Customer Responsibility – The Website Project and its content are subject to the approval of Mexxus. The Customer shall supply Mexxus, within a period of (30) days following the execution of this agreement, all the required information to be inserted in the Website Project deemed to consider it completed; including Content, Graphics and Data Base which the Customer warrants that it is authorized to publish and guarantees that it does not violate any law and that it holds all permits or licenses which may be necessary to publish on the Internet. If the Customer does not supply the above-mentioned information within the prescribed time frame, Mexxus reserves the right to charge the Customer all amounts due hereunder. Mexxus will not be held liable for any consequential losses, damages or claims therefore asserted by the Customer due to delays caused by the Customer or arising because of matters of force majeure or any other cause beyond its control.
The Customer also guarantees and warrants the truth of all factual assertions and implications there from in the Website Project inserted hereunder and that they are entitled to use any picture, graphic or illustration, or to insert a hypertext link(s) to any other website, or advertise the business profession, service, product, Trademark, or Trade name appearing or described in the said Website Project as well as holding all the rights to use the trademarks or commercial names included in the website and that this does not contravene any provision, law or statute, including the Trade-Marks Act, the Copyright Act and any other law or statute relating to intellectual property. The Customer agrees to indemnify and hold Mexxus harmless from and against any and all liabilities, damages, award, settlements, losses, claims and expenses, including attorney fees and costs of investigation due to (i) any claim by a third party relating to the Content, including infringement of any third party’s intellectual property rights; (ii) claims for misleading advertising related to Customer product warranties or performance; and (iii) any other actions of Customer which give rise to any other liability at law. Furthermore, for Content created by the Customer or one of its representatives, the Customer acknowledges that Mexxus shall not bear any liability with regards to the content, graphical norms or physical appearance of the Website Project.
The Customer furthermore authorises Mexxus to perform a full pre-credit investigation on his or her company.
Technical Decisions – All technical decisions regarding design and programming techniques, programming language, programming technologies, programming strategy, programming logic, programming flow, graphical design, font selection, database setup, database structure, database relationships, visual appearance (textbox, buttons, placements, etc) or any other technical decision designed to meet the Customer’s needs is the exclusive prerogative of Mexxus and Mexxus staff and not that of the Customer.
Terms of Payment – The Customer agrees to pay Mexxus for all charges plus applicable taxes on all invoices noted on the face of this Agreement and for all taxes which may be levied upon this service. If there is a dispute about the charges, the Customer shall notify Mexxus within 10 days of receiving the invoice. All amounts on all invoices are due prior to any work prescribed on each respective invoice. If an invoice is not completely paid by the Customer, Mexxus is not responsible to do any work prescribed on the invoice. If at any time, payments are in arrears for more than (30) days, Mexxus reserves the right to purge the Website Project from the Internet and discontinue all services without notice.
Travel Expenses – Travel expenses for necessary meetings and approved journeys undertaken by Mexxus and associates will be charged to the client at cost.
Late Charges – An interest rate of 2.25% per month applies to any amount remaining unpaid 1 month following receipt of all invoices listed on the face of this contract and all future invoices. If the past due account remains unpaid, and is determined by Mexxus to require further collection action, an administration fee of $150 will be added to the balance owing.
NSF Cheques – An administration fee of $25.00 is automatically charged to the Customer for NSF Cheques received from the Customer for all invoices listed on the face of this contract and all future invoices. The $25.00 administration fee is due upon receipt and is subject to Late Charges. If at any time, a cheque is returned to Mexxus NSF, Mexxus reserves the right to suspend the Customer’s website without notice by removing all pages from the internet and publishing generic pages in its place indicating the fact that the hosting contract is expired or temporarily suspended. The new wording and layout is at Mexxus’s sole discretion and may not be changed in any way by the Customer or via the Customer’s request
No Guarantee of Success – The Customer acknowledges that this Agreement provides no guarantee with regard to the success, derived benefits, response or of the number of visitors, display problems due to browser compatibility or browser configurations or any other computer compatibility or computer configuration issues to their Website Hosted by Mexxus or hosted elsewhere during the term of the Agreement or beyond the term of the Agreement. Mexxus does not guarantee website uptime and is not responsible for damages, or deletion of website files, databases, or any other website resources which may make the site partially or fully inoperable
No Guarantee of Deadlines – Mexxus cannot guarantee the delivery of any website project to the Customer’s satisfaction within any prescribed timeline. However all projects will be completed within a reasonable timeframe and will be deemed complete when Mexxus has completed all items on the relevant invoice according to Mexxus staff’s interpretation or upon launching the website on the internet.
