Service Agreement

This document clearly outlines procedures and restrictions for all clients.

Last updated: June 14, 2016

Action 3 Media Inc. strives to provide the best possible service to all our customers, but we will not tolerate any unlawful activity or abuse on our servers. We respect freedom of speech and expression unless it is harmful to others. These brief guidelines are imposed to protect you, other Action 3 Media Inc. customers and us against such harm.

In the absence of any other Agreement, you will have accepted this Policy and these Terms and be bound by them if you use any of the services offered by Action 3 Media Inc. (“Services”) or otherwise indicate your affirmative acceptance of such Services.

This Policy and these Terms may change from time to time. Action 3 Media Inc. will try to inform all of our customers of the changes and subject to applicable laws and this Agreement those changes will be effective after 30 days.

We reserve the right to refuse service to anyone for any reason not prohibited by law. Also we reserve the right to terminate service to any client for any reason not prohibited by law. Any deliberate attempt to cause damage to Action 3 Media Inc. or any other Internet servers will result in immediate account deactivation without prior notice. No refund will be issued in this case.

Payment Policies, Fees, Refunds and Terms of Agreement

Full payment is required before any service is rendered, which includes renewals. All payment-due notices will be sent by electronic mail. No bills or invoices will be sent by postal mail or fax. Prepayment is due each 1st of the month. Billing will continue automatically and indefinitely until you cancel your account for each applicable service. As a policy, we do not offer credits or refunds for service time already expended or on any company issued credit, such as a free month of hosting. Credit cards may be billed up to seven days in advance of the due date to assure that service will not be affected if there is a problem with the credit card. Action 3 Media Inc. considers all credit card or PayPal chargebacks for services rendered, or partially rendered, to be fraudulent. Such accounts will be assessed a $50 fee, per incident, and have their balance sent to a third-party collections agency. Please follow the refund procedures we have defined.

We do not give refunds for partial months unused, and billing is only done on full month terms. If you decide to cancel after prepayment, you will not receive a refund for the current month in use (we do not give partial months refunds). This only applies to cancellation by the client. If cancellation is done by Action 3 Media Inc. due to an account violation, there will be no refund. Additional features can be added at any time. Action 3 Media Inc. reserves the right to change prices at any time, but will notify all clients before such changes take place.

All customers will receive invoices on the due date of the payment and we will attempt to charge any credit card on file set as a default payment method automatically on the due date. After the due date, there is a 7 day grace period in which to fully pay the invoice, with an overdue notice being emailed every day. If payment is not made, or other adequate arrangement put in place, the account (including all paid services on the account) may be promptly shutdown after the 7th day. The system will be maintained in full working order, with the original data, for a period of at least one additional week. The customer is fully responsible for making sure payment is made in a timely manner and is fully responsible for keeping accurate billing information on file.

Access

You agree to allow us and our agents the right of access to equipment and data, as is reasonably needed, for purposes of installing, servicing, configuring, maintaining, inspecting, upgrading, replacing and removing the services and/or equipment used to receive any of the Services. In so doing Action 3 Media Inc. will take all reasonable care to insure the work is complete in a professional manner with minimal interruptions to Services. In all instances Action 3 Media Inc.’s liability will not exceed what is provided within this Agreement.

Cancellation

You may cancel at anytime, unless otherwise stated in a written contract or agreement. To cancel your service, please login to your account on our website or email [email protected] Notification of cancellation must be received at least one full week prior to your cycle date, with the cycle date being the 1st day of the month each month, in order to avoid charges in full for the next cycle. It is the client’s responsibility to secure email confirmation from Action 3 Media Inc. that the service has been cancelled. If the client has not yet received email confirmation of service cancellation, then the account remains active, and you will continue to be invoiced. Clients are responsible for all charges associated with a service until cancellation is verified via email.

If the client has a balance due at the time of cancellation, this balance must be paid in full and the cancellation may be refused until such a payment is made. Cancellation does not absolve client of any outstanding financial obligations. Action 3 Media Inc. reserves the right to go through a third-party collection agency to collect any overdue payments. All accounts sent to a third-party collection agency will have an additional fee of 38% of the amount owed added to cover the collections fees and other related expenses, subject to applicable laws.

