Subscriber Service Agreement
TERMS AND CONDITIONS OF SERVICE
For the purpose of this agreement:
Affiliate means a corporation controlled by or under common control with NetTrac®.
Customer means a Person who has:
- requested or been furnished with the Service or other communications services from or by NetTrac®, an Affiliate or
- obtained installation, of any other form of service or equipment from NetTrac®, an affiliate or their respective employees, agents, dealers subcontractors or suppliers, and includes a User who has signed the preceding page of this form if provided or has agreed to our terms of service by indicating such by completing our online sales forms and agreeing to the terms and conditions clause.
Person includes a partnership, firm, body corporate or politic, government or department or agency thereof and the legal representatives of such person.
Service means data transmission and communication service furnished by NetTrac®.
User means a Person who uses the service or other communications services furnished by NetTrac® or their respective employees, agents, dealers, subcontractors or suppliers whether or not that Person is a Customer.
- The Customer, upon using any of NetTrac® services hereby agrees to acceptance of this agreement and it shall constitute a subscription by the Customer for the service. This may include Hosting, Programming, Email service or any other type of service the end user may use as provided.
- The Customer warrants and agrees that it is and will be the end user of the Service and data access privileges.
- The customer agrees that where it indicates that the service price requires a one year or "annual" contract that this shall constitute a binding agreement between NetTrac and the Subscriber. The Subscriber agees that they shall be responsible for any amount outstanding on a contract if they choose to terminate early. Use of the subscribed service constitutes agreement by the Subscriber/Customer.
- As such, the customer hereby consents to receive any emails from NetTrac®, its affiliates or assigns, regarding service, maintenance notices, news and information about NetTrac® products, security advisories, and any other type of communication that NetTrac® deems, could be of benefit to the customer.
RULES AND REGULATIONS
The Customer agrees to abide by all the rules and regulations governing the use of Service that may be issued or adopted by NetTrac Communications Inc.® from time to time and furnished to the Customer either verbally or in writing, relating to the provision of the Service. This is understood to mean all coding best practices, network congestion and nuisance issues, security best practices, spamming or otherwise affecting the ability of any customer to use the provided service or where any security risk is introduced to the service either inadvertently or intentionally. The customer shall not use any NetTrac® storage device to store or disseminate Illegal or Copyrighted material. In addition to this, where it appears that the customer has engaged in trademark or trade name infringement NetTrac® reserves the right to remove the material or website in question. Further to this the Customer agrees that any costs arising from legal action brought against NetTrac® as a result of such infringement shall be the sole responsibility of the Customer and the Customer will save harmless NetTrac® and its assigns from any legal action resulting from such infringement.
NetTrac® reserves the right to immediately block the traffic that does not fall with in the guidelines above or constitutes spamming, extraordinary traffic or disk usage, or constitutes in our sole opinion, objectionable content or generally fails to meet acceptable use of our services. Storage Services are for Web Site related content and content that is related to the operation of your business or enterprise. (99% of NetTrac® customers fall within disk and bandwidth that lie within ranges that have close proximity to each other. Those that statistically fall outside of these ranges are subject to surcharges or suspension of services.) Email accounts are subject to a limit of 200 MB per account however, while there are no quotas set to be consistent with our unlimited use policy, we reserve the right to suspend service to those who, in our sole discretion constitute abuse of our services. The images below show how 98% of our users fall within our acceptable bandwidth and storage use guidelines. Those that fall into the red "outlying" areas are susceptible to any of the above remedies. These policies shall apply to all type of hosting whether shared or dedicated.
Mail Storage. NetTrac® mail servers are mail transport servers only and are not intended to store email. We assume no liability for large amounts of email left on the servers. It is the user's responsibility to maintain the mail account and download all mail from the severs as often as required to keep their email data secure. Note that all email accounts are allotted free storage of 100MB and storage over this limit is subject to additional charges.
Website Storage. NetTrac® Website Data Storage is sold as is and rates and conditions may be subject to change at anytime.
HardWare Resources. If your application uses inordinate amounts of cpu or memory resources NetTrac® reserves the right to suspend service to the offending application or to charge a surcharge for the service provided. It is expected that all media shall be optimized as much as possible for Internet use. NetTrac® reserves the right to restrict access to websites that in our estimation are using more resources than they should due to overly large media files used for everyday web use.
Governing Law The Customer agrees that they shall be solely responsible for the content of their website and subdirectories and shall abide by all laws and regulations as stipulated in the Province of Ontario Canada and the CRTC and the laws of Canada.