Mockups – The process for the creation of visuals, such as graphics and page designs, consists of Mexxus providing mockups and asking for feedback from the Client; the feedback is then used to produce another draft. We estimate only 3 rounds of revisions are necessary per layout. Excessive revisions will incur additional cost. When all mockups submitted to the Client have been reviewed and approved by the Client, we have a significant project milestone called ‘Design Signoff’. At this stage all design work is frozen, and the approved mockups are handed over to the developers to have the web pages created. When the web pages have been coded only the content areas on the web pages will be able to change (areas on each page where the Client will supply final text and imagery). Any design changes requested to the mockups after Design Signoff has been granted by Client will be charged at $85/hour. Mexxus assumes that Client will provide input and approvals on content and design mockups within 3 business days of receiving materials to review. Client acknowledges that if this time frame is exceeded, the schedule will be adjusted accordingly.
Site Content – Client will provide all logo artwork, photography, sample content and other requested collateral in electronic format. Acceptable formats for content and images include, but are not limited to: Microsoft Word, Adobe Acrobat PDF, .gif, .jpg, .tiff, .psd, .eps. All text and images provided will be e-mailed to Mexxus in good condition and in a quality appropriate for the Internet. Any content or other information submitted to Mexxus is considered final information and any modifications made to that information are billable at $85/hour. If additional copywriting and/or editing is required, this service will be provided to Client on an hourly basis. Client is solely responsible for the editorial content of the material included on its website and is responsible to populate the text, photos, etc. into the Content Management System (CMS) – if provided. Mexxus will populate enough items in the system to test functionality. Any typing of text or scanning of images will be billable at $85/hour to the Client.
Delivery and Testing – All programming will meet the standards of the current version of Internet Explorer. The website once coding is complete will be made available to the Client on Mexxus’s internal servers for ‘User Acceptance Testing’ (UAT) for a period of 5 days in which all feedback, bugs and fixes must be reported to Mexxus to be fixed. At the end of this period the website must be put live. The Client can request Mexxus to put the website live before the end of this period if desired.
Termination, Cancellation & Deposits – Deposits are non refundable. Client acknowledges that Mexxus may terminate this agreement, and retain Customer’s non-refundable deposit if Customer fails to provide all materials required for the completion of the web site within 30 days of the contract date. Should Client fail to initiate the creation process by not responding to requests for information, or for the completion of the Client Survey document within thirty (30) days, Client’s account will be considered inactive and the Project will terminate. No refunds or credits will be given. If Client cancels the project after website has been coded and released for User Acceptance Testing (UAT): 100% of Project Total must be paid.
Warranty period – Any errors made by Mexxus reported within the UAT period prior to going live will be fixed free of charge. Any bugs or errors reported within 15 days after the website goes live on the Internet will be fixed without any fee. Any bugs or errors reported after the website has been live on the Internet for 15 days will be billed on an hourly basis at $85/hour.
Governing law, jurisdiction and venue – This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the Province of Quebec, Canada and any action or proceeding arising out of or related to this Agreement shall be brought only in the courts of such jurisdiction. The parties hereby consent to such jurisdiction and venue
Ownership of Intellectual Property – The website is and will remain the intellectual property of Mexxus until it is paid IN FULL by the Customer. After FULL payment of this project, the Intellectual property is automatically transferred to the Customer. Any attempt to leach, copy, or take code from Mexxus prior to FULL payment will be considered theft contrary to sections 322-380 of the CRIMINAL CODE OF CANADA
File Transfer Fee – The Customer may exercise the option of acquiring a copy of the Master Photoshop Graphics or Website and all its contents on his or her personal media for $250.
