Terms of Service

Smart Servers Terms of Service

Standard Terms and Conditions of Use

The following words used in context of the Service Agreement are defined as follows:

"Provider": Smart Servers.

"Client": The person or entity who is applying for or using the services of the Provider.

The Provider agrees to provide, and the Client agrees to receive, access to the services according to the following terms and conditions:

Term and Cancellation

A 30 day no-obligation trial period applies to all new accounts. After the initial 30 day evaluation period the client agrees to a minimum 3 month term of service after which this Agreement may be terminated by either party without cause by giving the other party 90 days written notice. Notwithstanding the above the Provider may terminate service under this Agreement at any time without penalty if the Client fails to comply with the terms of this Agreement.

Lawful Purpose and Acceptable Use

The Client may only use the Provider's Server for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. This includes sites that may infer sexual content, or link to adult content elsewhere. The Provider strongly encourages you to choose carefully what you place on the server for distribution over the Internet. What you may not consider to be pornographic may be ruled as such in another jurisdiction. The Provider reserves the right to remove any material that it deems to be obscene, pornographic, etc. We will not knowingly host any site that has sexually oriented materials.

The following are not allowed on our servers:

Adult or sexually oriented materials of any kind.
Bulk e-mail to or from our servers.
Sending unsolicited e-mails to more than 25 persons per day.
Receiving responses to bulk e-mails from any other location.
Any programs which monopolize CPU time, bandwidth, or disk activity.
Any program that has an adverse affect on other users.
Any program that we feel poses a security risk.
Any program that we feel is inappropriate on our servers.

Examples of prohibited content include, but are not limited to: 

  • Hacking related sites
  • Warez related sites
  • Torrent related sites
  • File sharing related sites
  • Game servers or related sites
  • Pirated software or related sites
  • IRC software or related services

The Client may not use the services of the Provider to attempt to circumvent user authentication or security of any server host, network, or account. This includes but is not limited to accessing data not owned by or intended for the Client, logging into a server or account the Client is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy. The Client may not attempt to interfere or deny service access to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. The Provider will co-operate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities as necessary in the investigation of suspected criminal violations.

Usage:

All started bandwidth allocations are based upon the sum total of incoming and outgoing bandwidth usage. Any bandwidth usage exceeding the allocation for a given server or service plan will be billed at the rate of $0.10 per Gigabyte. 

Some of our servers offer unmetered usage, which means we do not charge based on the number of hits, or the gigabytes of data transferred. These servers are not however unlimited usage. Any program or user who causes the servers performance to be adversely affected, or who monopolizes the servers CPU, bandwidth, or disk activity will be asked to curtail the activity or reduce usage. Any user who's site or software threatens the availability of services to other customers may be disabled immediately if we feel that it is necessary to protect our other clients interest. Violations of any of our policies may result in account termination or suspension.

At the Provider's and its officer's discretion, access to the services may be revoked at any time for abusive conduct on or of the Internet and its resources as a whole. The Provider and its officer's are deemed as authority to define abusive conduct to the system, and definitions may periodically change or be amended to previous ones. The Provider reserves the right, in its sole discretion, to deactivate the Client's account(s) upon an indication of credit problems including delinquent payments.

Representations and Warranties

The parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, the Provider can make no guarantee that any given reader shall be able to access The Provider's server at any given time. The Provider represents that it shall make every good faith effort to ensure that its server is available as widely as possible and with as little service interruption as possible.

THE PROVIDER'S SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. The Provider claims no control whatsoever over the content of the information passing through the service and makes no warranties of any kind, whether expressed or implied, for the service it is providing. The Provider also disclaims any warranty of merchantability or fitness for a particular purpose.

THIS NO WARRANTY EXPRESSLY INCLUDES ANY REIMBURSEMENT FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE BY PROVIDER OR ITS PROVIDERS BEYOND THE FEES PAID BY THE CLIENT TO PROVIDER FOR SERVICES. The Provider is not responsible for any damages arising from the Client's use of Provider's services or by the Client's inability to use the services for any reason. Further, you agree to indemnify and hold harmless the Provider from any claims resulting from your use of the service which damages you or another party.

While the Provider shall make every reasonable effort to protect and backup data for the Client on a regular basis subject to the provisions of the service which the Client has engaged the Provider to provide. The Provider is not responsible for the Client's files residing on the servers of the Provider. The Client assumes ultimate responsibility for backup of data stored on Provider's servers to the extent deemed necessary by the Client. The Provider will not be responsible for any damage you suffer. This includes loss of data resulting from delays, nondeliveries, or service interruptions caused by its own negligence or your errors or omissions.

