Hosting Solutions and supersede and govern all prior proposals, agreements, or other communications.
16. Use of Eniga Hosting Solutions's WEB HOSTING SYSTEM constitutes acceptance of these Terms and Conditions.
DOMAIN PARKING / RESERVATIONS
1. There is no charge for indefinite parking of domains on Eniga Hosting Solutions's servers. However, in the event domain that was registered is transferred to another service provider, there will be an administrative transfer cost of (CDN $10.00) per domain assessed plus applicable taxes. Domain registration is heavily subsidized, and therefore this fee is required to ensure that we can continue to offer exceptionally low cost domain registrations for our valued customers. You are not required to host or purchase hosting with us.
2. Domain Parking does NOT include Web Space or Virtual Hosting. You are not provided with the option to submit your own DNS entries, as we are NOT a Registrar and therefore assume that you wish to obtain your hosting services directly through Eniga Hosting Solutions Inc.
3. Domain name payments are non-refundable. Once a domain name is registered, the WHOIS database stores the information and is kept there for a period of one year, until the date of renewal. Payment will NOT be credited back.
4. In the event there is a misspelling of a Domain Name, while being registered online, you as the customer must register the correct spelling of that name. There are NO refunds issued for misspelled Domain Names.
Email MAILING LISTS
1. Email Accounts are restricted to a maximum size of 10MBytes of space on the Eniga Hosting Solutions email servers. If this space is exceeded, this may result in e-mail being lost or your account being suspended or terminated.
2. Email Accounts are restricted to a maximum e-mail transfer of 7MB per Mail Server request. This is restricted by the Mail Server.
3. Deletions of Email Accounts are queued for execution once a day (overnight).
HEAVY USER SERVER
1. This server is available by approval by a Senior Eniga Hosting Solutions officer only.
DISPUTES BETWEEN DOMAIN NAME HOLDERS AND THIRD PARTIES
The applicant acknowledges that any third party may, for whatever reason, challenge the use by the applicant of the domain name before an Administrative Domain Name Challenge Panel (ACP) in accordance with the WIPO ACP rules. The applicant further acknowledges that the decisions of an ACP may determine rights of applicant or other parties or both to the use of a particular domain name, and that, with respect to its right to use a particular domain name or names; it will be bound by ACP decisions.
Network SLA
Eniga Hosting Solutions will provide 99.9% uninterrupted transit to the Internet to all co-location and dedicated hosting customers who have purchased said service from Eniga Hosting Solutions. Should transit to the Internet become unavailable for a cumulative period up to one hour in any one calendar month, customers will receive a refund or credit equivalent to one day of the customer's recurring monthly lease or co-location fees on their next invoice. Customers will receive an additional refund of one day of the recurring monthly lease of co-location fees for each additional hour, or portion thereof, of unavailability. All refund calculations will be based on unavailability in one-hour increments. The above agreement does not cover outages caused by equipment or events not under direct control of Eniga Hosting Solutions or caused by individuals not directly employed by Eniga Hosting Solutions. This agreement does not cover outages during scheduled or emergency maintenance or facility maintenance. Scheduled and facility maintenance warning will be posted for the customer prior to them happening, and will not exceed that of the guaranteed uptime. Any and all refunds will not exceed 50% of the customer's recurring monthly lease or co-location fees for the month in which the refund is paid.
Hardware SLA
Eniga Hosting Solutions guarantees the functioning of all leased servers and their components. Eniga Hosting Solutions will replace any faulty hardware at no cost to the customer. Hardware replacement will commence as soon as the faulty component(s) have been identified. All components will be replaced in two hours or less. Should the replacement take longer than two hours, customers will receive a credit equivalent to one day of the customer's recurring monthly lease fees on their next invoice for each hour over the initial two hours allotted to rectify the problem. Hardware problems are defined as processor(s), RAM, hard drives, motherboards, NIC cards and power supplies. This guarantee does not include multi-processor machines. This guarantee also excludes the time required to rebuild a RAID array.
Power SLA
Eniga Hosting Solutions guarantees the availability power 24/7/365. In the unlikely event power becomes unavailable; we will refund you one day of your recurring monthly lease or co-location fees and an additional refund of one day of the recurring monthly fees for each additional hour, or portion thereof. Any and all refunds will not exceed 50% of the customer's recurring monthly lease or co-location fees for the month in which the refund is paid. Bandwidth fees are not subject to any discounts.
