Article 1. Definitions1. 4allhost Canada: 4allhost.com. 2. Customer: the natural or legal person who has concluded an Agreement with 4allhost.com or to whom 4allhost.com has submitted a quotation for this purpose. 3. General Terms and Conditions: the present document. 4. Service: the specific service that 4allhost.com agrees with the Customer, as stated in the Agreement or quotation. 5. Agreement: the agreement between 4allhost.com and the Customer in accordance with which 4allhost.com will provide the Service. 6. Website: the website of 4allhost.com, reachable at www.4allhost.com. Article 2. Quotation, offer and acceptance1. The Customer can use the electronic ordering process on the Website to purchase the Service. The description and pricing of the Service is given on the Website and is binding. 2. The Customer is responsible for the accuracy and truthfulness of the details entered by the Customer during the ordering process. Also during the Agreement, it is the sole responsibilty of the Customer to keep his company information, name, address and other contact details up to date. 3. If details provided by the Customer prove to be incorrect, 4allhost.com has the right to adjust the prices accordingly. 4. The Agreement is at all times subject to these General Terms and Conditions. Provisions or terms and conditions laid down by the Customer that differ from or do not appear in these General Terms and Conditions are only binding on 4allhost.com if and to the extent that they have been expressly accepted by 4allhost.com in writing. 5. The Agreement runs from the time at which notice of acceptance by the Customer is received by 4allhost.com. Article 3. Provision of the Service1. Following the conclusion of the Agreement, 4allhost.com shall provide the Service in accordance with the quotation or electronic order as soon as possible, taking account of the reasonable wishes of the Customer. 2. Unless otherwise agreed in writing, 4allhost.com guarantees that it will provide the Service to the best of its ability, exercising due care and expertise. 3. If and to the extent that proper provision of the Service so requires, 4allhost.com has the right to arrange for certain activities to be carried out by third parties. 4allhost.com does not accept any liability for services provided by third parties. 4. The Customer is obliged to do and allow all that is reasonably necessary and desirable for timely and correct provision of the Service. In particular the Customer shall ensure that all the details that 4allhost.com states are necessary, or that the Customer should reasonably understand are necessary to provide the Service, are provided to 4allhost.com promptly. 5. 4allhost.com is permitted to make changes independently to the material supplied by the Customer without the prior consent of the Customer. 6. If this is part of the Service, 4allhost.com shall provide the Customer with an administrative user name and password. With these details the Customer has access to an administrative account and a management tool that the Customer can at the Customer’s own discretion use to manage delivery of the Service and accounts for individual users and to set the options and restrictions for these individual users of the Service, all within the limits indicated in the Agreement. The Customer shall pay all the charges arising from use of the service with the administrative user name and password. 7. Any action that takes place using the administrative account or an account of an individual user will be regarded as taking place under the responsibility and at the risk of the Customer. The Customer must report any suspicion of misuse of an account to 4allhost.com as soon as possible to enable the latter to take action. 8. 4allhost.com has the right to take products and services supplied (temporarily) out of service, and/or to restrict their use, or not to supply them or to restrict their supply, if the Customer fails to fulfil an obligation to 4allhost.com in respect of the Agreement or fails to act consistently with these terms and conditions. Article 4. Prices1. All prices are exclusive of turnover tax (GST/HST), unless otherwise stated on the Website. 2. All prices on the Website, in quotations, folders and other 4allhost.com documentation are subject to programming and typing errors. No liability will be accepted for the consequences of such errors. 3. If the Agreement is a continuing performance agreement, 4allhost.com is entitled to increase the rates charged at any time. 4allhost.com shall notify the Customer of rate changes, via the Website, in writing or by email, at least two (2) months in advance. In the event of a price increase, the Customer has the right to terminate the Agreement, subject to one (1) month’s notice. 4. All the costs arising for 4allhost.com under the Agreement are for the account of the Customer, provided that they are attributable to the Customer. Article 5. Hosting and related services1. If the Service (also) includes services relating to storage and/or forwarding of material supplied by the Customer to third parties, as in the case of web hosting or email services, the provisions laid down in this article also apply. 2. The Customer shall not publish or display any information through 4allhost.com that is in breach of Canadian law. In particular this includes but is not limited to information published without the consent of the copyright holder(s), information of a libellous, intimidating, offensive, racist, inflammatory or discriminatory nature, information containing child pornography and information that violates the privacy of third parties or results in any form of stalking, and also hyperlinks, torrents or other references to such information on sites of third parties anywhere in the world (even when the information would be legal in the jurisdiction concerned). 