General Terms of Service
The foregoing Terms of Service applies automatically to all 3z Canada clients upon subscription to the Services including subscription through a third party or any commercial partner. BY SUBSCRIBING TO 3Z'S SERVICES YOU ACCEPT THE POLICIES LISTED IN THIS DOCUMENT AND COMPLY WITH THEM. The service order is described as the package description as presented on the web site or the "service order" document in case of colocation and dedicated server services.
3z Canada, agrees to provide services described in the Service Order(s) signed by the parties ("Services") to the Customer subject to the following Terms of Service (TOS). Use of 3z Canada services constitutes acceptance and agreement to these Terms of Service and all attachments. 3z Canada will make all reasonable efforts to provide a quality service to the Customer. The Customer acknowledges that 3z Canada is currently establishing a new business site and expects to be able to offer services to the Customer effective March 15, 2008. In the event that the site is not ready to provide service on this date, the commencement date of the contract may be extended by up to three (3) months by 3z Canada.
3z Canada will use the Customer's personal information only as reasonably necessary to provide contracted services and to collect fees owed and will not disclose such information to any third party except as required by law as evidenced by an Order of a Court of Competent Jurisdiction and to collection services if needed. The Customer authorizes 3z Canada to use its name, business name and comments in marketing documents. At any time, the Customer can send a written notice to withdraw this authorization.
3z Canada will provide to the Customer the Internet Connectivity, IP Addresses and Internet Traffic services (collectively, the "Bandwidth Services"), as specified in the Service Order.
3Z Shared Hosting
The Customer agrees to use bandwidth as described in the Acceptable Usage Policy.
3Z Dedicated Server and Colocation
The Customer agrees that bandwidth shall not exceed the number of gigabytes per month for the Services ordered by the Customer on the Service Order Form and that number of gigabytes is the sum of the incoming and outgoing data transfer for a period of 1 month. 3z Canada will monitor the Customer's bandwidth usage and shall have the right to take corrective action if the Customer's bandwidth usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges based on the per gigabyte price stated on the Service Order.
Internet Protocol Addresses
Any IP Addresses allocated to the Customer by 3z Canada must be maintained by the Customer in an efficient manner as deemed by American Registry of Internet Numbers and utilized at 80% within 30 days of assignment by 3z Canada to the Customer. Failure to comply with this Section may result in the revocation of IP Addresses by 3z Canada after five days written notice to the Customer. 3z Canada shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to the Customer by 3z Canada and 3z Canada reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. All IP requests must be fully justified.
Upon request by the Customer, 3z Canada may at its option, provide the Customer with technical and non-technical support, such as equipment reboots, troubleshooting, Domain Name Services and other support, in connection with the Customer's use of the Customer Space and Bandwidth Services. The Customer agrees to pay the hourly rate of $100 for those other services.
Installation, removal, replacement, maintenance and access to equipments
3Z Shared Hosting and 3Z Dedicated Servers
3z Canada is the owner of the equipment used by the Customer and grants a license to use this equipment. The Customer has no proprietary rights to the equipment unless otherwise specifically provided for in the Service Order Form. Physical access to the equipment by the Customer is strictly prohibited.
3z Canada grants to the Customer, as of the Effective Date, the right to operate, install, remove, replace and maintain a specific physical server hardware located in one of 3z Canada's datacenters and described in the Service Order. The Customer must install the hardware in the space identified on the service order and reserved for its usage. The Customer will be responsible for the delivery of the Equipment. The Customer represents and warrants that it either owns all Equipment or has the lawful right to locate the Equipment in the Premises. During the Term of this Agreement, the Customer will immediately notify 3z Canada of any space, power or other requirements associated with the installation or operation of the Equipment. 3z Canada will have no duty to monitor, maintain or care for the Equipment. Upon termination or expiration of the Term of this Agreement, unless prohibited by 3z Canada as permitted by this Agreement, the Customer will remove the Equipment from the Premises. Unless the Parties otherwise agree in writing, in the event the Equipment has not been removed within 5 days following the termination or expiration, 3z Canada will have the right to remove, relocate, or otherwise store the Equipment at the Customer's expense without liability to the 32z Canada.