Insurance

You are solely responsible for maintaining insurance coverage for any claims which may arise under this Agreement and for which you may be legally liable. It is your responsibility to adequately insure yourself against business interruption, loss of business or other losses. Action 3 Media Inc. shall not have responsibility to you for your failure to maintain sufficient insurance coverage. Action 3 Media Inc.’s liability shall not exceed that which is set forth in this Agreement.

Indemnification Policy

You agree to use all Action 3 Media Inc. services and facilities at your own risk. Action 3 Media Inc. specifically disclaims all warranties of merchantability and fitness for a particular purpose. In no event shall Action 3 Media Inc. be liable for any loss, or loss of data, or other commercial damage, including but not limited to special, incidental, consequential or other damages. The client agrees that it shall defend, indemnify, save and hold Action 3 Media Inc. harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against Action 3 Media Inc., its agents, its customers, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the client, it’s agents, employees or assigns. The client agrees to defend, indemnify and hold harmless Action 3 Media Inc. against liabilities arising out of:

  • Any injury to person or property caused by any products sold or otherwise distributed in connection with an Action 3 Media Inc. server;
  • Any material supplied by the client infringing or allegedly infringing on the proprietary rights of a third party;
  • Copyright infringement and
  • Any defective products sold to the client from an Action 3 Media server.

Action 3 Media Inc. shall be the sole arbitrator of what violates this policy.

Limitation of Liability

THE LIMIT OF ACTION 3 MEDIA INC.’S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE OR OTHERWISE TO CUSTOMER (OR ITS CLIENTS) 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 CUSTOMER TO ACTION 3 MEDIA UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 2 MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL ACTION 3 MEDIA BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.

Spam Policy

Action 3 Media is committed to a strict anti-spamming policy. Under this policy, we prohibit spam, or any unsolicited commercial email, from being sent either: Over the Action 3 Media Inc. network, by clients or any other users of the Action 3 Media Inc. network (including the client’s customers); AND/OR over ANY network – if the message sent advertises or mentions a site hosted on the Action 3 Media Inc. network.

We react quickly and seriously to violations, and we further reserve the right to terminate the services of any client disregarding this policy. Sending unsolicited commercial email (a.k.a. “spam”), cross-posting messages to a large number of usenet groups, posting obscene or threatening messages while using or referring to an email address or web site URL on Action 3 Media Inc.’s network is prohibited. The use of Action 3 Media Inc.’s network as a mail drop for responses to activities described above is also prohibited. Accounts cancelled due to spam will be billed a “clean up” fee of $100 along with a potential fee of $50 per mailing/complaint if they are deemed to be unresponsive to our requests.

If you have any complaints or comments regarding spam on our network, please email [email protected]

Note: Action 3 Media Inc. explicitly reserves its right to act in accordance with this policy in all instances. However, we will generally not suspend an account due to a single violation. In general, we will first attempt to work with you to resolve the situation. If problems persist or there is no cooperation the account may be suspended and have the above charges applied. As a web host we understand you may not have control of all your users/clients and we are more than happy to work with you as long as you are cooperative. We give all clients the right to defend themselves before accounts are permanently suspended or charged the specified clean-up fees.

Content Policy

All services provided by Action 3 Media Inc. may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any Canadian law is prohibited. This includes, but is not limited to: copyrighted material, trademark, intellectual property, material that promotes any illegal activity, or material protected by trade secret and other statutes without proper authorization. Action 3 Media Inc. will comply with all requirements of all Federal and Provincial laws and regulations and will comply with orders of any court of competent jurisdiction or regulatory agency with authority over Action 3 Media Inc. or its business. The subscriber agrees to indemnify and hold harmless Action 3 Media Inc. from any claims resulting from such compliance or the use of the service which damages the subscriber or any other party.

Examples of unacceptable content include, but are not limited to, the following:

  • Pirated software, including warez or any other commercial software which you do not have the legal right to distribute;
  • Serial numbers and CD keys for commercially available software which you do not have the legal right to distribute;
  • Music (.mp3, .wma, .ogg, etc.), Movies and Television shows (.mpg, .avi, .wmv, etc.), images (.jpg, .gif, .png, etc.) or compressed files or archives containing such files (.zip, .rar, .tar, etc.) which you do not have the legal right to distribute;
  • Child pornography, rape, or bestiality;
  • Security circumvention software or archives;
  • Any content that facilitates in identity theft, credit card fraud, or any other type of fraud;
  • Torrent files and trackers that facilitate the download of any materials included in this list;
  • Any software that facilitates any activity prohibited in this policy.