3. 4allhost.com shall employ a complaints procedure that allows third parties (‘complainants’) to submit a complaint where they feel that such a breach has taken place. If a complaint is justified in the judgment of 4allhost.com, 4allhost.com is entitled to remove or block the material. In that case 4allhost.com is also entitled to provide personal details of the Customer to a reporting party or the competent authorities. 4allhost.com shall inform the Customer about the proceedings. 4. 4allhost.com is entitled to report any potentially illegal information. To this end 4allhost.com can provide all relevant Customer details and the information in question to the competent authorities and take all other actions required by these authorities as part of the investigation. 5. In the event of repeated complaints about information published by the Customer, 4allhost.com is entitled to dissolve and/or terminate the Agreement. 6. The Customer shall indemnify 4allhost.com against all losses as a consequence of the above. 4allhost.com is not liable for any losses the Customer suffers as a result of intervention by 4allhost.com as part of the complaints procedure. 7. The Customer shall refrain from being a nuisance to other Customers or Internet users or causing damage to the servers. The Customer is not permitted to start up processes or programmes, whether or not via the server, that the Customer knows or can reasonably presume will be a nuisance to 4allhost.com, other Customers or Internet users or cause damage. 4allhost.com shall notify the Customer of any measures. Article 6. Domain names and IP addresses1. If the Service (also) includes mediation by 4allhost.com in obtaining a domain name and/or IP address for the Customer, the provisions laid down in this article also apply. 2. The provided information by 4allhost.com about the availability of domain names on the Website or the customer portal My 4allhost.com is purely indicative. The Customer can not derive any rights from this information during the order process. 3. Application, assignment and any use of a domain name and/or IP address are dependent on and subject to the applicable rules and procedures of the registration authorities concerned, including the ICANN and ARIN or RIPE. The authority concerned decides on the assignment of a domain name and/or IP address. 4allhost.com merely fulfils a mediating role in the application and does not give any guarantee that an application will be successful. 4. The Customer can only learn the fact of registration from the letter of confirmation from 4allhost.com, which states that the domain name requested has been registered, unless otherwise stated. An invoice for registration fees is not a confirmation of registration. 5. The Customer shall indemnify and compensate 4allhost.com for all losses connected with (the use of ) a domain name on behalf of or by the Customer. 6. The order of Customer to 4allhost.com to transfer a domain name, implies that the Customer is the owner of that domain name. By the order of the Customer to 4allhost.com to transfer a domain name, the Customer shall also indemnify and compensate 4allhost.com against all losses associated with (the use of) the domain name. 7. If the Customer is found not to be the owner of the domain name that the Customer orderered 4allhost.com to transfer, the Customer is in violation of section 6. Automatically and without prior proof of default, the Customer must pay 4allhost.com a fixed lump sum of $5.000,00 in damages. 8. 4allhost.com is not liable for the losses by the Customer of its right(s) to a domain name and/ or IP address or for the fact that the domain name and/or IP address have in the meantime been requested and/or obtained by a third party, except in the event of intent or gross negligence of 4allhost.com. 9. The Customer must comply with the rules that registration authorities lay down for application, assignment or use of a domain name and/or IP address. 10. 4allhost.com has the right to deny access to the domain name or make it unusable or to put it in its own name where the Customer is demonstrably in default in the fulfilment of the Agreement, such however only for the time that the Customer is in default and only on expiry of a reasonable period for fulfilment set in a written notice of default. 11. In the event of dissolution of the Agreement for breach of contract by the Customer, 4allhost.com is entitled to cancel the domain name and/or IP address subject to one month’s notice. Article 7. Resellers1. If the Service (also) includes the reselling, reletting or otherwise providing against payment (‘Reselling’) of products or services of 4allhost.com by the Customer to the Customer’s clients, the provisions laid down in this article also apply. 2. In the case of Reselling the Customer shall act in the Customer’s own name, for its own account and for its own risk and is not entitled to conclude agreements for, or on behalf of 4allhost.com, or to create the impression that the Customer is the agent or representative of 4allhost.com. 3. The Customer is free in the provision of its offering and prices to its clients, within the limits of 4allhost.com given in the quotation. 4. The Customer must impose at least the same obligations on its clients as 4allhost.com imposes on the Customer with regard to the product(s) or service(s) provided. 4allhost.com can demand that the Customer submits proof of this. 5. The failure of clients of the Customer to pay or pay on time does not discharge the Customer from the Customer’s payment obligations to 4allhost.com. 6. 