ENIGA HOSTING SOLUTIONS - Master Services Agreement
This Master Services Agreement (the "Agreement") between Eniga Hosting Solutions ("Eniga") and the customer ("Customer") is made effective as of the date of Customer subscription to Eniga service(s).
1. Overview.
This Agreement states the terms and conditions by which Eniga Hosting Solutions will deliver and Customer will receive any or all of the services provided by Eniga, including bandwidth, managed services, professional/support services and content delivery. Each Exhibit(s) submitted, accepted and executed by both parties is hereby incorporated by reference herein. This Agreement is intended to cover any and all Services ordered by Customer and provided by Eniga. Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.
2. Delivery of Services; Terms; Fees.
2.1 Delivery of Services. By submitting an Order, whether by phone, fax, in person or online, Customer agrees to take and pay for (i) the Service(s) during the Initial Term and for any Renewal Term, and (ii) certain limited services and equipment needed by Customer on a "one-off" or emergency basis ("Supplemental Services") where such services are not included within the scope of the Services as described in the Exhibit(s). Customer agrees to pay Eniga Hosting Solutions the fees charged by Eniga for Supplemental Services, and hereby authorizes Eniga to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with Eniga's current policies and prices. A work order will be provided and must be approved before any work is done for the Customer by Eniga Hosting Solutions.
2.2 Term.
(a) Term Commencement. The term for each Service will commence on the date specified on the Exhibit(s).
(b) Renewal Term(s). Upon expiration of the Initial Term, the term shall be extended automatically for the original term set forth by the agreement ("Renewal Term"), unless and until either party gives the other no less than thirty (30) days' written notice of a termination. The termination of any Service will not affect Customer's obligations to pay for other Service(s).
3. Fees and Payment Terms.
3.1 Fees and Expenses. Customer will pay all fees due according to the prices and terms listed in the Exhibit(s) and all other fees incurred by Customer related to Supplemental Services, Professional Services, reinstatement of service fees and fees for switching or upgrading servers, all in accordance with then current Eniga prices and policies.
3.2 Payment Terms. On the Service Commencement Date for each Service, Customer will be billed (the "Initial Bill") an amount equal to (i) all non-recurring charges indicated in the Order and (ii) the monthly recurring charges for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur on the first day of each calendar month of the term. Monthly recurring charges for all months will be billed in advance of the provision of Services. All other charges for Services received and expenses incurred for Supplemental or Professional Services during a month (e.g., bandwidth usage fees) will either be billed immediately or at the end of the month in which the Services were provided. Payment for all fees is due upon receipt of each Eniga Hosting Solutions invoice. All payments will be made in Canadian Dollars unless otherwise specified. Notwithstanding anything to the contrary in this Agreement, Eniga Hosting Solutions expressly reserves the right to alter, change or amend its billing practices in its sole discretion, including, but not limited to, the date on which such billing will occur and the types of charges that will be included in such bills.
3.3 Late payments. Any payment not received within fifteen (15) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a "Payment Default") will accrue interest at a rate of two percent (2%) per month if Eniga Hosting Solutions deems this fitting. Customer also shall pay to Eniga Hosting Solutions all expenses incurred by Eniga in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable attorneys' fees and the fees of any collection agency retained by Eniga.
3.4 Taxes. Customer will be responsible for and will pay in full, except for taxes on Eniga net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
4. Intellectual Property Ownership. This Agreement does not transfer from Eniga to Customer any Eniga Technology, and all right, title and interest in and to Eniga Technology will remain solely with Eniga. This Agreement does not transfer from Customer to Eniga any Customer Technology, and all right, title and interest in and to Customer Technology will remain solely with Customer. Eniga and Customer each agree that it will not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.
5. Limited Warranties.
5.1 Limitation. Each of the guarantees in the Order is null and void if Customer fails to follow Eniga's Rules and Regulations and other policies or otherwise breaches the Agreement in any respect.
5.2 No Other Warranty. ENIGA DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS FACILITIES. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CUSTOMER'S OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS PROVIDED IN THE ORDER, ENIGA DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS ND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ENIGA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. ENIGA DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM ENIGA'S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ENIGA CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY ENIGA DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
6. Customer Obligations.
6.1 Warranties of Customer.
(a) General. Customer represents and warrants that (i) Customer is at least eighteen (18) years of age; (ii) Customer possesses the legal right and ability to enter into this Agreement, and (iii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other Eniga customers' use of Eniga services. Customer assumes all risks related to processing of transactions related to electronic commerce.
