Terms of Service

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Last Updated Feb 18, 2011

This Terms of Service Agreement (“Terms”) is between Novawave Inc., a company incorporated under the laws of the Province of Nova Scotia and Government of Canada (doing business as, and herein referred to by “NovaHost”) and the person (“Customer”) who completes and signs NovaHost’s service order (“Order”). These Terms govern Customer’s use of NovaHost’s web hosting service.

1. Term
Subject to these Terms, NovaHost agrees to provide the web hosting services described in the Order for the fees stated in the Order. The initial service term shall begin on the date that NovaHost generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the period stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, these Terms shall automatically renew unless NovaHost or Customer provides the other with written notice of non-renewal, as per section 3 (d). The Initial Term and any Renewal Term may be referred to collectively in these Terms as the “Term.”

2. Payments

(a) Fees
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, or annually, as indicated on the Order, beginning on the Service Commencement Date. NovaHost will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 7th day following invoice date.

Payments must be made through our third-party billing provider, which will charge funds in United States dollars, converting currencies if applicable. NovaHost may charge a fee on overdue amounts at 10% of the Order total. NovaHost may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay NovaHost’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay NovaHost’s reasonable costs of collection of overdue amounts.

(b) Fee Increases
NovaHost may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least thirty (30) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

(c) Taxes
To the extent required by Canadian law, NovaHost’s may charge applicable Customers sales tax on the provision of services (such as GST, PST, or HST). If taxes are to be applied, amount will be based on Canadian Dollar equivalent at time of Order invoice generation.

(d) Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer’s Terms to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event NovaHost terminates the Terms for Customer’s breach of the Terms in accordance with Section 7 (c) (Termination), or Customer terminates the service other than in accordance with Section 7 (c) (Termination) for NovaHost’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Terms. Should Customer request termination within thirty (30) days of Initial Term (not any subsequent Renewal Terms), a full refund will be issued. This refund policy does not apply if service is terminated due to a breach of these Terms. Due to the higher risk of abuse, refunds do not apply to VPS offerings.

3. Customer Information
Customer represents and warrants to NovaHost that the information he, she or it has provided and will provide to NovaHost for purposes of establishing and maintaining the service is accurate. NovaHost may rely on the instructions of the person listed as the Primary Customer Contact on the Order, within both the Support Portal and Customer’s cPanel.

4. Indemnification
Customer agrees to indemnify and hold harmless NovaHost, NovaHost’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 attorney’s 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.

5. Service Level Agreement
Should the server on which Customer is provisioned be unavailable, as verified by the third-party at novahost.info, for greater than 99.9% of the previous month, Customer may request a refund or account credit. Credits/refunds must be requested, in the Support Portal, after the last day of the month in question, and up to fifteen (15) days into the current month.

Credits will be the percentage of one month’s payment, where each 0.1% percent downtime less than 99.9% will equal a 10% credit, up to 100% (e.g. 99.5% uptime equals a 50% credit). Downtime during maintenance, scheduled with at least 24 hours’ notice and posted in the Support Portal, will not qualify. For VPS Customers, this applies only to the root node server.

NOVAHOST DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE OTHERWISE ERROR-FREE, OR COMPLETELY SECURE.

6. 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 TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE TERMS TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF NOVAHOST AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF 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 REMAINDER OF SERVICE.

7. Acceptable Use Policy, Suspension, and Termination

(a) Acceptable Use Policy (AUP)

ACCOUNT RESOURCES - You can only use the amount of disk space and bandwidth which are included in your plan. Bandwidth overage will result in an automatic suspension until the next month. If you require additional resources, please contact support.

E-MAIL ACCOUNTS - Any spamming or mass-mailing activity will result in immediate suspension. You are limited to sending 500 emails per hour. If you require an exemption to this limit, please contact support.

CONTENT - The following content is NOT permitted:

  • Hate, violence, racial intolerance, or advocating against any individual, group, or organization
  • Hacking/cracking content
  • Illicit drugs and drug paraphernalia
  • Pornographic content
  • Gambling or casino-related content
  • Any content that promotes illegal activity
  • Content, or links to content that violates copyright, trademark, or other intellectual property laws
  • Public file upload sites (shared hosting only)
  • Proxy scripts (including scripts similar to RapidLeech) (shared hosting only)
  • Copyright infringing torrents or trackers
  • Out-dated or insecure scripts
  • Distribution of Adware, Spyware or other Malware.

SYSTEM USAGE – Account using excessive CPU, RAM, or Disk I/O may be notified, or in severe cases suspended, for the benefit of other users on the server. Please run cron jobs or other scheduled tasks a maximum of once per fifteen (15) minutes (shared hosting only).

(b) Suspension of Service.
Customer agrees that NovaHost may suspend services to Customer without notice and without liability if: (i) NovaHost 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) NovaHost 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 may pay NovaHost’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection, if deemed necessary by NovaHost.

(c) Termination.
The Terms may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if NovaHost fails in a material way to provide the service in accordance with the terms, and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Terms may be terminated by NovaHost prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Terms; (ii) Customer materially violates any other provision of the Terms, including the AUP, and fails to cure the violation within three (3) days of a written notice from NovaHost 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) immediately if the violation is deemed extremely serious. Either party may terminate these Terms upon ten (10) 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 Terms for the extension or readjustment of all or substantially all of its obligations.

8. Backup Copy
Backup copies of Customer content is kept regularly, and are available on request. However, Customer agrees to maintain a current copy of all content hosted by NovaHost, in the event that NovaHost maintained backups are unavailable. NovaHost does not warrant the availabilty of any backup copies of Customer files. Backups are not kept of VPS servers.

9. Changes to NovaHost's Network
Upgrades and other changes in NovaHost’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. NovaHost reserves the right to change its network in its commercially reasonable discretion, and NovaHost shall not be liable for any resulting harm to Customer.

10. Force Majeure
NovaHost shall not be in default of any obligation under the Terms if the failure to perform the obligation is due to any event beyond NovaHost’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 labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

11. Governing Law/Disputes
The Terms shall be governed by the laws of the Province of Nova Scotia, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Terms shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE TERMS SHALL BE THE PROVINCIAL AND FEDERAL COURTS IN HALIFAX REGIONAL MUNICIPALITY, NOVA SCOTIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

12. Privacy Policy

Personally identifiable information may be collected to provide service, or for fraud prevention purposes. We take care to ensure the security of all information collected. Customers may request the removal of their information upon termination of service. Information submitted to us will never be shared or sold to third parties, except where necessary by law or for continuation of service.

We make every effort to secure our servers and maintain your privacy. Files uploaded to our servers will never be examined or opened by NovaHost, except with your permission, or if necessary to investigate compliance with our Acceptable Use Policy. If we become aware of a security breach of either your files or other personal information, we will make every effort to immediately notify you.

Non-personally identifiable information may be collected when browsing our site, for statistical purposes.