4allhost.com shall only seek contact with clients of the Customer through the Customer, unless 4allhost.com has an urgent reason for approaching these clients directly, or the Customer gives consent for direct contact. (Impending) damage and nuisance for third parties as a result of the activities of clients is in any event an urgent reason. 7. The Customer is not entitled to use any trade name, brand name, logos or marks of 4allhost.com in promotional or commercial communication with a view to using the goodwill or good name of 4allhost.com for the canvassing of clients by the Customer. The Customer may however communicate in a businesslike manner that it uses products and/or services of 4allhost.com. 8. The Customer is at all times fully liable for everything that the Customer’s clients do, or fail to do, using the systems or networks of 4allhost.com or those of its 4allhost.coms. 9. In the event of dissolution of the Agreement for breach of contract by the Customer, 4allhost.com acquires the right to approach, to inform and possibly to take over the Customer’s clients. Article 8. Services1. Hardware and software support and other services shall be billed at the applicable hourly rate. The applicable hourly rate shall be published by 4allhost.com in advance. Support shall be charged by the hour, minimum purchase being one (1) hour unless otherwise agreed. In the case of requests for support where no SLA has been purchased, 4allhost.com cannot give any response time guarantees.
Article 9. Availability of the Service1. 4allhost.com shall make every effort to achieve uninterrupted availability of 4allhost.com’s systems and networks, and to provide access to data stored by 4allhost.com, but does not provide any guarantees unless otherwise agreed in the quotation or the electronic ordering procedure in the form of a an SLA designated as such. Unless this has been otherwise stipulated in such an SLA, the provisions laid down in this article apply to availability. 2. 4allhost.com shall make every effort to keep the software 4allhost.com uses up to date. In this regard 4allhost.com is however reliant upon its 4allhost.com(s). 4allhost.com is entitled not to install given updates or patches if in 4allhost.com’s opinion this will not aid proper delivery of the Service. 3. 4allhost.com shall make every effort to ensure that the Customer can use the networks that are directly or indirectly connected to the network of 4allhost.com. 4allhost.com cannot however guarantee that these networks (of third parties) will be available at any given time. 4. If in the opinion of 4allhost.com the operation of the computer systems or the network of 4allhost.com or third parties and/or of the services using a network is at risk, in particular as a result of excessive sending of email or other data, poorly protected systems or activities of viruses, trojans and similar software, 4allhost.com is entitled to take all the steps that 4allhost.com reasonably considers necessary to avert or prevent this risk. 12. 4allhost.com does not provide any backups for the Customer, unless the Customer has purchased an additional SLA. It is the sole responsibility of the Customer to make backups of the data stored at 4allhost.com. 4allhost.com exclusively makes backups for continuation purposes. This service is provided as a courtesy. 4allhost.com does not provide any guarantees on this service and can not be held liable for it. Article 10. Liability1. The liability of 4allhost.com for direct losses suffered by the Customer as a consequence of an attributable shortcoming by 4allhost.com in the fulfilment of its obligations under this Agreement, expressly including any shortcoming in the fulfilment of a guarantee obligation agreed with the Customer, or as a result of a wrongful act of 4allhost.com, 4allhost.com’s employees or third parties engaged by 4allhost.com, is limited per event or series of connected events to an amount equal to the payments that the Customer owes under this Agreement annually. 2. Under no circumstances however shall the total compensation for direct losses amount to more than $1,000. 3. The liability of 4allhost.com for indirect losses, including consequential loss, loss of profit, lost savings, loss of (business) data and loss through business stagnation, is excluded. 4. Outside the cases referred to in Article 10(1) 4allhost.com cannot be held liable for compensation, irrespective of the grounds on which a compensation action would be based. The maximum amount referred to in Article 10(1) shall however lapse if and to the extent that the loss is the consequence of intent or gross negligence of managerial staff of 4allhost.com. 5. The liability of 4allhost.com for attributable shortcomings in fulfilling the Agreement shall only arise if the Customer gives 4allhost.com immediate and proper notice of default in writing, in the process setting a reasonable time for resolving the shortcoming, and 4allhost.com fails imputably in the fulfilment of its obligations even after this time. The notice of default must contain the most detailed possible description of the shortcoming, so that 4allhost.com is able to respond adequately. 6. Under no circumstances is 4allhost.com liable for losses due to force majeure. 7. It is a condition for the existence of any right to compensation that in each case the Customer notifies 4allhost.com of the loss within 30 days of its occurrence in writing and by registered post.