Indemnity – Mexxus is not liable for damages caused by security loopholes such as usernames and passwords, malicious software, hacking, denial of service attacks, or any other malicious attacks. Mexxus is not liable for third party theft of intellectual property or sensitive information such as credit card information or any resulting damages. Any work required to repair damages, or security loopholes is not the responsibility of Mexxus. Mexxus is not liable for damages resulting from spelling mistakes, poor grammar, sentence structure, paragraph structure, legibility, literary logic, or any other issue arising from the way content is written or displayed. Mexxus is not liable for damages caused by offensive images, poor quality images, lack of images, excessive images, or any other issue arising from image-related problems.
Web Hosting Terms of Service
This Web Hosting Agreement is between Mexxus and the person/persons who use our website hosting and domain service. Please read carefully to ensure you understand our terms before purchasing any of our products or services.
Mexxus agrees to provide the services stated for the price agreed at any given time. We do not miss lead customers with hidden costs unlike many other web hosting companies.
All customers are responsible for monitoring their storage space and bandwidth transfer each month. Customers who go over the limit of their account will be sent an email with the option to either upgrade their account or reduce storage. If customers continue to go over we will do everything possible to fix the problem. We do hold the right to suspend accounts for continuous problems.
Renewal notices are emailed twenty five days before the actual renew date in your account. If your using a credit card you will not have to worry about manual payments. All accounts are set up on a pre-pay basis. If payment is not received within 5 days it will be subject to late fees and suspension. Mexxus reserves the right to change prices at any time, unless other terms have been agreed upon. Any account not brought current within a week (7 days) of e-mail notice or exceeding this time frame in any way is subject to suspension. YOU are responsible for all fees owed on the account from the time it was established to the time that YOU notify Mexxus to request for termination of services by email to email@example.com. YOUR particular billing cycle corresponds to the contract length that was initially chosen at signup. YOUR account will automatically renew at this length unless cancelled 30 days before hand. There is no fee for cancelled accounts that have been paid for yearly. If you cancel an account on any billing cycle Mexxus can not refund any payments made.
All annual payments are non refundable once the money back guarantee has passed. The only time your annual plan will end is if your account does not comply with our terms of service/acceptable usage policy. Both monthly and annual payments are non-refundable if your account does not follow our terms of service/acceptable usage policy.
Cancellation and Early Termination
Customers must acknowledge that the amount of the services bought is based on customers agreement to pay the fee for the initial term or renewal term.
Any attempt to undermine or cause harm to a server or customer of Mexxus is strictly prohibited.
Mexxus will strongly react to any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include ‘Internet scamming’ (tricking other people into releasing their passwords), password theft, security hole scanning, etc.
Any unauthorized use of accounts or computers by YOU, whether or not the attacked account or computer belongs to Mexxus, will result in action against YOU. Possible actions include warnings, account suspension or cancelation, as well as civil or criminal legal action, depending on the seriousness of the attack.
IMPORTANT NOTE – Mexxus has the right to discontinue service, or deny access to anyone who violates our policies or the terms and conditions shown below WITHOUT WARNING or PRIOR NOTICE. No refunds of fees paid will be made if account termination is due to violation of the terms outlined below.
YOU may not run IRC, bots or clients on shared servers. Unacceptable uses also include, but are NOT limited to: Bulk emailing, unsolicited emailing, newsgroup spamming, upload scripts (Rappidleach), pornographic content, illegal content, copyright infringement, trademark infringement, warez sites (including links to/from), cracks, software serial numbers, proxy-relaying, link farming (the act of or by use of scripts), link grinding, link-only sites, spamdexing, FFA (Free-For-All) and/or anything else determined by Mexxus to be unacceptable use of our services including abuse of server resources.
WEB APPLICATIONS and WEB ACCESSIBLE SCRIPTS – All web applications that are out-of-date and actively being exploited will be shut down immediately without prior notice. YOU are responsible for and should evaluate YOUR web-based applications and scripts on a regular basis to ensure their security and orderliness.