Due to the public nature of the Internet, all information should be considered publicly accessible, and important or private information should be treated carefully. The Provider is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilize.

The Client expressly agrees that use of the Provider's Server is at the Client's sole risk. Neither the Provider, its employees, vendors, affiliates, agents, third party information providers, merchants licensers or the like, warrant that the Provider's Server service will not be interrupted or error free, nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Provider's service, unless otherwise expressly stated in this Agreement.

Limitation/Disclaimer of Liability

Under no circumstances, including negligence, shall the Provider, its offices, agents or any one else involved in creating, producing or distributing the Provider's Server service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Provider Server service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to the Provider's records, programs or services. The Client hereby acknowledges that this paragraph shall apply to all content on the Provider's Server service.

Notwithstanding the above, the Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which the Client paid during the term of this Agreement and any reasonable attorney's fee and court costs.

Connection speed represents the speed of a connection to and does not represent guarantees of available end to end bandwidth. The Provider expressly limits its damages to the Client for any non-accessibility time or other down time to the pro rata monthly charge during the system unavailability. The Provider specifically denies any responsibilities for any damages arising as a consequence of such unavailability. In the event that this material is not "Server-ready", the Provider may, at its option and at any time, reject this material, including but not limited to after it has been put on the Provider's Servers. The Provider agrees to notify the Client immediately of its refusal of the material and afford the Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of the Provider. If the Client fails to modify the material, as directed by the Provider, within a reasonable period of time, which shall be determined between the parties themselves, the Agreement shall be deemed to be terminated.

Indemnification

The Client agrees that it shall defend, indemnify, save and hold the Provider harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, ("Liabilities") asserted against the Provider, its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employees or assigns. The Client agrees to defend, indemnify and hold harmless the Provider against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with the Provider's Server; (ii) any material supplied by the Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which the Client sold on the Provider servers.

Modifications

This Agreement constitutes the entire understanding of the parties. Any changes or modifications to this Agreement thereto are agreed to by the both parties upon renewal of Agreement and must be made in writing and signed by both parties.

Resale of the Provider's Service

If the Client acts as a "reseller" of the services provided by the Provider to the Client hereunder, by the Client providing similar services to its customers, then all the terms of this Agreement shall apply to and be provided to the resale client. Without limiting the foregoing, the Client's obligations under this Agreement shall apply to any and all claims made against the Client and/or the Provider which arise out of the resale of the Provider's services.

Miscellaneous

(a) All prior understandings, agreements, representations and warranties, oral or written, between the Client and the Provider are merged in this agreement; it completely expresses their full agreement and has been entered into after full investigation, neither party relying upon any statement made by anyone else that is not set forth in this contract. Further, this Agreement contains the entire agreement between the parties with respect to these matters and there are no promises, agreements, conditions, undertakings, understandings, warranties, covenants or representations, oral or written, express or implied, between them with respect to this Agreement, or the transaction described in this Agreement, other than as set forth in this Agreement.

(b) Neither this contract nor any provision thereof may be waived, changed or cancelled except in writing. This contract shall also apply to and bind the heirs, distributees, legal representatives, successors and permitted assigees of the respective parties.

(c) Each of the parties hereto shall pay its own expenses in connection with this Agreement and the transactions contemplated hereby, including the fees and expenses of its counsel and its certified public accountants.

(d) Assignment. The Provider may assign this Agreement. The Client may not assign this Agreement without the Provider's written consent.

(e) Attorney's Fees. If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding from the nonprevailing party, as well as any reasonable attorneys' fees and costs that the prevailing party incurred prior to commencing the proceeding.

(f) IP Addresses. The Provider maintains control and any ownership of any and all IP numbers and addresses that may be assigned to the Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.

(g) Relationship of the Parties. The parties intend that an independent contractor relationship will be created by this agreement, and that no partnership, joint venture or employee/employer relationship intended.

(h) Governing Law. All questions with respect to the construction of this Agreement and the rights and liabilities of the parties under this Agreement shall be determined in accordance with the laws of the Province of Ontario except to the extent that such laws are superseded by Federal Law.

Acceptance

Use of any or all of the Providers services constitutes acceptance of these terms and conditions

Effective Date: May 15 2012

Smart Servers
3-1750 The Queensway, Suite 1254
Etobicoke, Toronto M9C 5H5 Canada
+1 416 352 5836
Email: service(at)smartservers.com

 

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