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TERMS OF SERVICE
THIS AGREEMENT
BETWEEN euGenius Enterprises (hereinafter referred to as "euGenius")
and Account Holder (hereinafter referred to as "User")
WHEREAS euGenius provides the
service (the "Service") of hosting World-Wide-Web sites in exchange for valuable
consideration by the User;
AND WHEREAS User desires to
subscribe to the Service on the terms and conditions contained herein;
NOW THEREFORE in consideration of the
mutual covenants and agreements contained in this Agreement and other good and
valuable consideration (the receipt and sufficiency of which are hereby
irrevocably acknowledged by the parties) euGenius and User agree as follows:
1.
The Service. EuGenius agrees to provide User with storage space on the euGenius
server for the purpose of hosting a world-wide-web site (the "Site")
in the prescribed amount of:
a.
in the instance of the EUGENIUS
BASIC PLAN, 50 mega-bytes (MB);
b. in the instance of the EUGENIUS STANDARD PLAN, 100 MB; or
c. in the instance of the EUGENIUS PRO PLAN, 200 MB
3.
Limitations. The Service is subject to the following limitations:
a.
File Size. Files larger than 256 kilobytes are not permitted on
the EUGENIUS servers, with the exception of Computer Gateway Interface (CGI)
scripts stored in USER's CGI Bin directory. Such CGI
files may be up to 1 MB;
b.
CPU Resources. User acknowledges that the Service is provided
on a shared server and agrees not to engage in any activity that could
overwhelm the server with heavy CPU usage or that requires a disproportionate
amount of the resources of the euGenius server, including without limitation,
use of highly active CGI scripts or chat scripts;
c.
File Types. In the instances of the EUGENIUS
BASIC and EUGENIUS STANDARD PLAN,
User shall not host multi-media file types, including but not limited to MP3,
Mpeg, AVI, Real Audio, Real Video, Quick Time, Windows
Media and / or PDF files. User shall also not host executable binaries and / or
compressed file types including but not limited to .EXE, .ZIP, .TAR, .RAR,
.GZIP;
d.
User shall not include content, or internet links to content on
the Site that contain, promote or involve any of the following:
i. any infringement of
copyright, trademark, patent, trade secret or other intellectual property
right;
ii. nudity or pornography;
iv. content that exploits children under
18 years of age;
v. hate propaganda;
vi. racist, threatening, or otherwise
abusive content;
vii. the promotion or incitement of, or
instruction for, the commission of illegal activities;
viii. mail fraud, multi-level marketing
(pyramid) schemes or any other fraudulent activities;
ix. content promoted through the sending
of unsolicited e-mail (also known as spamming);
x. sending of unsolicited e-mail (spam) from the EuGenius server,
or any other server that refers to content on the EuGenius server, or sending
such e-mail with a EuGenius' hosted Web site listed as the contact address;
xi. warez,
cracks, hacks, spam software & their associated utilities;
xii. in the instance of the EUGENIUS
BASIC and STANDARD PLAN, mpeg layer two or three files (MP2 or MP3);
xiii. information or other material that
contains a virus, corrupted data or any other harmful or damaging component;
xiv. in the instance of the EUGENIUS
BASIC PLAN, storage of log files on non-html content;
xvi. in the instance of the EUGENIUS
BASIC PLAN, any binary files that are not linked to an html page on the Site;
e.
Idem. User agrees that
euGenius is not responsible for content
on pages hosted on member sites and acknowledges that euGenius does not endorse
or verify any such material;
f.
Idem. User agrees to assume full responsibility for all files
associated with the Site and acknowledges that User may be held legally for the
contents of the Site;
g.
Backup and Monitoring. User is solely responsible for creating
backups of any files associated with the Site and for monitoring the Site;
h.
Notice to Officials. If
euGenius determines that law enforcement
officials should be notified regarding potentially illegal content on the Site,
User agrees that euGenius may provide copies of User's web pages to the
appropriate officials without notice to user. euGenius will cooperate with all
law enforcement efforts to locate persons who have posted content that is
illegal or promotes illegal conduct;
i.
Policies and Guidelines. User agrees to abide by all policies or
guidelines, together with any amendments thereto, set out, from time to time,
by euGenius anywhere on the site www.euGeniuses.net;
4.