Shared hosting accounts may also be terminated if it includes the following content or have links to the following content: Providing material that is grossly offensive to the Web community including blatant expressions of bigotry, racism, hatred, or profanity; promoting or providing instructional information about illegal activities; promoting physical harm or injury against any group or individual; displaying material containing obscene nudity or pornographic material; displaying material that exploits children under 18-years of age; acts of copyright infringement including offering pirated computer programs or links to such programs; information used to circumvent manufacturer-installed copy-protect devices, including serial or registration numbers for software programs, or any type of cracker utilities.
Disk Space Abuse
Mexxus will be the sole arbiter as to what constitutes a violation of this provision. You are reponsable for monitoring your disk space usage.
Disk space to be allocated for the use of website files and email storage only. This space is prohibited for the use of storing data files not related to the website.
If you need extra disk space contact one of our staff and they will be happy to help out.
The intention of Mexxus is to provide a large bandwidth to transfer web documents, and not an offsite storage area for electronic files. If YOU violate this condition, YOU will be notified and given 48 hours to remedy the problem. Failure to do so will result in YOU being billed for the overages.
Traffic will go unmonitored until YOU reach the amount of quota allocated to YOUR specific PLAN. Mexxus will be the sole arbiter as to what constitutes a violation of this provision.
Customers agree to use our services under the Acceptable Usage Policy which is here by incorporated with this agreement. Customers agree that Mexxus hold the right to change their AUP at any time to meet web hosting standards and laws. Amendments to the AUP are effective on the earlier of Mexxus notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Mexxus reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Mexxus and Customer regarding the interpretation of the AUP, Mexxus commercially reasonable interpretation of the AUP shall govern.
Customer represents and warrants to Mexxus that the information he, she or it has provided and will provide to Mexxus for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Mexxus that he or she is at least 18 years of age. Mexxus may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
UNSOLICITED EMAIL & SPAMMING
Unsolicited commercial advertisements (‘SPAM’) are not allowed in e-mail, and will likely result in account cancelation. Mexxus takes a zero-tolerance approach to SPAM originating from its servers or for spam advertising of domains hosted within our network. If found, YOUR account may be deleted.
The following activities are not allowed: SPAM, which includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts (such messages may only be sent to those who have explicitly requested it from your domain); Forging, altering or removing electronic mail headers – any domain sending stealth spam will be terminated without warning and without refund. Sending numerous copies of the same or substantially similar message with the intent to disrupt a server or account (‘mail bombing’); Spamming Newsgroups: Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account cancelation. See the newsgroup or mailing list’s charter for whether advertising is allowed or not. Sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such; Mail may not be used to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail, YOU must not send that person any further messages.
NOTE – If YOU use the services of another provider to promote a website hosted by or through Mexxus (‘spamvertising’), then the provisions of the above policy shall apply as if the SPAM were sent through our servers.
99.99% UPTIME GUARANTEE
(1.) COVERAGE – This 99.99% uptime guarantee applies to any Customer in good financial standing with Mexxus at the time of a service outage.
(2.) SERVICE LEVEL AGREEMENT (‘SLA’) & SPECIFICATIONS – Mexxus endeavors to have the content of YOUR website available for http access by any party in the world 99.99% of the time. Network downtime (‘unavailability’) is defined as 100% packet loss from Mexxus to its backbone providers. Downtime is measured past 10 minutes after notification of network failure via Mexxus’s online ticketing system. If the ticketing system itself is unreachable, the ticket must be started by calling the Mexxus NOC.
Mexxus’s administrators will determine the end of the downtime by a traceroute to YOUR machine from outside the Mexxus network.
(3a.) SHARED HOSTING CREDITS – In the event that YOUR website is unavailable for less than 100%, Mexxus will credit the following month’s service fee as follows. YOUR credit shall be retroactive and measured in 24 hours a day of a calendar month, with the maximum credit not exceeding 50% of the monthly service charge for the affected month.
– 95% to 99.9% – YOUR account will be credited 10% of your monthly hosting fee
– 90% to 94.9% – YOUR account will be credited 20% of your monthly hosting fee
– 89.9% or below – YOUR account will be credited 50% of your monthly hosting fee (3b.)