RATES AND CHARGES
Note: NetTrac Communications Inc.® reserves the right to change prices at any time without prior notice.
- The customer agrees to pay NetTrac® for the use of the service at the time and the amount specified herein.
- The customer agrees to pay NetTrac® for any message toll charges or other network service charges incurred by the customer in using the service to make long distance calls or to access the services of other communications or telecommunications carriers, other services or other information providers who charge a tariff or fee for their products and or services.
- All prepurchased usage and setup fees are non-refundable.
- Unused connection time during any monthly period cannot be transferred to any other months.
- NetTrac® reserves the right to limit access to data or account management where the customer's account is in delinquent status. The customer acknowledges that any account that is more than 15 days past due is considered delinquent.
- NetTrac® reserves the right to charge an NSF FEE of $50.00 on NSF cheques and $35.00 on failed credit card payments on any service subscribed to.
RATES AND CHARGES FOR PROGRAMMING SUPPORT
- NetTrac will reserve the right to charge for continued requests for support for code changes to assist developers. The billing rate for this support is $50.00CAD per hour and 1 hour is the minimum charge. While we want every developer to have success for their clients we can not continually provide programming support without billing. In addtion to this we reserve the right for such support to be paid for in advance by banking hours in our time card system.
CHANGES IN RATES AND OTHER TERMS
In the case of a Term Plan, NetTrac® may, upon notice to the Customer directed to the address on the previous page herein change or modify any rates, charges or other fees in connection with the Service including the rates for connection time and monthly service charges. In the case of any other NetTrac® Price Plan, NetTrac® reserves the right to upon notice to the Customer directed to the address on the previous page herein, change or modify any of its rates, charges or other fees and any other terms and conditions applicable in connection with the Service. Such changed or modified terms and conditions shall be deemed to be contained herein.
LIMITATION OF LIABILITY
NetTrac® does not warrant:
- UNINTERRUPTED WORKING OF THE SERVICE OR OTHER COMMUNICATIONS TRANSMISSIONS SERVICES, EQUIPMENT OR SOFTWARE PROVIDED ,RENTED OR SOLD BY NetTrac®, ANY OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, AGENT OR DEALERS;
- UNINTERRUPTED WORKING OF THE TRANSMISSION SERVICES OR EQUIPMENT OF ANY OTHER COMMUNICATIONS OR TELEPHONE COMPANY, CARRIER OR SYSTEM WHOSE SERVICES OR EQUIPMENT ARE UTILIZED BY NetTrac®, ANY OF ITS AFFILIATES OR BY ANY CUSTOMER OR USER IN CONNECTION WITH THE SERVICE; OR
- THE PRIVACY OF ANY COMMUNICATIONS RELYING IN WHOLE OR IN PART ON THE SERVICE OR OTHER COMMUNICATION TRANSMISSION SERVICE OR EQUIPMENT PROVIDED, RENTED OR SOLD BY NetTrac® , ANY OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR DEALERS ON THE TRANSMISSION SERVICES OR EQUIPMENT OF ANY OTHER TELECOMMUNICATIONS OR TELEPHONE COMPANY, CARRIER OR SYSTEM WHOSE SERVICES OR EQUIPMENT ARE UTILIZED BY NetTrac®, ANY OF IT AFFILIATES OR BY ANY CUSTOMER OR USER IN CONNECTION WITH THE SERVICE; AND NO SUCH WARRANTY OR CONDITION WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, SHALL FORM A TERM OR CONDITION UPON AND UNDER WHICH NetTrac®, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR DEALERS OFFER SUCH TRANSMISSION SERVICE OR EQUIPMENT TO ANY CUSTOMER, USER OR ANY OTHER PERSON.