(b) Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Eniga will have the right, in its sole discretion, to suspend or terminate immediately any Services.
6.2 Compliance with Law and Rules and Regulations. Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws and regulations and the Rules and Regulations, as updated by Eniga from time to time. The Rules and Regulations are incorporated herein and made a part hereof by this reference. Eniga may change the Rules and Regulations upon fifteen (15) days' notice to Customer, which notice may be provided by posting such new Rules and Regulations at the Eniga Site http://www.eniga.com Customer may request a current copy of the Rules and Regulations by sending or faxing a request to Eniga. Customer agrees that it has received, read and understands the current version of the Rules and Regulations.
6.3 Third Party Rights. Customer shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined in Section 7.4) or that appear during use of any Third Party Product; or (ii) reverse engineer, de-compile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7. Limitations of Liability.
7.1 Delays and Interruptions. ENIGA SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND ENIGA SHALL HAVE NO LIABILITY THEREFOR. EXCEPT TO THE EXTENT OF ENIGA'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER ENIGA NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ENIGA'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ENIGA'S OR ITS NETWORK SERVICE SUPPLIER'S NEGLIGENCE.
7.2 Consequential Damages. EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
7.3 Notwithstanding anything else to the contrary contained in this Agreement, Eniga's maximum aggregate liability to Customer for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Customer to Eniga for the prior three (3) months.
7.4 Eniga may provide Customer access to other third party software and/or services ("Third Party Products") through reseller relationships Eniga has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by Eniga and not by the Third Party Vendor. Neither Eniga nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM ENIGA OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ENIGA NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND ENIGA WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
8. Indemnification. Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, "Losses") resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of (i) any infringement or misappropriation or alleged infringement or misappropriation of any International copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributory caused by the other party) and (ii) any violation of or failure to comply with the Rules and Regulations. Customer further agrees to indemnify Eniga and its affiliates against any Losses, which arise out of, or relate to any content provided by Customer or the customers/clients of Customer, and Customer will reimburse Eniga and its affiliates for all legal expenses, including reasonable attorneys' fees, incurred by Eniga and its affiliates in connection with any such Losses.
9. Termination.
9.1 Termination without Cause during Renewal Term. This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than thirty (30) days' prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 9.1, any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
9.2 Termination For Cause. In addition to any other rights it may have under this Agreement or applicable law, Eniga may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a Payment Default, or (ii) Customer's breach or failure to comply with any other obligation of Customer under this Agreement including, but not limited to, its failure to comply with any of the terms of the Rules and Regulations or other policies of Eniga. Customer may terminate this Agreement if Eniga breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by Eniga under this Section 9.2, all remaining monthly recurring and other charges specified on the applicable Order for the balance of the then current term shall immediately become due and payable. In addition to the foregoing, Eniga reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules and Regulations or which Eniga believes in its sole discretion to be illegal or potentially harmful to others or may expose Eniga to harm or liability.
9.3 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
9.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4, 5, 7, 8, 9, 10 and 11.
9.5 IP Addresses: Upon expiration, cancellation or termination of this Agreement, Customer shall relinquish any Internet protocol ("IP") numbers, addresses or address blocks assigned to Customer by Eniga or its network services supplier (but not the URL or top level domain connected therewith). Eniga reserves, in its sole discretion, the right to change or remove any and all such IP numbers, addresses or address blocks.
10. Definitions.
(a) "Customer Technology" means Customer's proprietary technology, including Customer's Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) and also including any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice, or developed during the term of this Agreement by Customer.
(b) "Initial Term" means the minimum term for which Eniga will provide the Service(s) to Customer, as indicated on the Exhibit(s).
(c) "Professional Services" means any non-standard professional, consulting or support service provided by Eniga to Customer, including, without limitation, those services and fees indicated on the Eniga website at http://www.eniga.com
(d) "Eniga Technology" means Eniga's proprietary technology, including Eniga Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network and any related intellectual property rights throughout the world (whether owned by Eniga or licensed to Eniga from a third party) and also including any derivatives, improvements, enhancements or extensions of Eniga Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the art.
(e) "Renewal Term" means any service term following the Initial Term, as specified in Section 2.2.
(f) "Rules and Regulations" means the Eniga general rules and regulations governing Customer's use of Services, including, but not limited to, online conduct and Eniga's Acceptable Use Policy, which can be found at the bottom of this agreement.
(g) "Service(s)" means the specific service(s) provided by Eniga pursuant to this Agreement.