Credit shall not be provided to YOU in the event that you have any outage resulting from:
– scheduled maintenance as posted from time to time at Mexxus,
– your behavior or the performance or failure of your equipment, facilities or applications,
– circumstances beyond Mexxus’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services, including DNS propagation, domain name registration/transfer, failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your web site,
– YOU breaking any agreement policy in Mexxus’s ‘Terms & Conditions and AUP’ causing a machine to fail as a result.
TECHNICAL SUPPORT BOUNDARIES
Mexxus provides technical support for YOU that encompasses within our area of expertise only. Such expertise includes assistance, troubleshooting, and debugging of our cPanel control panel interface, servers within our immediate responsibility and any other hosting related issues.
Unlike many hosting companies we do our best to help with scripts, templates and programing languages. However, under no circumstances is Mexxus obligated to help YOU in the installations of new application modules, templates and/or programming languages, nor in providing assistance for any errors produced by any applications that have been modified by YOU previously.
Each shared web hosting account comes with its own CGI-BIN. YOU are free to use any CGI scripts YOU wish, however we reserve the rights to disable any CGI script that effects normal shared server operation without prior notice.
Customer agrees to indemnify and hold harmless Mexxus, Mexxus’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
YOU AGREE TO DEFEND,INDEMNIFY AND HOLD HARMLESS MEXXUS AGAINST LIABILITIES ARISING OF:
(1) ANY INJURY TO PERSON OR PROPERTY CAUSED BY ANY PRODUCTS SOLD OR OTHERWISE DISTRIBUTED IN CONNECTION WITH MEXXUS’S SERVER.
(2) ANY MATERIAL SUPPLIED BY THE CUSTOMER INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY
(3) COPYRIGHT INFRINGEMENT AND
(4) ANY DEFECTIVE PRODUCTS SOLD TO CUSTOMER FROM MEXXUS’S SERVER.
Disclaimer of Warranties
Mexxus does not warrant or represent that the services will be uninterrupted, error free, or completely secure. To the extent permitted by applicable law Mexxus disclaims any and all warranties including the implied warranties or merchantability, fitness for a particular purpose and non-infringement. To the extent permitted by applicable law all services are provided on an “As Is” basis.
Limitation of Damages
Neither party shall be liable to the other for any lost profits or any indirect, special incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of Mexxus and any of its employees, agents or affiliates, under any theory of the law (including breach of contract, tort, strict liability and infringement) shall be a payment of money not to exceed the amount payable by customer for the three months service.
Suspension of Services/Termination
Customer agrees that Mexxus may suspend services to Customer without notice and without liability if: (i) Mexxus reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Mexxus reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Mexxus reasonable reinstatement fee following a suspension of service under this subsection.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Mexxus fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by Mexxus prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon five (5) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Mexxus describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon five (5) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
If you break our terms of service/acceptable usage policy we hold the right to cancel any services. We will never cancel any services without trying our best to resolve the problem with you. However in extreme cases such as an account containing child pornography we hold the right to cancel services without any prior warning. We do not refund any accounts breaking our terms of service/acceptable usage policy. For example if we cancel your hosting account during your first month for breaching copyright, we will not refund you for the first month. This is to prevent people signing up for our services with the intention of breaching our terms.
Request For Customer Information
Customer agrees that Mexxus may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Mexxus believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Back Up Copy
Customer is responsible to maintain a current copy of all content hosted on Mexxus servers.
Request For Restore Of Hosting Package
If a customer should need to request a restore a fee will be enforced.
Changes To Mexxus’s Network
Upgrades and other changes in Mexxus’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. Mexxus reserves the right to change its network in its commercially reasonable discretion, and Mexxus shall not be liable for any resulting harm to Customer.
Notices to Mexxus under the Agreement shall be given via electronic mail to the e-mail address posted for customer support. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
Mexxus shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Mexxus’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of the province of Quebec, exclusive of its choice of law principles, and the laws of Canada, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on Mexxus unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Mexxus’s prior written consent. Mexxus’s approval for assignment is contingent on the assignee meeting Mexxus’s credit approval criteria. Mexxus may assign the Agreement in whole or in part. This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
All files stored on Mexxus’s servers must be legally-owned and be accompanied with a valid license and/or copyright. This include and is not limiting to MP3, AVI, MID, MIDI, MPG, MPEG, MOV, EXE, ISO. Should we discover any unlicensed and/or illegal files within YOUR account, the files will be subjected to deletion.
