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UPDATED NOVEMBER 13, 2009
TERMS OF SERVICE (“TOS”) - GENERAL
This policy represents the EQQY.COM, EQQY DESIGNS, EQQY CREATIVE,
EQQY HOSTING and its parent company XKUBE ENTERPRISES INC.,
(hereafter collectively referred to as “EQQY”
or the “Company”) Terms of Service ("TOS")
in its entirety and supersedes any other written or oral policy.
This policy defines the terms of service all customers agree
to when they sign-up for hosting services with the Company.
EQQY reserves the exclusive right to revise, change, or amend
any portion of this policy at any time, without advance notice
to customers.
Customers using any services
offered by the Company consent to be bound by and must comply
with all policies in this TOS. At the sole discretion of EQQY,
any violators of this TOS may have their services cancelled
without refund and/or, if deemed appropriate, be legally prosecuted.
PLEASE READ THIS AGREEMENT
CAREFULLY. BY WRITTEN OR ORAL AGREEMENT, OR ORDERING ONLINE
REFERENCED HEREIN, YOU ARE AGREEING TO BE BOUND BY THE TERMS
OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED
BY REFERENCE IN THIS AGREEMENT, INCLUDING EQQY'S PRIVACY POLICY & ACCEPTABLE
USAGE POLICY. YOUR USE OF THE SERVICES ALSO CONSTITUTES ACCEPTANCE
OF THIS AGREEMENT.
GENERAL PROVISIONS
In consideration for EQQY maintaining one or more accounts
(each "account"), you agree to the following terms
of service.
DEFINITIONS
DISCLAIMER OF WARRANTY
The Internet is a complex network of equipment, services,
and providers of information, thus the service may not be available
to you at all times. That said, EQQY offers a 99.9% uptime
guarantee. This is valid for only the connection. The Company
will pursue all resources and channels available to maintain
maximum uptime; however, EQQY is not responsible for any down
time caused by a client's error.
EQQY MAKES NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING BUT
NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR USE) WITH RESPECT TO THE SERVICES
IT PROVIDES. Neither EQQY nor anyone else involved in the provision
of service is liable to you or any third-party for direct or
indirect damages resulting from the use or non-use of services
provided herein, whether or not such damages resulted from the
negligence of EQQY, even if EQQY has been advised to the possibility
of such damages.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EQQY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
PUNITIVE, OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, AND DAMAGES RELATED TO CORRUPTION
OR DELETION OF WEBSITE CONTENTS, EMAIL DATA AND OR DATABASE
CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR
YOUR USE OR INABILITY TO USE EQQY'S SERVICES (INCLUDING, BUT
NOT LIMITED TO, INOPERABILITY OF EQQY'S SERVERS), REGARDLESS
OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EVEN IF EQQY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EQQY'S MAXIMUM
LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO EQQY FOR THE
SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT
APPLICABLE LOCAL LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY
FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, EQQY'S LIABILITY IS
LIMITED TO THE EXTENT PERMITTED BY LAW.
INDEMNIFICATION
You agree to indemnify, defend, and hold EQQY and its affiliates,
directors, officers, employees, and agents harmless from and
against any liabilities, losses, damages or costs, including
reasonable attorneys' fees, resulting from any third-party claim,
action, dispute, or demand related to your use of the services,
your violation of any of the provisions of this agreement, or
from your placement or transmission of any materials or content
onto EQQY's servers. Such liabilities may include, but are
not limited to, those arising from the following: (a) with respect
to your business, (i) infringement or misappropriation of any
intellectual property rights; (ii) defamation, libel, slander,
obscenity, pornography, or violation of the rights of privacy
or publicity; or (iii) spamming, or any other offensive, harassing
or illegal conduct or violation of the acceptable uses described
herein or anti-spam policy; (b) any damage or destruction to
EQQY's equipment or to any other accountholder, which damage
is caused by or otherwise results from acts or omissions by
you, your representative(s) or your designees; (c) any personal
injury or property damage arising out of your activities related
to the services, unless such injury or property damage is caused
solely by EQQY's gross negligence or willful misconduct; and
(d) any other damage arising from your equipment or your business.