In the instance of EUGENIUS WEB MAIL, the following provisions apply:
a.
Responsibility of the User. User is solely
responsible for the content of their e-mail messages. User is not permitted to
transmit messages on the E-mail service that (a) infringe on any third party's
intellectual property or proprietary rights, or rights of publicity or privacy;
(b) violate any law, statute, ordinance or regulation; (c) are defamatory,
trade libelous, threatening, abusive, or obscene in the opinion of EuGenius;
(d) contain viruses or other similar harmful or deleterious programming
routines; (e) contain links to any sites that include any of that kind of
content; or (f) refer to or contain any matter referred to in paragraph 3d of
this Agreement.;
b. Account Size. User's email box may store no more than 5 (five) MB of email. When User's account approaches the maximum email box size, EuGenius shall notify User by email that User's account is approaching full capacity. If User does not subsequently delete email box contents to reduce email box size, then any further emails sent to User which results in User's email box exceeding maximum capacity will be returned to sender without notice to User. Mailbox storage limits may fluctuate with custom hosting plans.
c.
Spamming is Prohibited. euGenius will determine
in its sole discretion whether any of the messages sent by User are considered
as being spam. Spamming generally includes sending any form of email that can
be interpreted as junk email or bulk email that the recipient has not
specifically requested from User. EuGenius reserves the right to take legal and
technical remedies to prevent User from sending spam. If User is found to be
sending spam, User's account may be terminated without notice;
d.
Privacy of User's Mailbox. euGenius considers User's registration
data and the content of all User's messages to be
private. Messages that User sends will be received with User's name and
Internet Protocol (IP) address contained within the header of the e-mail
message. euGenius will not intentionally monitor or disclose any of User's
email messages or registration data unless euGenius believes in good faith that
euGenius is required to do so (i) to enforce these
Terms of Service, (ii) by law, (iii) to defend euGenius in any action, or (iv)
to protect euGenius property. Additionally, User must agree to respect the
privacy and confidentiality of others. Since privacy is, in part, a function of
User's passwords, euGenius encourages user to change passwords frequently and
to not share them with anyone;
e.
Privacy of your Registration Data. User understands that
the E-mail services are supported by advertising and euGenius will disclose
statistics about our aggregate registration information in connection with our
marketing activities;
f.
Registration Data. User agrees to provide
euGenius with current,
complete, and accurate registration information in the registration process and
to maintain and update registration information as necessary to keep it
current, complete and accurate;
g.
Personal Use. User agrees to be fully liable for the use of
User's mailbox, including any unauthorized use of mailbox by a third party.
User agrees to notify euGenius immediately if User becomes aware of any
unauthorized use of mailbox;
h.
E-mail Retention. User must remember to check their mailbox for
messages frequently. All email that User receives in their mailbox that is not
opened for more than 60 (sixty) days will be deleted and unrecoverable;
i.
Mailbox Activity. User must remember to login to the E-mail
service frequently. If User has not logged in to their mailbox for a period of
more than 60 (sixty) days60 (sixty) days, unless otherwise specified, euGenius
may classify User's mailbox as inactive. euGenius may delete any existing mail,
whether it is opened or not, in User's mailbox if mailbox is inactive. In
addition, euGenius may return incoming mail as "undeliverable" if
User's mailbox is inactive. During any time period when User is subscribing to
the euGenius premium service offerings (EUGENIUS PRO PLAN ), euGenius
will not classify User's mailbox as inactive, and account will not be deleted;
j.
Cancellation of Mailbox. If User's mailbox is cancelled by User or
by euGenius, all email, including any attachments will automatically be
deleted; and
k.
Proprietary Rights. User agrees and acknowledges that they may not upload, post, reproduce, or distribute any content on or
through the E-mail service that is protected by copyright or other proprietary
right of a third party, without obtaining the permission of the owner of such
right. Any copyrighted or other proprietary content distributed with the
consent of the owner must contain the appropriate copyright or other
proprietary rights notice. The unauthorized submission or distribution of
copyrighted or other proprietary content is illegal and could subject User to
personal liability or criminal prosecution.
5.
Amendments. User agrees to be bound by any amendments to this Agreement
that are set out, from time to time, by euGenius anywhere on the site www.euGeniuses.net .
6.