CANCELLATION OF SERVICE
Mexxus reserves the right to cancel a service at any time. Any violation of policies which results in extra costs billed to YOU.
PROMOTIONAL RATES & SPECIAL OFFERS
Mexxus may offer subsequent promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for YOUR Services. Any such promotions or modifications shall not effect YOUR obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Different promotional fees and special offers may not be combined together.
We have various special promotions that include a domain name. The cost of this domain name is usually covered by the first month�۪s payment. As a result of this our promotions are not refundable and are not covered by our money back guarantee.
INTELLECTUAL PROPERTY RIGHTS
Material accessible to you through Mexxus’s services may be subject to protection under the United States or other copyright laws, or laws protecting trademarks, trade secrets and proprietary information. Except when expressly permitted by the owner of such rights, YOU must not use Mexxus or its servers and network in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material that you access or receive through the Mexxus network. If YOU use a domain name in connection with Mexxus or similar service, YOU must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.
Customers may not use the Mexxus network with an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for YOU, logging into a server or account YOU are 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. YOU may not attempt to interfere or deny service 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. Mexxus will cooperate fully with investigations for violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
YOU will be solely responsible for the development, operation and maintenance of YOUR online store and products along with all content and materials appearing online or on YOUR products, including without limitation:
(a.) the accuracy and appropriateness of content and materials appearing within the store or related to YOUR products,
(b.) ensuring that the content and materials appearing within the store or related to YOUR products do not violate or infringe upon the rights of any third party, and
(c.) ensuring that the content and materials appearing within the store or related to YOUR products are not libelous or otherwise illegal. YOU will be solely responsible for the final calculation and application of shipping and sales tax. YOU will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising there from.
YOU are also responsible for the security of any customer credit card numbers and related customer information YOU may access as a result of conducting electronic commerce transactions through YOUR website. YOU will keep all such information confidential and will use the same degree of care and security as YOU use with your confidential information.
STATIC & DYNAMIC CONTENT CACHING
(i) grant to Mexxus a license to cache the entirety of YOUR website, including content supplied by third parties, hosted by Mexxus under this Agreement and
(ii) agree that such caching is not an infringement of any of YOUR intellectual property rights or any third party’s intellectual property rights.
IP ADDRESS OWNERSHIP
Mexxus shall maintain and control ownership of all IP numbers and addresses that may be assigned to YOU by Mexxus. Mexxus reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
DOMAIN NAME REGISTRATION
YOU agree to pay Mexxus prior to the effectiveness of the desired domain name registration, the then-current amount set forth in the Mexxus price schedule for the initial registration of the domain name and, should YOU choose to renew the registration, subsequent renewals of the registration. All fees are non-refundable, in whole or in part, even if YOUR domain name registration is suspended, canceled or transferred prior to the end of YOUR then current registration term. Mexxus reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. YOUR requested domain name will not be registered unless and until we receive actual payment of the registration fee, and have confirmed YOUR registration in an email from Mexxus to the email address indicated in YOUR registration application. In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by Mexxus) in connection with the payments of the registration fee for YOUR domain name registration, YOU agrees and acknowledges that the domain name registration shall be transferred to Mexxus as the paying entity for that registration to the registry and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. Mexxus will reinstate YOUR domain name registration solely at Mexxus’s discretion, and subject to our receipt of the initial registration or renewal fee and our then-current reinstatement fee.
Transfer domain registrar to Mexxus
YOU agree to pay Mexxus prior to the effectiveness of the desired domain name transfer request, the then-current amount set forth in the Mexxus price schedule for the initial transfer request of the domain name. YOU agree and acknowledge that the domain name transfer will fail, and all fees are non-refundable, for the following reasons, but not limited to:
– No response from the Registered Name Holder or Administrative Contact
– Domain name in Registrar Lock Status
– Domain name registration period time expires or other constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer
Mexxus reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. YOUR requested domain name will not be registered unless and until we receive actual payment of the registration fee, and have confirmed YOUR registration in an email from Mexxus to the email address indicated in YOUR registration application. In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by Mexxus) in connection with the payments of the registration fee for YOUR domain name registration, YOU agrees and acknowledges that the domain name registration shall be transferred to Mexxus as the paying entity for that registration to the registry and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. Mexxus will reinstate YOUR domain name registration solely at Mexxus discretion, and subject to our receipt of the initial registration or renewal fee and our then-current reinstatement fee.
