Dedicated Server Terms of Service
TOS applies to all Abivia clients.
TOS applies automatically to all Abivia clients upon subscription to the Services including subscription through a third party or any commercial partner. BY SUBSCRIBING TO ABIVIA'S SERVICES YOU ACCEPT THE POLICIES LISTED IN THIS DOCUMENT AND AGREE TO RESPECT THEM. The service order is described as the package description as presented on the web site.
General
Abivia Inc., agrees to provide services described in the Quote(s) or Initial Invoice (“Services”) to the customer subject to the following Terms of Service (TOS). Use of Abivia Inc. services constitutes acceptance and agreement to these Terms Of Service and all attachments. Abivia Inc. will make all reasonable efforts to provide a quality service to the Customer.
Privacy
Abivia Inc. 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 Abivia to use it's name, business name and comments in marketing documents. At any time, the Customer can send a written notice to withdraw this authorization.
Bandwidth Services
Abivia Inc. will provide to the Customer the Internet Connectivity, IP Addresses and Internet Traffic services (collectively, the “Bandwidth Services”), as specified in the Quote / Initial Invoice.
The Customer agrees to use bandwidth as described in the Acceptable Usage Policy and agrees that bandwidth shall not exceed the number of gigabytes per month for the Services specified and that number of gigabytes is the sum of the incoming and outgoing data transfer for a period of 1 month. Abivia Inc. 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 then in effect.
IP Addresses
Any IP Addresses allocated to the Customer by Abivia Inc. must be maintained by the Customer in an efficient manner as deemed by ARIN and utilized at 80% within 30 days of assignment by Abivia Inc. to the Customer. Failure to comply with this Section may result in the revocation of IP Addresses by Abivia Inc. after five days notice to the Customer. Abivia Inc. shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to the Customer by Abivia Inc., and Abivia Inc. reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. The Customer can obtain up to 16 IP addresses per server. All IP requests must be fully justified.
Other Services
Unless specified in the Services and upon request by the Customer, Abivia Inc. may at its option, provide the Customer with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support, in connection with the Customer's use of the Computing and Bandwidth Services. Unless covered by a server management plan, the Customer agrees to pay the current hourly rate for those other services. At this time the hourly rate is CA$125.
Installation, Removal, Replacement, Maintenance and Access to Equipment
Abivia grants a license to the customer to use the equipment. The Customer has no rights on the equipment. Physical access to the equipment by the Customer is strictly prohibited.
Billing and Termination
Invoices are sent by email, upon request a copy can be sent by mail. There is a $8.00 surcharge for each mailed invoice. The First Month's Payment must be paid by the Customer to Abivia Inc. before commencement of the Term. All other invoices must be paid by the Customer within 15 days from the date of Abivia Inc.'s invoices, which invoices will be issued 15 days before the end of the last paid period.
Payments
The Customer will pay Abivia Inc. the One-Time Install Fees and Recurring Monthly Fees specified in the Quote, as well as any charges for Other Services the Customer will pay all applicable taxes levied against or upon the services stipulated in the Services (as amended by the parties from time to time) or otherwise provided by Abivia Inc. 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 Quotation, which must be paid by the Customer to Abivia Inc. before commencement of the Term, all amounts will be payable in American or Canadian dollars (as specified on the Invoice) within 15 days from the date of Abivia Inc.'s invoices, which invoices will be issued 15 days before the end of the last paid period.
Late Payment
Service will be interrupted on past due accounts after 48 hours notification. Service interrupted for nonpayment is subject to a $50 reconnect charge. Accounts that are not paid 45 days after due date may 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. Any payment not made when due may be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%). Bounced checks are subject to a penalty fee of $35 CA.
Changes
Upon 30 days or greater written notice prior to the end of the initial commitment, Abivia Inc. may change any fees payable under this Agreement. Specifically, fees are subject to significant changes in exchange rates, notably, but not limited to the rate between Canadian Dollars and US Dollars.
Term and Termination
The term of this Agreement shall begin upon the date the server is installed and made available to the customer and shall be for the period stated in the commitment section of the Initial Invoice 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 the commitment stated on the Initial Invoice either party may terminate this Agreement (i) by written notice to the other party at least 60 days before the termination date, or (ii) if the other party 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 (iii) 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.
No credit will be issued if the Services are terminated, independent of the current term.