(h) "Service Commencement Date" means the date Eniga will begin providing the Service(s) to Customer as indicated in the Exhibit(s).
11. Use of Customer's Name for Marketing and Promotion. Customer agrees that during the term of this Agreement Eniga may publicly refer to Customer, orally and in writing, as a Customer of Eniga in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.
12. Miscellaneous Provisions. Eniga shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Customer resulting, directly or indirectly, from any unforeseen or force majeure event. Eniga and Customer agree that, except as otherwise expressly provided in this Agreement, the Order or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE PROVINCIAL AND FEDERAL COURTS IN ONTARIO, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Customer may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Eniga, and any attempted assignment or delegation without such consent will be void. Eniga may assign this Agreement in whole or part. Eniga also may delegate the performance of certain Services to third parties, including Eniga's wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. Eniga and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Eniga and Customer. Neither Eniga nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once subscribed to service, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by authorized representatives of Eniga with immediate Customer notification.
From time to time Eniga Hosting Solutions (Eniga) may impose reasonable rules and regulations regarding the use of its services. Such rules and regulations are called Acceptable Use Policies (AUPs) and are available upon request. The AUPs are not exhaustive and Eniga reserves the right to modify the AUPs at any time, effective upon either the posting of the modified AUPs to http://www.eniga.com or notification of the modified AUPs. By registering for and using the services, and thereby accepting the terms and conditions of the Master Services Agreement or its equivalent, you agree to abide by the AUPs as modified from time to time. Any violation of the AUPs may result in the suspension or termination of your account or such other action, as Eniga deems appropriate. An unlisted activity may also be a violation of the AUPs if it is illegal, irresponsible, or disruptive use of the Internet. No credits are issued for any interruption in service resulting from policy violations.
VIOLATION OF ANY AUP IS STRICTLY PROHIBITED AND MAY RESULT IN THE IMMEDIATE TERMINATION OR SUSPENSION OF THE SERVICES YOU RECEIVE FROM ENIGA HOSTING SOLUTIONS. YOU SHALL REMAIN SOLELY LIABLE AND RESPONSIBLE FOR YOUR USE OF THE SERVICES AND ANY AND ALL CONTENT THAT YOU DISPLAY, UPLOAD, DOWNLOAD OR TRANSMIT THROUGH THE USE OF THE SERVICES. "CONTENT" INCLUDES, WITHOUT LIMITATION, YOUR E-MAIL, WEB PAGES, PERSONAL HOME PAGES, AND DOMAIN NAMES. IT IS ENIGA HOSTING SOLUTIONS'S POLICY TO TERMINATE REPEAT INFRINGERS. ENIGA HOSTING SOLUTIONS RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE AT ANY TIME.
Customer Security Responsibilities - The customer is solely responsible for any breaches of security affecting servers under customer control. If a customer's server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer's server and any other requirement affected by the security breach. The labor used to rectify any such damage is categorized as emergency security breach recovery and is currently charged at $100 CAD per hour. Enquiries regarding security matters may be directed to Network Security support@eniga.com
System and Network Security - Violations of system or network security are prohibited, and may result in criminal and civil liability. Eniga may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
- Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
- Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Eniga. Such labor is categorized as emergency security breach recovery and is currently charged at $100 CAD per hour. Enquiries regarding security matters may be directed to Network Security support@eniga.com Eniga is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Eniga urges its customers to assume that all of their online communications are insecure. Eniga cannot take responsibility for the security of information transmitted over Eniga's facilities.
Password Protection - The customer is responsible for protecting their password(s). The customer will not use or permit anyone to use Eniga's service to guess passwords by brute-force or other means or to access other systems or networks without authorization. Eniga will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity.
Internet Etiquette - The customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). The customer will comply with the rules appropriate to any network to which Eniga may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, and torturous, indecently depicts children, or is likely to result in retaliation against Eniga by offended users. Eniga reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC, USENET, instant messengers or any other medium.