Transfer domain away from Mexxus
Mexxus reserves all rights, without limitation, to reject the domain name transfer request for the following reasons, but not limited to:
– No response from the Registered Name Holder or Administrative Contact
– Domain name in Registrar Lock Status and there is no request from Registered Name Holder or Administrative Contact for the status change
– Domain name registration period time will be expiring in less than 60 days or other constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer
YOU agree and acknowledge that the failure or success of a domain name transfer will be his/her sole responsibility, and Mexxus will not be held liable for the failure of a domain name transfer for any reason.
Domain registrations are non-refundable. Please do not purchase the domain name until you are certain that it is exactly what you would like to buy.
Domain Auth code requests can take up to 7 business days to be provided. Auth codes can be provided within urgency 24 hour period for $85.
Mexxus reserves the right to refuse service to anyone. YOU may only use Mexxus server for lawful purposes and our services may not be used for illegal purposes or in support of illegal activities. We reserve the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing. If anything is not legal in Canada and USA, it is not permitted to reside on our servers. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes but not limiting material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Examples of non-acceptable content or links: ‘Pirated Warez’, OGG, AVI, MPEG, ISO, ‘Hacker programs or archives’, ‘Copyrighted Digital Movie Copies (DIVX)’ and ‘Unlicensed MP3’. The designation of any materials as such described above is left entirely to the discretion of Mexxus management.
If illegal content or usage is found, the account will be suspended and/or terminated. YOU agree that Mexxus may disclose any and all YOUR information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification.
Regardless of the place of signing this agreement, YOU agree that for purposes of venue this contract is entered in Quebec, Canada, and any dispute will be litigated or arbitrated in Quebec, Canada. Defendants further waive all objections to venue and acknowledge that venue in any such litigation will be held in Quebec courts. IN NO EVENT SHALL Mexxus’S MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($500.00) DOLLARS.
Mexxus follows the strict guidelines of our customer privacy statement. Please make sure you understand this statement fully.
Acceptable usage policy
This AUP governs the use of Mexxus’s web hosting service. Violation of this AUP may result in suspension or termination of your service. In the event of a dispute between you and My Company regarding the interpretation of this AUP, Mexxus’s interpretation, in its reasonable commercial judgment, shall govern.
The following is the entire Acceptable User Policy (‘AUP’) agreement between Mexxus and the personal or corporate account holder. Mexxus provides World Wide Web Hosting, web design and script installation. Mexxus has certain legal and ethical responsibilities consisting with the use of its servers and equipment involved in these services. Mexxus’s general policy is to act as a provider of Internet presence. Mexxus reserves the rights to suspend or cancel a customer’s access to any or all services provided by Mexxus when we decide that the account has been inappropriately used.
What is Appropriate Usage?
Mexxus is designed to serve the web hosting needs of small, independently owned and operated businesses in a single country. It is not appropriate to use our services to support large enterprises or internationally based businesses with a sustained demand that places undue burden on our systems or negatively impacts use by small, independently owned and operated businesses.
Mexxus is a shared web hosting service, which means that a number of customers’ web sites and other email or storage services are hosted from the same server. Mexxus uses abuse controls to help ensure that use of our services does not adversely affect the performance of our system or other customers’ sites. It is not appropriate to use an account primarily as an online storage space or for archiving electronic files.
If you use your services consistently with the terms of Service and these paragraphs, your site can grow as large as necessary to meet your small business needs, but to ensure a great experience for all, we will place some constraints on how fast you can grow. The vast majority of our customers’ sites grow at rates well within our rules, but our abuse controls may cause a brief delay while we evaluate if expansion is appropriate for your particular plan.