No Representations or Warranties. The Service is offered on an "as
is" basis without any representations or warranties of any kind either
expressed or implied. For greater certainty and without limitation to the
generality of the foregoing:
a.
euGenius makes no
representations, warranties or guarantees of any kind whether written or verbal
regarding the reliability of the Site provided or any other services offered;
b.
euGenius is not responsible for any deletion, alteration, or loss
of data due to network or system outages, file corruption, accidental deletion,
or any other reasons;
c.
euGenius makes no representations, warranties or guarantees with
regards to server reliability, speed or consistency;
d.
euGenius makes no representations, warranties or guarantees as to
the accurateness or correctness of any content on any of the Sites and is not
responsible for any errors or omissions arising from the use of such
information;
e.
euGenius may link to or include on its Web resources, information
provided by third party partners and providers. euGenius does not guarantee or
warrant the reliability of this information nor does EuGenius recommend any of
these services;
f.
User expressly agrees that use of the E-mail service is at their
sole risk. The E-mail services are provided on an "as is" and
"as available" basis. euGenius may change the features or
functionality of the E-mail services at any time, in our sole discretion. euGenius
expressly disclaim all warranties of any kind, whether express or implied,
including, but not limited to the implied warranties of merchantability,
fitness for a particular purpose and non-infringement;
g.
euGenius makes no
warranty the E-mail services will meet User's requirements, or that the E-mail
services will be uninterrupted, timely, secure, or error free; nor does euGenius
make any warranty as to the results that may be obtained through the E-mail
service or that defects in the software will be corrected;
h.
User understands and agrees any material and/or data downloaded or
otherwise obtained through the use of the E-mail service is done at their own
discretion and risk and User will be solely responsible for any damage to their
computer systems or loss of data that results from the download of such
material and/or data;
i.
euGenius makes no
warranty regarding any goods or services purchased or obtained through the
E-mail service or any transactions entered into through the E-mail service; and
j.
No advice or information, whether oral or written, which User
obtains from euGenius or through the E-mail services shall create any warranty not
expressly made herein.
7.
Limitation of Liability. euGenius is not responsible for any failures,
delays, or interruptions in the delivery of any content or services contained
on the euGenius server; or losses or damages arising from the use of the
content or services provided by euGenius. For greater certainty and without
limitation to the generality of the foregoing:
a.
euGenius liability to
User for actual damages for any cause whatsoever, regardless of the form of
action will be limited to a maximum of the fees paid by User to euGenius, if
any, for the prior 12 months;
b.
in no event will euGenius be liable to User for any indirect,
incidental, or consequential damages arising out of the Service or in
connection with the Site or any other services or products provided to User;
c.
euGenius, its
officers, directors, owners, agents and employees, shall in no way be liable to
User or anyone else for any loss or injury resulting from use of the Service or
the Site;
d.
in no event shall euGenius be liable for any damages, whatsoever,
as a result of the notifying of any official of potentially illegal content on
the Site, providing copies of User's said Site to the appropriate officials or
cooperating with law enforcement efforts to locate persons who have posted content
that is illegal or promotes illegal conduct;
e.
In no event shall euGenius be liable for any damages, whatsoever,
as a result of the termination of this Agreement pursuant to Article 8.
8.
Indemnity. User agrees to indemnify and hold euGenius harmless from and
against, and to reimburse euGenius with respect to, any and all losses,
damages, liabilities, claims, judgments, settlements, fines, costs and expenses
(including reasonable related expenses, legal fees and costs of investigation)
or every nature whatsoever incurred by euGenius by reason of or arising out of
or in connection with (i) any breach of this
Agreement by User; (ii) any infringement of any copyright, trade-mark, patent,
trade secret or any other intellectual propriety right of any party by content
on the Site; or (iv) illegal, libelous, or defamatory content on the Site.
9.
Termination.
a.
Either euGenius or User may terminate this Agreement at any time
upon providing five business days prior notice to the other party.
b.
euGenius may terminate this Agreement, discontinue the Service and
delete the Site at any time without notice to User in any of the following
circumstances:
i. User violates any term of this Agreement, any
municipal, provincial or federal laws or regulations, or any policy or
guideline set out, from time to time, by euGenius anywhere on the site www.euGeniuses.net;
ii. User engages in conduct or posts material on the Site that
euGenius
in its sole discretion believes is harmful to other Users, the business of euGenius
or any third-party;
v. User engages in any activity that could overwhelm the server
with heavy CPU usage or that requires a disproportionate amount of the
resources of the euGenius server;
vi. User disputes the terms of this Agreement or any amendment set
out, from time to time, by euGenius anywhere on the site www.euGeniuses.net
vii. euGenius receives any complaints regarding User or the Site
from any other Users or third parties.
c.