- NetTrac® ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS DEALERS AND SUBCONTRACTORS (IT BEING ACKNOWLEDGED BY EACH OF THE PARTIES THAT FOR THE PURPOSES OF THIS PARAGRAPH 6 AND PARAGRAPH 12 BELOW ONLY NetTrac® IS CONTRACTING ON ITS OWN BEHALF AND AS AGENT ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DEALERS AND SUBCONTRACTORS) SHALL NOT BE LIABLE TO ANY CUSTOMER, USER OR ANY OTHER PERSON FOR ANY DAMAGES OR LOSS WHATSOEVER (INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR DAMAGE TO OR LOSS OF PROPERTY, LOSS OF EARNINGS, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF FINANCIAL SUPPORT, LOSS OF FAMILY, PERSONAL INJURY, MENTAL SUFFERING OR LOSS OF LIFE), HOWSOEVER ARISING OR RESULTING OUT OF THE PROVISION OR THE USE OF OR IN CONNECTION WITH THE SERVICE OR TELECOMMUNICATIONS TRANSMISSION SERVICE OR OUT OF THE USE OR INSTALLATION OF EQUIPMENT OR SOFTWARE PROIDED, RENTED, SOLD OR INSTALLED BY NetTrac®, ANY OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, AGENTS DEALERS OR SUBCONTRACTORS INCLUDING, WITHOUT LIMITATION FROM: DEFECTS, MALFUNCTIONS OR COMPLETE BREAKDOWNS IN TRANSMISSION EQUIPMENT OR FACILITIES; ELECTRICAL SHOCKS, BURNS, FIRES OR EXPLOSION CAUSED BY MALFUNCTION TRANSMISSION EQUIPMENT OR FACILITIES; MISTAKES, OMISSIONS INTERRUPTION, DELAYS, ERRORS, DEFECTS OR COMPLETE BREAKDOWN IN TRANSMISSION; INCORRECT INSTALLATION OR OPERATION OF TRANSMISSION EQUIPMENT OR FACILITIES; OR FROM NEGLIGENT, TORTUOUS OR DELICTUAL CONDUCT OF NetTrac®, ANY OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, AGENTS, DEALERS, SUBCONTRACTORS, SUPPLIERS OR MANUFACTURES, OR ANY OTHER ACT OR OMISSION WHICH MIGHT GIVE RISE TO A CIVIL CAUSE OF ACTION.
IF AN INTERRUPTION OR COMPLETE FAILURE OF NetTrac® OR AN AFFILIATE'S TRANSMISSION SERVICES SHALL OCCUR THAT RESULTS IN AN INTERRUPTION OR COMPLETE FAILURE OF THE SERVICE OR OTHER TELECOMMUNICATIONS TRANSMISSION SERVICE OR OTHER TELECOMMUNICATIONS TRANSMISSION SERVICE THAT NetTrac® OR AN AFFILIATE PROVIDES TO THE CUSTOMER, NetTrac® (OR ITS AFFILIATE) SHALL:
- IN THE CASE OF SUCH AN INTERRUPTION TO OR FAILURE OF TRANSMISSION SERVICE LASTING 24 HOURS OR MORE FROM THE TIME NetTrac® IS ADVISED OF THEINTERRUPTION OR FAILURE, MAKE A REFUND OF THE CHARGED PROPORTIONATE TO THE LENGTH OF THE INTERRUPTION OR FAILURE OF SERVICE; AND
- IN THE CASE OF INTERRUPTION TO OR FAILURE OF MESSAGE SERVICE, MAKE A REFUND OF CHARGES, COMPUTED FROM THE TIME THAT NetTrac® IS ADVISED OF THE INTERRUPTION OR FAILURE;
PROVIDED HOWEVER THEIR UNDERTAKINGS REPRESENT THE SOLE EXTENT OF LIABILITY OF NetTrac®, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICER, EMPLOYEES, AGENTS, DEALERS AND SUBCONTRACTORS.
The limitations of liability set forth in Paragraph 6 hereof apply equally to voice and other telecommunications transmission services provided to the Customer by any other Internet service operator pursuant to any agreement entered into by NetTrac® and such other Internet communications service operator. In this regard, Paragraph 6 is to be read as if every reference to "NetTrac®" includes a reference to such other data communications service operator (it being acknowledged by each of the parties that for the purpose of this paragraph only NetTrac® is contracting as agent on behalf of such other Internet service operator(s)).
Where NetTrac® provides a 99% uptime warrantee, NetTrac® shall only be liable for refundable amounts as stipulated above. NetTrac® shall not be liable for any type of outage or downtime resulting from situations similar to those described in paragraph 6-B above. However, the NetTrac® 30 Day Money back guarantee, shall be honored without question. Should the customer feel that for any reason the NetTrac® service is not suitable for their requirements they shall be entitled to a full refund so long as this refund is requested by completion of the appropriate form within 30 days of their sign up date. Should the customer not make this request within the first 30 days of their subscribed service it shall be deemed they they find the service acceptable to their needs.