3Z Colocation - Individual server space
The Customer will be responsible for the delivery of the Equipment. 3z Canada is responsible of the initial installation of the equipment in the individual server space. Access to the equipment is authorized during business hours upon previous written notification from the Customer and when accompanied by a 3z Canada staff member. Emergency access can be arranged outside business hours, the Customer will pay for emergency access requests in accordance with emergency hourly rate charged by 3z Canada from time to time.
3Z Colocation - Private space
The Customer will be responsible for the delivery and installation of the Equipment in the private space. Upon request, the Customer can get 24/7 access to the private space. 3z Canada reserves the right to approve of the Customer's technicians and other contractors and to require identification, fingerprints and photos of each individual who have access to the Premises. The Customer will cause its employees, agents, contractors or invitees who have access to the premises to conform with all 3z Canada terms, rules and regulations (as amended by 3z Canada from time to time). Except with 3z Canada's prior written approval and subject to the terms of this Agreement, the Customer may only remove Equipment upon reasonable prior written notice to 3z Canada and during business days between 9:00 a.m. and 5:00 p.m. The Customer will only install or place Equipment in the Customer Space.
No access will be given to the shared/individual or private space at anytime, under any circumstances unless in the company of an authorized employee of 3z Canada..Periodic InspectionsThe Supplier reserves that right to make periodic inspections of any part of the Customer Space or EquipmentConsent to Video MonitoringThe Customer acknowledges, agrees and hereby consents under applicable privacy laws that the Supplier may monitor the premises and the Customer space by way of closed circuit television or other monitoring devices for the purposes of maintaining the safety and security of the premises, any equipment in the premises, and any persons using or present in the premises from time to time. Access control system may include biometric readers, fully caged infrastructure areas, and lockable racks. As an option, the Supplier may provide optional rack door contact sensors with logging and alarm, as well as in-suite video surveillance.
If, in the determination of 3z Canada, acting reasonably, the Equipment, software or hosted applications used by the Customer or the activities of the Customer poses an immediate threat to the physical integrity of the Premises or the physical integrity or performance of the equipment or network of 3z Canada or any other user of the Premises, or poses an immediate threat to the safety of any person, then 3z Canada may perform such work and take such other actions that it may consider necessary, without prior notice to the Customer and without liability for damage to the Equipment or Data for any interruption of the Customer's (or its Customers') businesses. As soon as practicable after performing such work, 3z Canada will advise, by email, the Customer of the work performed or the action taken. 3z Canada may remove equipment if there appears to be a threat as described above or at the end of the Contract with the Customer.
The Customer will, upon email request from 3z Canada's, relocate the Equipment, server or web site to other comparable space offered by 3z Canada within 30 days of such request, without compensation from 3z Canada.
Under no circumstances will 3Z Canada be obligated to provide insurance coverage for any Equipment or data owned by the Customer and hosted in the Premises, and unless specifically provided for, no insurance coverage will be provided for the Customer. The Customer will maintain, at the Customer's expense, during the Term of this Agreement for the Customer Space (i) Comprehensive General Liability Insurance protecting the Supplier as an additional insured, in an amount not less than One Million Dollars ($1,000,000.00) per occurrence for bodily injury or property damage, and (ii) Workers' Compensation coverage in an amount not less than that prescribed by statutory limits. Immediately upon commencement of the Term and thereafter, upon the Supplier's request, the Customer will provide the Supplier with certificates of insurance or other satisfactory evidence that the insurance required in this Section has been obtained. Under no circumstances will the Supplier be obligated to provide insurance coverage for any Customer's Equipment in the premises or the Customer space. Customers agree to provide evidence that all Customer property is adequately insured. 3z Canada shall not be liable for any damage or loss to the Customer's property or data, however caused.
If the Customer is in default of any of its obligations under this Agreement, then 3z Canada may in its sole discretion do any or all of the following: (i) without notice suspend access to the Customer Space or the Premises, (ii) if the Customer's default is non-payment of any sums due to 3z Canada, exercise all the rights and remedies of a secured party under applicable law including, without limitation, with the minimum notice (if any) required by law, 3z Canada may seize the Equipment and sell the Equipment to third parties in satisfaction of any Customer indebtedness owing to 3z Canada as well as any costs (including reasonable legal fees) incurred by 3z Canada in exercising any remedy under this Agreement.