Article 11. Faults and force majeure1. 4allhost.com has the right to take its systems, including the Website, or parts thereof temporarily out of service for the purposes of maintenance, modification or improvement. 4allhost.com shall endeavour to arrange for such taking out of service to take place as far as possible outside office hours and shall make every effort to notify the Customer of the planned taking out of service in good time. Under no circumstances however is 4allhost.com liable for compensation for losses in connection with such taking out of service. 2. 4allhost.com has the right to modify its systems, including the Website, or parts thereof from time to time to improve the functionality and to rectify faults. If a modification leads to a substantial change in the functionality, 4allhost.com shall make every effort to notify the Customer thereof. In the case of modifications that are relevant for several customers, it is not possible to forgo a given modification for the Customer alone. 4allhost.com is not liable for any compensation of losses due to such a modification. 3. In the event of the non-availability of the Service, due to faults, maintenance or other causes, 4allhost.com shall make every effort to inform the Customer of the nature and the expected duration of the interruption. 4. In the event of force majeure, which shall in any event include faults or failure of the Internet, the telecommunications infrastructure, SYN flood, network attack, DoS or DDoS attacks, power failures, internal civil commotion, mobilisation, war, obstruction in transport, strike, lockout, business disruptions, delay in supply, fire, flood, import and export impediments and in the event that 4allhost.com is prevented from supplying through its own 4allhost.coms, irrespective of the reason for this, as a result of which fulfilment of the Agreement cannot reasonably be required of 4allhost.com, the performance of the Agreement shall be suspended, or the Agreement shall be terminated when the force majeure situation has lasted more than 90 days, all without any obligation to pay compensation. Article 12. Term and cancellation1. The Agreement for a Service (with the exception of a one-time Service) is agreed upon for a period of 12, 24 or 36 months, unless otherwise agreed in writing. 2. The Service ends automatically upon expiry of the agreed period, unless the Customer chooses to prolong the Service for a new period as described in section 1 by means of the described procedure in the following sections 3, 4 and 5. 3. It is the sole responsibility of the Customer to be informed at all times about the expiry date of the Service and to take the initiative to prolong the Service for a new period. 4. If the Customer wishes to prolong the Service, the Customer can use customer portal my.4allhost.com of 4allhost.com to prolong the Service and to pay the charged amount. 5. Extension of the Service is only realized until 4allhost.com has processed all payment(s) by the Customer that sum up to the total amount owed by the Customer for the extention of the Service. Therefore it is required that the Customer ensures that 4allhost.com has received the total amount, at the very latest, 5 working days before the expiry date of the Service. 6. On cancellation, termination or dissolution for whatever reason, 4allhost.com is entitled immediately to delete all stored data or to deny access to it and to close all the accounts of the Customer. 4allhost.com is not obliged to provide the Customer with a copy of this data. 7. Unless expressly indicated in writing that they are deadlines, delivery periods given by 4allhost.com are always indicative. 4allhost.com is not in default, even in the event of an agreed deadline, until the Customer has given it notice of default in writing. 8. Exceeding agreed delivery periods for whatever reason does not give rise to any right to compensation, unless otherwise agreed in writing.
Article 13. Payment terms1. 4allhost.com shall send the Customer an invoice or pro forma invoice for the amount owed by the Customer. In case of a pro forma invoice, the Customer is not obligated to pay. The term of payment of any invoice is 14 days following the date of the invoice, unless otherwise stated on the invoice or otherwise agreed in the Agreement. 2. If 4allhost.com has sent a pro forma invoice, 4allhost.com will send a final invoice after the payment has been processed. 3. 4allhost.com is permitted to send (pro forma) invoices electronically. 4. Upon the expiry of 14 days after the term of payment, the Customer whose payment is overdue, is in default by operation of law without notice of default being required for this. If an amount owed is not paid within the term of payment, statutory interest is payable on the outstanding invoice amount without further notice of default by 4allhost.com. 5. In the event of overdue payment, the Customer, in addition to the amount owed and the interest thereon, is obliged to make reimbursement in full of both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies. 6. The action for payment is immediately due and payable in the event that the Customer is declared bankrupt, applies for court protection from creditors or total attachment orders are placed on assets of the Customer, the Customer dies and furthermore, if the Customer goes into liquidation or is dissolved. 7. In the above cases 4allhost.com also has the right to terminate or suspend performance of the Agreement or any part thereof not yet performed without notice of default or judicial intervention, without any right to compensation of losses for the Customer that might arise because of this. Article 14. Intellectual property rights1. All intellectual property rights to all the materials, software, analyses, designs, documentation, opinions, reports, quotations, and preparatory material thereof, developed or provided as part of the Service, are vested exclusively in 4allhost.com or its licensers. 