In the instance of euGenius premium services, namely, EUGENIUS
PRO PLAN, the following conditions apply where this Agreement is
terminated by User:
i. All premium service packages are subject to an
unconditional 30 (thirty) day money-back guarantee. Any premium service package
cancelled within 30 (thirty) days of activation will be refunded in full less a
$10 USD (ten U.S. dollars) set-up fee and any additional shipping and handling
charges;
ii. Where User elects to receive software associated with any of
the euGenius premium services, said software must be returned to euGenius
unopened and in its entirety before any refund will be issued. If software has
been opened or is otherwise incomplete, User will not receive any refund;
iii. The refund policy described in sub-paragraphs c.i. and c.ii. does not apply to
any additional services including but not limited to domain name registration,
domain name pointing, additional e-mail accounts, additional disk storage space
or additional data transfer;
iv. All requests for cancellation must be sent in writing by
facsimile or post to the head office of euGenius. Receipt of such request will
be confirmed by euGenius;
v. Cancellation requests made by telephone or e-mail will not be
accepted by euGenius; and
vi. Any account cancelled or deactivated for violation of any term
of this Agreement is not eligible for refund as described in paragraph 9c.
d.
Following termination of this Agreement, for any reason, User
agrees not to use the Service or the Site in any manner or for any reason.
10.
Assignability. This Agreement is
assignable to a third party by EuGenius, with notice to User. Such notice shall
be made known on the Web site http://www.euGeniuses.net.
11.
General.
a.
Consent to Breach Not Waiver. No term or provision of
this Agreement is deemed waived and no breach excused, unless the waiver or
consent is in writing and signed by the party claiming to have waived or
consented. Any consent by any party to, or waiver of, a breach by the other,
whether expressed or implied, does not constitute a consent
to, waiver of, or excuse for, any other different or subsequent breach.
b.
Governing Law. This Agreement is governed by and construed in
accordance with the applicable laws of the State of
c.
Severability. If any provision of this Agreement is held to
be invalid, illegal or unenforceable, all other provisions will nevertheless
continue in full force and effect.
d.
Entire Agreement. This Agreement, together with all policies,
guidelines and amendments set out, from time to time, by euGenius anywhere on
the site www.euGeniuses.net ,
constitutes the entire agreement between the parties with respect to the
subject matter of the Agreement and supersedes all previous negotiations,
proposals, commitments, writings and understandings of any nature whatsoever,
whether oral or written.
e.
Survival. Any terms and conditions of this Agreement which by their
nature extend beyond the term or expiry of this Agreement shall survive the
termination or expiry of this Agreement. This includes, without limitation,
Article 6 (No Representations or Warranties), Article 7 (Limitation of
Liability), Article 8 (Indemnity), Article 10 (Assignability)
and this Article 11 (General).
f.
Headings. The headings and captions used in this Agreement are
inserted only as a matter of convenience and for reference and in no way are to
be construed as defining, limiting, or describing the scope or intent of this
Agreement.
g.
Remedies Cumulative. Unless otherwise set out in this Agreement the
rights and remedies granted to each party under this Agreement are cumulative
and are in addition to each party's rights provided by law or otherwise. Each
party may exercise its rights concurrently or separately. The exercise of one
remedy is not deemed an exclusive election of that remedy, nor does it preclude
the exercise of any other remedy.
h.
Counterparts or Electronic Acceptance. This Agreement may be
executed in counterparts, each of which is deemed to be an original and all of
which together are deemed to be one and the same instrument, or may be executed
by indicating assent through electronic means.
12.
Right to Refuse Service. euGenius reserves the right to refuse services
to any User in the event that User does not abide by the provisions set out
in this Agreement. If euGenius deems the User to be a hindrance on business,
the User will be "blacklisted" and euGenius will not in the future,
provide any services to User. In any such event, euGenius will give User 15
(fifteen) Calendar days notice to find another provider for their web hosting
needs.
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