Billing and Termination
Invoices are sent by email, upon request a copy can be sent by mail. First Month's Payment shown in the Service Order must be paid by the Customer to 3z Canada before commencement of the Term. All other invoices must be paid by the Customer within 10 days from the date of 3z Canada's invoices, which invoices will be issued 10 days before the end of the last paid period.
The Customer will pay 3z Canada the One-Time Install Fees and Recurring Monthly Fees specified in the Service Order, as well as any charges for Other Services and the Customer will pay all applicable taxes levied against or upon the services stipulated in the Service Order (as amended by the parties from time to time) or otherwise provided by 3z Canada under this Agreement. All One-Time Install Fees will be payable in advance. Recurring Monthly Fees will be payable in advance upon the Customer's chosen payment period. All other fees and the cost will be payable monthly and payment due on the renewal date. Except for the First Month's Payment shown in the Service Order, which must be paid by the Customer to 3z Canada before commencement of the Term, all amounts will be payable in Canadian Dollars within 10 days from the date of 3z Canada's invoices, which invoices will be issued 10 days before the end of the last paid period. The Customer will pay by pre-authorized payment to a Customer credit card, or by cheque of immediately available funds, remitted to 3z Canada. Service interrupted for nonpayment is subject to a $50 reconnect charge. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS. A $10 renewal fee will apply to all renewals. The renewal fee will be waived if the Customer chooses to pay by Credit card or preauthorized cheque payments. Any payment not made when due will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%). Cheques which do not clear the issuer's bank for any reason are subject to a penalty fees of $25. Where 3z Canada has concerns about the Customers ability to pay, 3z Canada may require the Customer to enter into an arrangement for payment by way of pre-authorized chequing or pre-authorized payment by the Customer credit card, at the option of 3z Canada.
Service will be interrupted on past due accounts after a 24 hours notification. Service interrupted for nonpayment is subject to a $50 reconnect charge. Accounts that are not paid to 3z Canada within forty five days of the due date will be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS. In addition to the foregoing, if the late payment persists for five (5) days, no access to the Customer's equipment will be provided to the Customer until payment is made. If payment is not made for fifteen (15) days, the Customer's equipment will be disconnected from the network and electrical system, until payment is made. If late payment is not made within thirty (30) days, all of the Customer's equipment may be seized by 3z Canada and sold for monies owing. Any surplus funds available after the costs of seizure and sale are deducted will be returned to the Customer. 3z Canada will attempt to sell the equipment quickly and will not be responsible for any claim from the Customer with respect to the sale price of their equipment.
Upon 30 days or greater written notice, prior to the end of the initial commitment period, 3z Canada may change any fees payable under this Agreement. The Customer may cancel any contract on thirty days written notice if they are not satisfied with the increase. 3z Canada may increase the fees at any time without notice where the purpose of the increase is to recover increased electricity costs 3z Canada may incur from its electricity provider.
Term and Termination
The term of this Agreement shall begin when the Service Order Form is received and shall be for the period stated in the commitment section of the Service Order. If no commitment is stated, the term will be of 1 month. Agreement is renewed for successive 1 month periods after initial commitment, until terminated by either Party. After initial commitment stated on the service order, either party may terminate this Agreement (i) for convenience on 45 days written notice to the other party, or (ii) if the other party (a) commits a material default (which, in the case of the Customer, will include any failure to make any payment when due) and fails to rectify such default within 10 days after being given notice of such default by the other party, or (b) becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.
Cancellation requests must be made in writing with the Customer's signature with at least 45 days notice and sent to: 3z Canada, 6013-25 Crouse Road, Toronto (Ontario), Canada, M1R 5P8. Customers may also send the cancellation request by facsimile at 1-416-981-3365.
Upon account activation, 3Z reserves space, equipment and resources for the Customer's needs. Customers must pay their account even if they are not making any use of it.
The Customer hereby authorizes 3z Canada and gives consent to 3z Canada under applicable privacy laws for 3z Canada to obtain credit information and bank and other financial references regarding the Customer for the purposes of assessing the Customer's credit worthiness, and the Customer will promptly execute and deliver to 3z Canada such further documents and assurances and take such further actions as 3z Canada may from time to time reasonably request in order to carry out the intent and purpose of this Section. The Customer also agrees to provide a copy of their own Credit Bureau Report, if requested by 3z Canada, not more than once a year.