SERVICES PROVIDED BY EQQY
WEB HOSTING SERVICES
EQQY will provide web hosting services or Internet server
rental (the “Service") to its members
for the express purpose of allowing customers to provide http
Internet content to the general public. The service allows EQQY
members to maintain Internet websites, receive, and maintain
email accounts, and access web space via FTP to upload files
for their websites. For the term of the agreement as set forth
herein, EQQY agrees to provide these services according the
plan selected by you upon activation of your account. EQQY
reserves the right to change, amend, and/or otherwise alter
the services provided with equivalent or otherwise equal services
without prior notice to you. The specifics of any particular
offer are contained within the offer itself as published on
the EQQY website at the time you create your account and remain
in effect throughout the term of your agreement. Services shall
be defined as server space and data transfer allowances for
the purposes of displaying a business or personal website.
EQQY members will use the
provided services in a manner consistent with any and all applicable
provincial, state, Canadian federal laws, and U.S. federal laws.
EQQY provides the services exclusively and makes no effort to
edit, control, monitor, or restrict the content of data other
than as necessary to provide such services. If any of the below
activities are committed, EQQY can terminate a client's account
without notification.
DOMAIN REGISTRATION AND OTHER SERVICES
At a customer's request, EQQY
may also acquire a second-level domain name ("Domain
Name"), on behalf of a customer. EQQY will not
own or otherwise control any domain name registered on your
behalf. EQQY provides this service as a convenience to you
only and you hereby waive any and all claims which you may have,
or which may later arise, against EQQY for any and all damages,
losses, claims, or expenses arising from or related to the acquisition,
registration and/or use of the domain name. Any costs incurred
by EQQY to obtain and/or maintain the domain name on your behalf
shall be charged to you by EQQY under the provision therefore
elsewhere herein.
OTHER SERVICES
EQQY offers a listing of additional
services in conjunction with its domain registration and web
hosting services. The terms of these services are governed
by this agreement. The details of these services are as indicated
within the EQQY website.
PRIVACY REGISTRATION SERVICE
Upon request, the EQQY member
may elect to use EQQY's Private Registration Service (“WHOIS
Privacy”). If so, you agree to be bound by the terms
of EQQY, which may be found on the EQQY website. The terms
of WHOIS Privacy are incorporated into this agreement as though
they were fully set forth at length herein. You agree to maintain
your registration information in full compliance with this agreement
and the terms of the WHOIS Privacy. Failure to so comply is
cause for immediate suspension of all EQQY services.
EQQY offers this service in
compliance with all domain name registration laws and obligations
under all jurisdictions. This includes acceptable terms as
illustrated by ICANN listed at www.icann.org
IP ADDRESS OWNERSHIP
During the course of providing
services to a customer, EQQY may assign a customer an Internet
Protocol address. The customer agrees that he/she has no right
to a particular IP address under this agreement, and accordingly,
EQQY shall retain ownership of any IP address or addresses used
by the customer under this agreement, and that EQQY reserves
the right to change or remove any and all such Internet Protocol
numbers and addresses, in its sole and absolute discretion.
ACCEPTABLE USE
a) Client Content: The client
agrees that web pages and files uploaded to servers will not
violate any provincial, state, federal, or foreign laws or regulations;
infringe on any intellectual property rights of EQQY or any
third party; be defamatory, slanderous or trade libellous; be
threatening or harassing; be discriminatory based on gender,
race, age; promote hate; or contain viruses or other computer
programming defects which result in damage to EQQY or any third
party. Customers may not run IRC, bots, or clients. Unacceptable
uses also include: bulk unsolicited emailing, unsolicited emailings,
newsgroup spamming, child pornography, hardcore pornography
or links to such sites, copyrighted MP3, illegal content, copyright
infringement, trademark infringement, warez, cracks, software
serial numbers. EQQY will be the sole and final arbiter as
to what constitutes a violation of this policy. EQQY does not
normally monitor the contents of clients' servers; however,
if suspicion occurs, EQQY reserves the right to investigate
and terminate the client's subscription to the service.
b) Bandwidth Usage: EQQY offers
a generous amount of data transfer per month. EQQY reserves
the right to review and place limitations on those accounts
that adversely affect an individual server’s processing performance.