RENEWAL AND TERMINATION OF PRICE PLANS OTHER THAN TERM PLANS
If the NetTrac® Price Plan selected by the Customer is not a Term Plan:
- This agreement shall automatically renew for successive monthly terms on the expiry of the initial and each successive terms, unless the Customer or NetTrac® give gives the other notice in writing of termination as hereinafterprovided.
- If the Customer should fail to pay for the use of the Service or fail to pay any other amount owed to NetTrac® at the times and the amounts specified, NetTrac® may terminate provision of the Service(or any portion thereof) to the customer without notice to the Customer.
- This agreement may be terminated by either party hereto upon 30 days notice in writing. In the case of the Customer, notice shall be directed to the address on the previous page herein.
- Notwithstanding the termination hereof, the Customer agrees to pay all charges owing to NetTrac® at the date of the termination in accordance with this agreement.
- NetTrac Communications Inc.® shall not be held liable for any prorata refunds on any website paid for in advance and terminated by the customer prior to contracted anniversary dates.
TERMINATION OF TERM PLAN
- If an event of default (as defined below) occurs under a Term Plan, NetTrac®, in its absolute discretion, may terminate provision of the service to the Customer and this agreement. If the Guide requires the Customer to pay NetTrac® a specified amount as a genuine pre-estimate of liquidated damages in the event of early termination of the agreement by NetTrac® as a result of the occurrence of an event of default, or by the Customer for any reason, the Customer shall pay such amount to NetTrac® within 21 days of written notice to the Customer requiring to do so, directed to the address of the previous page herein. The Customer shall pay any costs incurred by NetTrac® to recover such amount and any other amounts due hereunder, including legal fees.
- For the purposes of a Term Plan, the occurrence of any one of the following shall constitute an event of default:
- failure by the Customer to pay all required charges and taxes to NetTrac® within 5 days of the due date thereof as specified within NetTrac®'s monthly statement to the customer;
- failure of the customer to remain a NetTrac® subscriber for any reason;
- breach of this agreement by the customer;
- the Customer having recourse or being subject to any statue respecting bankruptcy, insolvency or winding up.
The limitations on liability in paragraphs 6, 7 and 12 hereof and the Customer's obligations in subparagraphs 8(D) and 9(A) shall survive the expiry or other termination of this agreement.
The customer acknowledges that there are no other terms and conditions of this agreement except as are expressly contained or deemed to be contained herein by reference.
The agreement shall be governed by and construed in accordance with the laws applicable in the province in which the Customer's designated billing address is situated, as identified on the next page herein.
The Customer acknowledges and agrees that the only warranty applicable to any equipment being purchased pursuant to this agreement is that written limited warranty supplied by the manufacturer or as specified between the Customer and a specified insurance carrier via separate agreement. THERE IS NO WARRANTY OR CONDITION, WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, PROVIDED BY NetTrac® OR ITS AFFILIATES TO THE CUSTOMER WITH RESPECT TO ANY EQUIPMENT PURCHASE PURSUANT TO THIS AGREEMENT.
The Customer may, subject to NetTrac®'s approval, change to another NetTrac® Price Plan.
NetTrac®'s rates and charges may be subject to approval from time to time by the Canadian Radio-Television Commission (the "CRTC"). Notwithstanding anything to the contrary herein contained, NetTrac® may also terminate the provision of Service to the Customer and this agreement without notice to the Customer if the performance of this agreement would result in non-compliance with any applicable statue or regulation or the regulations or requirements of the CRTC or other regulatory authority having jurisdiction.
- Time is of the essence with respect to this agreement and no waiver by NetTrac® of any default shall constitute a waiver of any other default by the Customer or waiver of NetTrac®'s rights. Except as provided as herein, this agreement may not be amended except in writing and shall be binding upon and enure to benefit of the parties hereto, their permitted successors and assigns. Any provision of this agreement which is unforeseeable in any jurisdiction, be ineffective to the extent of such prohibition of enforce ability without invalidating the remaining provisions hereof and any such prohibition of enforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Customer acknowledges and agrees that clerical errors shall not affect the validity of this agreement and NetTrac® shall be entitled to unilaterally correct the same.
- NetTrac® shall not be held liable for any damages whether they be direct or indirect resulting from any exposure to any objectionable material whether such material was seen intentionally or unintentionally. NetTrac Communications Inc.® will not be held liable for any damages resulting from the receipt of any e-mail or e-mail type message or messages regardless of the source of such message or messages.
Note: All prices are in Canadian dollars (CAD).