Guaranteed Electrical Power
3Z guarantees the electrical power supply of its datacenter to 100% for all the Customers subscribed to a solution which includes an electrical supply port or an amp circuit. Exclusions, terms and conditions of the guarantee are posted on our web site.
Guaranteed Hardware Replacement
This guarantee is only applicable to 3Z Dedicated Server Customers. At any time, dysfunctional dedicated server hardware will be replaced within four hours. Exclusions, terms and conditions of the guarantee are posted on our web site.
3z Canada warrants that the Service(s) shall be provided in a workmanlike and professional manner. Upon 3z Canada's breach of the foregoing warranty or any of the above-referenced "guarantees", the Customer's sole and exclusive remedy shall be to require 3z Canada to exercise commercially reasonable efforts to repair or replace the nonconforming Service(s); provided, however, that, with respect to any Service(s) which are interrupted or rendered inoperable due solely to 3z Canada's breach of the foregoing warranties or the above guarantees, for any time period, the Customer shall also be entitled to a pro-rata refund of any Fees attributable to the interrupted or inoperable Service(s) in an amount pre-determined by a 1 day refund for each 60 minute interruption. Refunded amounts on account of failures in any one month shall not at any time exceed the monthly fee paid by the Customer for that month.
3z Canada will not be liable to any extent whatsoever for interruption, restriction, inoperability or malfunction of any Service(s) which is not caused solely by a breach of the warranties set forth in this Section. 3z Canada expressly reserves the right to suspend, interfere with, impair or terminate Service(s) as necessary for purposes of maintenance, upgrades or repair (either by 3z Canada or by any Supplier, partner or independent contractor of 3z Canada.) or in the event of any circumstance which 3z Canada, in its sole discretion, deems necessary or desirable to prevent or remedy an impairment of, or harm to, the integrity or functionality of any Service(s) or any plant, services or facilities of any Indemnities or of any third party, and neither the exercise nor the non-exercise of the foregoing rights or discretion shall constitute a breach of any provision of this Agreement.
Uptime Guarantee Terms
3z Canada guarantees 100% network uptime for all subscribers of a solution which includes a network connection. During one month, 3z Canada will compensate its clients with a credit equivalent to one day for the first 30 minutes of unavailability and one day of credit for each of the following 30 minutes. The credit can be claimed up to half of the monthly amount paid for the service. Unavailability is defined by failed PING commands to the IP address of the machine hosting your web site. This unavailability must be directly caused by problems in the connection linking the 3z Canada to the Internet and must be verifiable from multiple external Internet hosts.
The guarantee is limited to network unavailability on the network operated by the 3Z and the hardware owned by the 3z Canada or one of direct Suppliers. The guarantee is in no case applicable to external network problems that might cause local perturbations for some internet service providers. The guarantee is in no case applicable, without being limited, to unavailability caused by hardware or software malfunctions, unavailability caused by the application of the acceptable use policy, to a network slowdown, to planned maintenance activities or to any event that is not directly under the 3z Canada's direct control. Any request for credit concerning a problem other than network uptime will be analyzed and treated individually as an independent request which is not subject to the network uptime guarantee.
The guarantee is limited to the network unavailability. You may verify it by using the "ping" and "traceroute" commands. All reclamations concerning this guarantee must be done using the standard document located in the "Technical Support" section of 3z Canada's site. All requests must be made within seven (7) days following the end of the month in question. Reclamations must include the time of the start of the unavailability, the time of the return to normal, at least 3 "traceroute" commands taken during the unavailability, the name of the client, the client's main domain name and the client's account number. The thoroughly filled reclamation form must be sent by fax. Any incomplete reclamation form will be discarded. The request will be processed within 10 to 15 days following its reception.
EXCEPT AS SET FORTH IN THIS SECTION AND THE ABOVE GUARANTEES 3z Canada MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF UNINTERRUPTED OR ERROR-FREE OPERATION AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE(S) OR ANY ASPECT THEREOF, AND ALL WARRANTIES WITH RESPECT THERETO ARE HEREBY EXPRESSLY DISCLAIMED.