c) Excessive Resource User
Policy: Resources are defined as bandwidth, memory, and/or
processor utilization. A website is considered using "excessive
amounts of resources" when it monopolizes the resources
available using 1% or more of system resources for longer than
60 seconds. There are numerous situations where such problems
could be caused, including, but not limited to: cgi scripts,
FTP, HTTP, etc. This policy is only implemented in extreme
circumstances and is intended to prevent the misuse of our
servers. EQQY will be the sole and final arbiter as to what
constitutes a violation of this policy.
d) No "Spam": UCE/UBE or "spam" originating
from a server located on our network or associated with an EQQY
server is not tolerated. This includes any email that promotes
websites hosted on a server located on the EQQY network, but
which is sent from an email address not associated with an EQQY
account. The client shall not use their EQQY services for chain
letters, junk mail, bulk-email, or any use of distribution lists
to any person who has not given specific permission to be included
in such a process. EQQY reserves the right to deactivate or
terminate any account(s) upon any indication of such activity
without notice. There will be a $200 clean-up fee if an account
was suspended for policy violation. In the event of a dispute
EQQY reserves the right to determine, in its sole and discretion,
whether email recipients were from an opt-in email list.
e) False Information: The
client agrees not to post false or inaccurate information to
news groups in violation of the news groups rules and regulations.
If any news groups or service provider contact EQQY concerning
unethical, false, or unlawful activities by you, EQQY reserves
the right to terminate your service without notice.
f) Licensed Software Only:
The client agrees to use only properly licensed third party
software in connection with the client's use of the services.
g) Back-Up Files: EQQY provides
the tools needed to create back-ups of account data. It is
the responsibility of the customer to keep up-to-date archives
of his/her backed up data. EQQY currently does not utilize
any back-up services and is not responsible for any lost data.
h) No Unauthorized Scripts
or Executables: The customer agrees not to run any scripts,
executables, or other programs or processes on EQQY servers
or other equipment that will in any way adversely affect the
performance of said equipment.
i) Violations of Intellectual
Property Rights: The customer agrees that it shall not violate
any intellectual property rights and that it shall not resell
services to any party which violates intellectual property rights.
Any violation of any individual or entity's intellectual property
rights including rights of privacy and rights of publicity is
prohibited. EQQY is required by law to remove or block access
to content appearing on or through the services upon receipt
of proper notice of copyright infringement.
j) Viruses and Other Destructive
Activities: Use of the services for creating or sending malicious,
destructive, or nuisance code, examples of which include but
are not limited to, viruses, worms and Trojan horses, or for
pinging, flooding or mail-bombing, or engaging in denial of
service attacks is prohibited and is a breach of this agreement.
The customer also agrees not to engage in any other activity
that is intended to disrupt or interfere with, or that results
in the disruption of or interference with, the ability of others
to effectively use the services (or any connected network,
system, service or equipment).
k) Malicious or Unauthorized
Hacking: The customer agrees not to conduct or promote any 'hacking'
activity and agrees that 'hacking' as herein defined includes
but is not limited to, the following activities: illegally or
without authorization, accessing computers, accounts or networks,
penetrating or attempting to penetrate security measures, port
scans, stealth scans, and other activities designed to assist
in malicious or unauthorized hacking or cracking. Any such
activity on the part of customer is a material breach of this
agreement.
l) Child Pornography: The
use of the services to store, post, display, transmit, advertise,
or otherwise make available child pornography is prohibited.
EQQY will as required by law, notify law enforcement agencies
when it becomes aware of the presence of child pornography on,
or being transmitted through, the services.
m) Other Illegal Activities:
The use of the services to engage in any activities that are
determined by EQQY, in its sole and absolute discretion, to
be illegal or which in EQQY's opinion are likely to be found
to be illegal is prohibited. Such illegal or potentially illegal
activities include, but are not limited to, storing, posting,
displaying, transmitting or otherwise making available ponzi
or pyramid schemes, password and cracking information, fraudulently
charging credit cards or displaying credit card information
or other private information of third parties without their
consent, and failure to comply with applicable on-line privacy
laws. EQQY will cooperate fully with appropriate law enforcement
agencies in connection with any and all illegal activities occurring
on or through the services.