Copyright Infringement - Software Piracy Policy - The Eniga network may be used only for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of Canadian, or provincial regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights. Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating international copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law. Eniga will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
Network Responsibility - Customers have a responsibility to use the Eniga network responsibly. This includes respecting the other customers of Eniga Hosting Solutions. Eniga reserves the right to suspend and or cancel service with any customer who uses the Eniga network in such a way that adversely affects other Eniga customers. This includes but is not limited to: Attacking or attempting to gain unauthorized access to servers and services that belong to Eniga or its customers (i.e. computer hacking), and/or Participating in behavior which results in reprisals that adversely affects the Eniga network or other customers' access to the Eniga network. Eniga will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a Eniga customer, whether or not the attacked account or computer belongs to Eniga, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of Eniga is strictly prohibited. Violations of this policy, depending on jurisdiction, may be reported directly to the RCMP's Technological Crime program at http://www.recol.ca. Eniga will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
Security Responsibility - All customers are responsible for maintaining and upgrading any software that is deemed unfit or unsafe by Eniga's Network Security Team. Notification will be made to any customer running exploitable/vulnerable software by the Eniga Network Security Team. This includes but it not limited to your operating system, patches, services, libraries, etc. If you receive an email Eniga's Network Security Team, containing [URGENT] in the subject line, you must complete upgrades stated in the email body in 24 hours or less or your account may be suspended until the problem is rectified. If you receive Email from Eniga's Network Security Team, containing [REQUIRED] in the subject line, you must complete upgrades in 72 hours or less or your account may be suspended until the problem is rectified. If you receive Email from Eniga's Network Security Team, containing [RECOMMENDED] in the subject line, we highly recommend this upgrade but it is not mandatory. One vulnerable server is inherently dangerous to the entire network. If a server is being used in a DDoS (distributed denial of service attack), it can affect all customers on a network. For this reason we take security very seriously.
Lawful Purpose - All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content. Using any Eniga Hosting Solutions service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited. Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of Eniga services or products is prohibited. Using the Eniga network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be distributed legally, even without the act of distribution, is prohibited. Servers hosted within Eniga's network are open to the public. You are solely responsible for your usage of the Eniga network and servers, all traffic going in and out of your switch port, and any statement you make on servers hosted within the Eniga network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
Child Pornography on the Internet - Eniga will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography or any other suitable act in terms of jurisdiction. Customers are ultimately responsible for the actions of their clients over the Eniga network, and will be liable for illegal material posted by their clients. According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years. Violations of the Child Protection Act will be reported to the RCMP.
IP Address Overlap - Eniga administers the network on which customer servers reside. The customer cannot use IP addresses which were not assigned to them by Eniga Hosting Solutions staff. Any server found using IP?s which were not officially assigned, will be suspended from network access until the IP address overlap can be corrected.
IP Address Control - Eniga Hosting Solutions retains all reversing control over all IP addresses without exception. DNS reversing requests can be made by emailing support@eniga.com
IRC - Eniga permits the use of IRC (Internet Relay Chat) clients inside the Eniga network as long as no other terms of this AUP are violated. Eniga reserves the right to prohibit IRCDs (IRC servers). We filter all common IRCD ports by default. Written permission must be gained from Eniga to run an IRCD.
Billing - The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.
Suspension - If Eniga in its sole discretion determines that a customer's server has become the source or target of any violation concerning the Eniga Acceptable Use Policy (AUP), Eniga reserves the right to suspend network access to that server. While Eniga will attempt to contact the customer prior to suspending network access to the customer's server(s), prior notification to the customer is not assured. In certain cases, Eniga will contact law enforcement and other agencies regarding these activities. Customers are responsible for all charges, as well as any fees relating to the investigation, suspension, administration and handling of their servers before, during and after the suspension period.
Cancellation - Eniga reserves the right to cancel service at any time. If inappropriate activity is detected, all accounts of the customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. All fees paid in advance of cancellation will be prorated and paid by Eniga if Eniga institutes its right of cancellation. Any violation of policies, which results in extra costs, will be billed to the customer (i.e. transfer, space, etc.).
Indemnification - Eniga wishes to emphasize that in signing to any service provided by Eniga, customer indemnifies Eniga for any violation of the Master Services Agreement or its equivalent, law or AUP that results in loss to Eniga or the bringing of any claim against Eniga by any thirdparty. This means that if Eniga is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against Eniga, plus costs and reasonable attorney's fees. Disclaimer of Responsibility - Eniga is under no duty to look at each customer's or user's activities to determine if a violation of the AUPs has occurred, nor do we assume any responsibility through our AUPs to monitor or police Internet-related activities. Eniga disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person's or party's violation of this policy.
All Sub-Networks, resellers and managed servers of Eniga must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation.
INDIRECT OR ATTEMPTED VIOLATIONS OF THE AUPs AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF SHALL BE CONSIDERED VIOLATIONS OF THESE AUPs BY YOU.
Eniga Hosting Solutions is a Web Hosting Service owned and maintained by Eniga 2010 Inc.