Limitation of Liability
THE CUSTOMER ACKNOWLEDGES THAT 3z Canada PERMITS OTHER CUSTOMERS TO INSTALL THEIR SOFTWARE AND EQUIPMENT IN THE PREMISES. 3z Canada WILL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS, OR LOSSES INCURRED BY THE CUSTOMER (OR ITS RESALE Customers) CAUSED BY SUCH OTHER LICENSEES' ACTS, EQUIPMENT, SOFTWARES, ACTIVITIES OR FAILURES TO ACT. THE LIMIT OF 3z Canada'S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE OR OTHERWISE TO THE CUSTOMER (OR ITS CUSTOMERS) CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER TO 3z Canada UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING MONTH FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL 3z Canada BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the control of the party affected ("Force Majeure"). If any Force Majeure occurs, the party claiming the Force Majeure will promptly notify the other. The party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This Section will not apply to excuse a failure to make any payment when due.
The Customer in the normal course of its business may resell to its Customers use (subject to all the terms of this Agreement) of the Customer Space, Resources and Bandwidth Services provided by 3z Canada to the Customer pursuant to this Agreement, except that the Customer will not allow such Customers to interconnect with other users in the Premises Any act or omission of any such Customer that would be a breach of this Agreement if committed by the Customer will be deemed a breach of this Agreement by the Customer. The Customer agrees to defend, indemnify and hold harmless 3z Canada, and its officers, directors and employees (collectively, the "Indemnities"), from any and all liabilities, costs and expenses, including reasonable legal fees, related to or arising from (i) any act or omission of any such the Customer that would be a breach of this Agreement if committed by the Customer, and (ii) any claim by any such Customer arising from use of the Premises, services provided by 3z Canada under this Agreement or otherwise from performance or non-performance by a party in any manner related to this Agreement.
Responsibility for Content
The Customer is solely responsible for the content stored on and served by his servers. The Customer will ensure all of its documents comply with URL legal and technical requirements.
This Agreement including the attachments hereto and any Service Orders signed by the parties constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, 3z Canada MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. In case of any dispute or inconsistency this main agreement, any attachments, and/or any Service Order, the Service Order will take first priority, this main agreement will take second priority and the attachment will take third priority in interpreting the parties' rights and obligations.
Severability and Reformation
If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Choice of Law and Attornment
This Agreement shall be construed in all respects in accordance with the laws of the Province of Ontario, Canada applicable to contracts enforceable in Ontario, without regard to conflicts of law provisions. The parties hereby irrevocably and unconditionally attorn to the jurisdiction of the courts of Ontario where the Premises are located, and all Courts Competent to hear appeals therefrom.
Complaints or Terms of Sale & Acceptable use Policy violations must be reported to email@example.com, by fax (1-416-981-3365) or by mail at: 3z Canada, 6013-25 Crouse Road, Scarborough, Ontario, Canada M1R5P8.
Changes and Rights
3z Canada may vary these rules and regulations from time to time in its sole discretion, and the Customer will comply with all other reasonable security requirements that 3z Canada may impose from time to time, provided that the Customer has been given 30 days notice.
By signing up for the 3z Canada's services on the Internet, or by using any other means of subscription including subscription via a third party, a sales representative of commercialization partner, the Customer understand and accept the terms of service.
3z Canada may require a signed copy of this document, notwithstanding an electric signature is binding.
The terms of service are amended as stated herein or as we may amend from time to time on twenty one days notice to the Customer: 3z Canada - no Customer shall use the name 3z Canada in any of its advertising or promotional material without the specific written consent of 3z Canada, which consent will generally be denied. The authorized use policy of 3z Canada will be binding on all Customers, as amended from time to time. Any amendments will be ending on the Customer from the Twenty-First day following the giving of notice of the amendment by 3z Canada. The current authorized use policy is attached hereto.
The guarantees contained in this contract are automatically valid for all of the 3z Canada's subscribers. 3z Canada reserves the right to modify the present guarantee at any time, on twenty-one days notice. The modifications will be shown on this page. If you wish a written confirmation of this guarantee, please fax this page to +1 416 981 3365 and we will return it signed and approved.