n) Obscene, Defamatory, Abusive
or Threatening Language: Use of the services to store, post,
transmit, display or otherwise make available obscene, defamatory,
harassing, abusive, or threatening language is prohibited.
o) Data Warehousing: The servers
provided by EQQY are intended for web services use only. Any
use of our servers for file storage, data warehousing, back-up
data storage, or any form of data file storage or management
is prohibited. EQQY servers are intended for web enabled services
and hosting.
p) Prohibited Activities:
The client will not run services or software related to Internet
Relay Chat ("IRC"), Peer To Peer File Sharing ("P2P"),
bit torrent, game servers, proxy server network, or interactive
chat applications. The client is strictly prohibited from
running a P2P, membership or community site for file sharing,
video sharing or photo sharing. The above activities consume
a great deal of server resources and are strictly prohibited.
q) Other Prohibited Activities:
Engaging in any activity that, in EQQY's sole and absolute discretion,
disrupts, interferes with or is harmful to (or threatens to
disrupt, interfere with, or be harmful to) the services, EQQY's
business, operations, reputation, goodwill, customers and/or
customer relations, or the ability of EQQY's customers to effectively
use the services is prohibited. Such prohibited activities
include making available any program, product or service that
is designed to or could be used to violate this agreement.
In addition, the failure by a customer to cooperate with EQQY
in correcting or preventing violations of this agreement by,
or that result from the activity of, a customer of the subscriber
is a violation of this agreement.
FEES AND PAYMENTS
a) Fees – EQQY charges the
following fees where applicable. All such fees are subject
to change with 30 days notice. Not all fees are applicable
to all accounts.
b) Set-Up Fee – This is a
one-time fee that may be charged in connection with the establishment
of a new account.
c) Service Fee – This is the
fee for your 1-year, 2-year or 3-year web hosting services.
d) Domain Registration Fee
– This is the fee for the registration of a domain name and
is non-refundable.
e) Other Service Related Fees
– These are fees for additional services that you may choose
to add to your account.
f) Change of Plans – EQQY
also reserves the right to alter, change, amend, or delete fees
at its sole discretion. EQQY further reserves the right to
institute new services and charge fees in association with the
provision of such new services as it deems appropriate.
g) Promotions – EQQY reserves
the right to offer promotional rates which may or may not be
more favorable than the terms under which you entered this agreement.
Any special rates shall not affect the existing rights and responsibilities
of each party. EQQY also reserves the right to change the rate
charged for any such fee under this agreement with 30 days notice.
h) Payment of Fees - EQQY
accepts payment by credit card (Visa, MasterCard) and by PayPal.
i) Payment Obligations: Full
payment is required in advance before hosting service is established.
EQQY sends out invoices that are due every pay period. You
are given fifteen (15) days to fully pay the invoice. You warrant
and represent that the information you supply in the order form
(or other information that EQQY may require) is accurate and
truthful. All payment-due notices will be sent by email. No
bills or invoices will be sent by postal mail or fax. If payment
was not received by the due date, your account will be suspended.
To have your account re-established, you will need to pay the
monthly fees, plus any interest that may have accumulated at
the rate of 4.75% per month. There is a $25 fee for bounced
checks and a $25 processing fee for chargebacks.
j) Renewals: Your account
will be automatically renewed under the same time and fee structure
unless you give written notice to EQQY thirty (30) days before
the renewal date that you do not wish to renew or make changes
to such term of this agreement.
k) Cancellation & Refunds: Should you become dissatisfied
with our services within the first 30 days of your account activation,
EQQY will refund your hosting fees, subject to the money back
guarantee terms listed in this agreement. There are no refunds
on setup fees, domain registrations, or for pre-paid accounts
after the 30 days of account activation. You may, however,
cancel your account at any time. You will need to contact customer
service and verify your information before cancellation takes
place. Accounts which have negative balances or fees owing
will have all respective services terminated, including hosting
accounts with applicable domain registrations. Furthermore,
if you have a domain that you acquired through our “free domain”
promotion at the time you became a EQQY customer and wish to
transfer this domain to another web hosting provider or domain
registrar, this domain will be subject to a domain registration
fee prior to the execution of the transfer process.