Any illegal activity may result in your site being suspended immediately, without notification. Any sites breaking the above rules will be subject to a $100 clean-up fee if they are deemed to be unresponsive to our requests.

Action 3 Media Inc. will be the sole arbiter as to what constitutes a violation of this provision.

Action 3 Media Inc. is a strong believer in everyone’s right to practice free speech and we do not feel that it is our obligation to rid the Internet of any material which others feel may be inappropriate or offensive. We feel that the right of free speech supersedes any other claims of content being inappropriate or offensive as those terms are subjective, while the laws of the Canada are quite clear. As long as the content is legal, we will not suspend your account without notice, though we do reserve the right to refuse hosting to any party for any reason with proper notice being given.

System and Network Security

Violations of system or network security are strictly prohibited, and may result in criminal and civil liability. Action 3 Media Inc. investigates all incidents involving such violations and will cooperate with law enforcement if a criminal violation is suspected.

Examples of system or network security violations include, but are not limited to, the following:

  • Introduction of malicious programs into the network or server (example: viruses, worms, Trojan Horses and other executables intended to inflict harm);
  • Effecting security breaches or disruptions of Internet communication and/or connectivity. Security breaches include, but are not limited to, accessing data of which the client is not an intended recipient or logging into a server or account that the client is not expressly authorized to access. For purposes of this section, “disruption” includes, but is not limited to, port scans, ping flooding, email-bombing, packet spoofing, IP spoofing and forged routing information;
  • Executing any form of network activity that will intercept data not intended for the client’s server;
  • Circumventing user authentication or security of any host, network or account;
  • Interfering with or denying service to any user other than the client’s host (example: denial of service attack or distributed denial of service attack);
  • Using any program script/command, or sending messages of any kind, designed to interfere with or to disable a user’s terminal session, via any means, locally or via the Internet.

Inadequate security, insecure/unpatched software, insecure passwords, etc. are not the responsibility of Action 3 Media Inc.. The client is responsible for assuring that their account is as secure as possible and the account holder accepts all responsibility for actions taken using their allocated resources, whether they are authorized or not. The account holder on file agrees to be held responsible for all bandwidth overage fees, clean-up fees, and managed service fees.

Scripting/IRC Policy

Action 3 Media Inc. prohibist the running of any specific IRCd, eggdrop, IRC related scripts, programs, or bots.

Backups

No guarantees are made of any kind, either expressed or implied, as to the integrity of our backups or backup services. It is the clients’ responsibility to maintain local copies of their content and other stored information. If loss of data occurs due to a failure on Action 3 Media Inc.’s part, we take reasonable action to recover the data in-house at no charge to the client. If data loss occurs due to negligence of client in securing their account, by an action of the client, or any actions not under the direct control of Action 3 Media, Action 3 Media Inc. will have no liability.

User Information

It is the responsibility of the client to assure that the complete contact and billing information on-hand is up-to-date and accurate, including full mailing address and a list of authorized contacts. Action 3 Media Inc. will contact users via the email addresses and/or phone numbers entered by the user and will not be held responsible for the accuracy of this information. Action 3 Media Inc. provides a direct way for all users to verify this information through the control panel. Support services are only rendered to those users whose information is on file as an authorized contact on the account.

Representation and Warrantee of Age

You represent and warrant that you are at least 18 years of age.

Reservation of Rights

Action 3 Media Inc. reserves all rights not specifically granted herein.

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.

No Waiver

No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

Severability

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 Laws

This Agreement will be governed and interpreted by the laws of the Province of Quebec, Canada without regard to its conflicts of law provisions. The parties hereby irrevocably and unconditionally attorn to the non-exclusive jurisdiction of the courts of the jurisdiction where the Premises are located, and all courts competent to hear appeals therefrom.

Entire Agreement

This Agreement supersedes all previous Agreements and Service Agreement Addendums between the parties. This Agreement and any subsequent Service Agreement Addendums 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, ACTION 3 MEDIA 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.

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