Mexxus Customers may not initiate the following (below), if any customer does Mexxus may terminate the account with no refund. Depending on the situation there will/won’t be warnings sent.
a) Use 25% or more of system CPU resources for longer then 90 seconds or 1% of the servers CPU resources for longer than 5 minutes. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
b) Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home.
c) Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed.
d) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons.
e) Run any software that interfaces with an IRC (Internet Relay Chat) network.
f) Run any file sharing, bit torrent or other P2P network services, client or server software.
g) Run any gaming servers such as counter-strike, half-life, battlefield 1492 etc
In most cases, if you use our services consistently with our terms of Service, visitors to your web site will be able to download and view as much content from your site as they like. However, in certain circumstances, our server processing power, server memory, or abuse controls could limit downloads from your site. You will always be able to use as much bandwidth as your account has. For example our Business Plan comes with 150GB bandwidth which is a huge amount, all of this 150GB can be used. Bandwidth is also reset every month.
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.
You do not have to worry about hitting a storage limit if you use our services consistently with the terms of Service and our acceptable usage policy. Mexxus can increase your space along with your appropriate small business needs, but our abuse controls may impact the rate of growth or your folder size, and there may be a short delay while we assess your usage. In some cases, creating additional folders or subfolders will help ensure that the system works well for everyone. You will always be allowed to use as much disk space is applied to your account.
You may have noticed some of our accounts come with unlimited email accounts, sub-domains, FTP accounts and in some cases domains. This is subject to how much disk space your account has. So you can create as many emails, sub-domains etc as you want as long as it’s within your disk space limit.
You may not publish or transmit via Mexxus’s service any content that Mexxus reasonably believes:
a) constitutes child pornography;
b) constitutes pornography;
c) is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
d) is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
e) is defamatory or violates a person’s privacy;
f) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
g) improperly exposes trade secrets or other confidential or proprietary information of another person;
h) is intended to assist others in defeating technical copyright protections;
i) clearly infringes on another person’s trade or service mark, patent, or other property right;
j) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
k) is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to My Company;
l) is otherwise malicious, fraudulent, or may result in retaliation against My Company by offended viewers;
Mexxus does not accept material such as:
a) Proxy, Warez, Escrow, High Yield Investment Programs (HYIP), illegal Gambling and Lottery sites.
b )Content ‘published or transmitted’ via My Company’s service includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by Mexxus.
* Mexxus can terminate service for any of the above reasons and it’s at Mexxus’s sole discretion to issue a refund
You must take reasonable security precautions. You must protect the confidentiality of your password, and you should change your password periodically.
Bulk Comercial Email
Bulk commercial email, mailing lists and email reflectors are allowed on Mexxus’s servers, we do however allow a maximum of 200 emails per hour per account. For any emails sent from your Mexxus account you must adhere to the following rules:
- a) Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
b) Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
c) You may not obscure the source of your e-mail in any manner.
d) You otherwise comply with the CAN SPAM Act and other applicable law.
These policies apply to messages sent using your Mexxus service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via your My Company service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers.
You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it. You must comply with the rules of any other network you access or participate in using your Mexxus’s services.
Material Protected By Copyright
You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:
a) you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner.
b) you are otherwise permitted by established United States copyright law to copy the work in that manner.
Mexxus will terminate the service of repeat copyright infringers.
You must have valid and current information on file with your domain name registrar for any domain hosted on the Mexxus network.
Mexxus is under no duty, and does not by this AUP undertake a duty, to monitor or police our customers’ activities and disclaims any responsibility for any misuse of the Mexxus network.
You may not engage in illegal, abusive, or irresponsible behavior, including:
- a) 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 (including those belonging to Mexxus and its customers) without express authorization of the owner of the system or network;
b) monitoring data or traffic on any network or system without the authorization of the owner of the system or network;
c) Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
d) Use of an Internet account or computer without the owner’s authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning;
e) Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; or
f) Any conduct that is likely to result in retaliation against the Mexxus network.
g) Use of Mexxus’s network in a way that unreasonably interferes with Mexxus’s other customers use of the network
Newsgroup, Chat Forums, Other Networks
You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.