99.9% SERVICE LEVEL AGREEMENT (“SLA”)
EQQY offers its clients a
99.9% network uptime guarantee for customer satisfaction purposes
and also to ensure that your business is running problem-free.
EQQY will try to maintain maximum uptime. EQQY is not responsible
for any downtime caused by the client.
30-DAY MONEY BACK GUARANTEE – WEB HOSTING SERVICES
EQQY offers an unconditional
30-day money back guarantee that covers cancellations of a web
hosting account made during the first 30 days of service, due
to the inability to deliver satisfactory services. As a part
of our mission to achieve industry-leading customer satisfaction,
the customer will be refunded all hosting related charges made
to his/her credit card minus any set-up fees, which are non-refundable.
The guarantee does not apply to accounts with non-use, misuse,
and/or abuse of this agreement. PLEASE READ CAREFULLY: DOMAIN
NAME REGISTRATIONS ARE NOT REFUNDABLE and are subject to a domain
name registration fee. Furthermore, if you have a domain that
you acquired through our “free domain” promotion at the time
you became a EQQY customer and wish to transfer this domain
to another web hosting provider or domain registrar, this domain
will be subject to a domain registration fee prior to the execution
of the transfer process. This 30-day money back guarantee applies
only to our web hosting services AND ARE NOT APPLICABLE to the
domain name registrations. Any questions regarding the 30-day
money back guarantee should be forwarded to support@eqqy.com.
SUSPENSION AND TERMINATION
At the sole discretion of
EQQY, for any reason set forth herein or in the event that you
breach any term of this agreement including but not limited
to payment of fees or any violation of the acceptable use policy,
EQQY may suspend your account by deactivating any access by
you and/or by web users to any information contained on the
EQQY servers related to your account. Suspension shall specifically
include the disabling of your hosted domain and/or any access
to information or data related to your account. In the event
of any such suspension, you will be notified. At the option
of EQQY, you may be given an opportunity to correct such breach
or violation. Upon being notified of an opportunity to correct
such breach or violation, if such breach or violation is not
corrected, the account may be terminated. Service charges will
continue to accrue on suspended accounts as if they were not
suspended. You will remain responsible for the payment of any
such charges during any such period of suspension.
a) Termination – This agreement
and all of its terms shall remain in full force and effect until
it is terminated. Termination shall include the removal of
any and all of your information from the EQQY servers. Such
information or data may or may not be made available to you
by EQQY after any such termination. This agreement may be terminated
either after a period of suspension as indicated above or at
the sole discretion of EQQY. In the event of termination, there
will be no refund provided to you.
ASSIGNMENT
Your rights under this agreement
may be assigned only upon prior notice and express approval
by EQQY. Any other attempted transfer or assignment of rights
hereunder shall be null and void.
You have all rights to transfer,
sell, or modify your domain name to another person or individual.
If you decide to sell or transfer your domain name and EQQY
is the domain name registrar, please request our "domain
name transfer instructions" by sending an email to support@eqqy.com.
We will send you the specific details and information about
transfer of ownership.
Web hosting services accounts
from EQQY are not transferable and cannot be assigned to another
individual.
EQQY may assign its rights
hereunder to any person or entity who shall become a principal
owner, or shareholder of EQQY.
AMENDMENT
EQQY may without advance notice
amend this agreement from time to time, and will do so by posting
the new agreement on the EQQY websites in place of the old agreement.
Each and every such amendment shall be become effective immediately
for all pre-existing and future accounts. If any material modification
to this agreement is unacceptable to the customer it shall be
customer's responsibility to terminate his/her subscription.
If the customer does not terminate the agreement within 10 days
of the material modification, then customer's continued use
will mean that customer has accepted the amended or modified
agreement and the agreement is in full force and effect.
INDIRECT OR ATTEMPTED VIOLATIONS
OF THE ACCEPTABLE USE POLICY, AND ACTUAL OR ATTEMPTED VIOLATIONS
BY A THIRD PARTY ON YOUR BEHALF, WILL BE CONSIDERED VIOLATIONS
OF THE TERMS OF USE BY YOU.
If you want to report any
violations of these Terms of Use, please contact abuse@eqqy.com.
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