Cancellation requests must be made using the "Customer Portal" control panel or in writing with the customer's signature with at least 48 hours notice and sent to : Abivia Inc., POB 776 Campbellford, Ontario, Canada K0L 1L0.
Service Downgrades and Upgrades
Service downgrades (for instance, when changing to a hosting package that offers fewer options) will take effect at the account's anniversary date only (an account anniversary date corresponds to the day of the month at which an account was opened. For instance, if an account was opened on September 8, this account may be modified on the 8th of each month once the original commitment is over). Service upgrades, however, may take effect at any time.
Refund Policy
Any prepayment is a commitment regarding the payment period that can not be refunded. However, when closing a product, and at Abivia's sole discretion, the account may be credited with the value of advanced payments for that product. The credit may be used for further purchases at Abivia.
Billing errors can be credited retroactively for a period of up to two (2) months.
Payment Obligation
Upon account activation, Abivia reserves space, equipment and resources for the customer's needs. The Customer must pay its account even if Customer is not making use of it.
Credit Authorization
The Customer hereby authorizes Abivia Inc. and gives consent to Abivia Inc. under applicable privacy laws for Abivia Inc. 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 Abivia Inc. such further documents and assurances and take such further actions as Abivia Inc. may from time to time reasonably request in order to carry out the intent and purpose of this Section.
Guaranteed Network Availability
Abivia Inc. will provide 100% transit to the Internet to all the customers who have purchased said service from Abivia Inc. Exclusions, terms and conditions of the guarantee are posted on our web site.
Guaranteed Electrical Power
Abivia guarantees the electrical power supply to the data centre 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
At any time, dysfunctional dedicated server hardware will be replaced within eight hours. Exclusions, terms and conditions of the guarantee are posted on our web site.
Zero Tolerance Spam Policy
Abivia takes a zero tolerance stance against the sending of unsolicited email. Users may not send unsolicited email which is email that is sent to recipients who have not opted-in to mailings from the user.
Users who send mass mailings must maintain complete and accurate records of all consents and opt-ins and provide such records to Abivia upon request. If a user cannot provide positive and verifiable proof of such consents and opt-ins, we will consider the mass mailing to be unsolicited. Users are prohibited from operating mailing lists that do not target an audience that has voluntarily signed up for email information using an opt-in process.
Any mailing list must also allow any party on the list to remove itself automatically and permanently and be operated in accordance with any applicable law or regulation.
Prohibited Material
Abivia does not allow any of the following to be hosted:
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Illegal Material - Includes transmission, distribution or storage of any material in violation of any applicable law or regulation. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property rights used without proper authorization or material that violates export control laws.
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Adult Material - Includes all pornography, erotic images, or otherwise lewd or obscene content. The designation of "adult material" is left entirely to the discretion of Abivia.
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Warez - Includes pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing, and encrypted or password protected versions of any of the above.
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Other Material - Includes material that is obscene, indecent, defamatory, or constitutes an illegal threat. Also includes material Abivia feels to be abusive or could affect the operation of the service or affect other users of the Internet.
Limitation of Liability
THE CUSTOMER ACKNOWLEDGES THAT ABIVIA INC. PERMITS OTHER CUSTOMERS TO INSTALL THEIR SOFTWARE AND EQUIPMENT IN THE PREMISES. ABIVIA INC. WILL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS, OR LOSSES INCURRED BY THE CUSTOMER (OR ITS CUSTOMERS) CAUSED BY SUCH OTHER LICENSEES' ACTS, EQUIPMENT, SOFTWARE, ACTIVITIES OR FAILURES TO ACT. THE LIMIT OF ABIVIA'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 ABIVIA INC. UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 3 MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL ABIVIA INC. BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
Force Majeure
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.
Backup copies
Abivia Inc. can, upon request and as a service upgrade involving monthly fees, provide backup service for dedicated server customers. The customers interested in such services must order it using the appropriate online form.
Reselling
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 Abivia Inc. 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 Abivia Inc., 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 Abivia Inc. 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 their servers.
Entire agreement
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, ABIVIA INC. 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 Quote, the Quote 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.
Governing Law and Jurisdiction
This Agreement is governed by the laws of the province of Ontario and the laws of Canada applicable therein. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the Province of Ontario or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
Changes and Rights
Abivia Inc. 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 Abivia Inc. may impose from time to time, provided that the Customer has been given 30 days notice.