2. The Customer shall only acquire the rights of use and powers arising from the scope of the Agreement or granted in writing, and otherwise the Customer shall not reproduce or publish the software or other materials. 3. The Customer is not permitted to remove from the materials or to amend any marking concerning copyrights, brands, trade names or other intellectual property rights, including markings concerning the confidential nature and secrecy of the materials. 4. 4allhost.com is permitted to take technical measures to protect the materials. If 4allhost.com has used technical protection to protect the materials, the Customer is not permitted to remove or to evade this protection. 5. Any use, reproduction or publication of the materials that is beyond the scope of the Agreement or rights of use granted will be regarded as a breach of copyright. The Customer shall pay 4allhost.com an immediately payable penalty that is not open to judicial moderation of $1,000 per breach, without prejudice to the right of 4allhost.com to obtain compensation for its losses on account of the breach or to take other legal action in order to terminate the breach. Article 15. Confidentiality1. The Parties shall treat information that they provide each other before, during or after the execution of the Agreement confidentially when this information is marked confidential or when the receiving party knows or must reasonably presume that the information was intended to be confidential. The Parties shall also impose this obligation on their employees and third parties engaged by them for the execution of the Agreement. 2. 4allhost.com shall not examine data that the Customer stores and/or distributes using the systems of 4allhost.com, unless this is necessary for proper performance of the Agreement or 4allhost.com is obliged to do so in pursuance of a legal provision or by court order. In that case 4allhost.com shall make every effort to limit the examination of the data as far as possible, to the extent that this lies within its power. Article 16. Processing of personal data1. On grounds of Canadian law (such as the law for Protection of Personal Data), Customer has commitments to third parties concerning the processing of personal data. Customer is obligated to inform involved parties and give them access to their personal data for inspection, correction and deletion. 2. The involved parties agree that, by the definition of the Canadian law for Protection of Personal Data and with regards to processing personal data, Customer is a ‘processor’. Customer is solely responsible for complying to the obligations involved with processing personal data by means of the Service or in any other way. 3. Customer declares to 4allhost.com that the processing of personal data will be performed in full compliance to Canadian law and that no rights of third parties will be violated. Customer also indemnifies 4allhost.com against any legal claim(s) from third parties, regardless on what account, if the claim is related to the processing of personal data. Article 17. Complaints1. Complaints about the execution of the Agreement, the performance of the Service or the working of other facilities must be submitted in writing. The Customer may expect a response to the complaint within five working days. Article 18. Changes to General Terms and Conditions1. 4allhost.com reserves the right to change or to supplement these General Terms and Conditions. 2. Changes also apply in respect of Agreements already concluded subject to a period of 30 days following publication of the change on the Website of 4allhost.com or by electronic communication. Changes of minor importance can be made at any time. 3. If the Customer does not wish to accept a change in these terms and conditions, it can terminate the Agreement up to the date on which the new terms and conditions come into force by this date at the latest. Article 19. Final provisions1. This Agreement is subject to Canadian Law. 2. Unless otherwise stipulated by the mandatory rules, all disputes arising from this Agreement shall be submitted to the competent Canadian court for the district in which the Supplier is 3. If any provision of this agreement proves to be invalid, this shall not affect the validity of the Agreement as a whole. The Parties shall in that case lay down (a) new provision(s) by way of replacement, which as far as is possible by law gives shape to the intention of the original Agreement and General Terms of Service. 4. The term ‘in writing’ in these General Terms Terms of Service includes email and communication by fax, provided that the identity and integrity of the email or fax are duly established. 5. The version of any communication, measurements made (such as data traffic, but not limited to this) and monitoring by 4allhost.com received or stored by 4allhost.com shall count as authentic, subject to evidence to the contrary to be provided by the Customer. 6. The Parties shall immediately notify each other in writing of any changes of name, postal address, email address, telephone number and if so required bank account number. 7. These General Terms and Conditions have been written in English and have been translated to other languages, such as Dutch. Should there be any difference in the content or intent in comparison to the English version, the English version is leading and binding. 8. The Customer is only entitled to transfer its rights and obligations under the Agreement to a third party with the prior consent of 4allhost.com in writing. 4allhost.com can do this without the consent of the Customer. |
