Skyfirst Multimedia Services
Skyfirst Multimedia's services include, but are not limited to:
- any act of preparing, setting up, connecting, maintaining, terminating, or reconnecting customers' account (including all billing data and the space on the particular Web server that Skyfirst Multimedia provides to customers);
- any use by customers, or any access provided to customers by Skyfirst Multimedia, of computing, telecommunications, software, information, hardware, and equipment;
- any act, or provision of any service, by Skyfirst Multimedia to customers, related to Web hosting and domain name registrations (including server usage and technical support), regardless of duration and whether paid for or not;
- any provision by Skyfirst Multimedia to customers, of any space, Internet connectivity, or electrical power;
- any access or use related to the Skyfirst Multimedia's Web site, including the Web site itself;
- any other service mentioned in the TOU;
- any other service provided by Skyfirst Multimedia to customers, whether used or not;
- any other Skyfirst Multimedia services that are used by customers, whether offered or provided by Skyfirst Multimedia to customers.
Ownership of Web Site
The legal owner of customers' Web sites and accounts with Skyfirst Multimedia will be the individual or organization whose name is listed in Skyfirst Multimedia's database as the owner. Customers will fully cooperate with and abide by any and all of Skyfirst Multimedia's security measures and procedures in the event of any dispute over ownership of customers' Web sites and accounts with Skyfirst Multimedia.
Skyfirst Multimedia servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Additionally, in purchasing Skyfirst Multimedia services, all Skyfirst Multimedia customers certify that they and/or the organization they represent in procuring services from Skyfirst Multimedia are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a 'suspected terrorist' as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto.
Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming") is prohibited, regardless of whether or not it overloads a server or disrupts service to Skyfirst Multimedia's customers. The term "spamming" also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a Web site hosted on a Skyfirst Multimedia server, and selling or distributing software (on a Web site residing on a Skyfirst Multimedia server) that facilitates spamming. Violators will be assessed a minimum fine of CAD$300 and will face immediate suspension. Skyfirst Multimedia reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
System and Network Abuse
Violations of system or network security are prohibited and may result in criminal and civil liability including a fine of CAD$750 per incident. Examples of system or network security violations include, without limitation the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
Viruses and Other Destructive Activities
Use of Skyfirst Multimedia's services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use Skyfirst Multimedia's services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.
The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding the use of copyrighted materials on the Internet. All Skyfirst Multimedia customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a Skyfirst Multimedia customer (per the DMCA) to Skyfirst Multimedia must follow the below procedures. Copyright infringement notifications submitted to Skyfirst Multimedia according to these procedures will be processed in a timely manner. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at Skyfirst Multimedia's sole discretion.
DMCA Copyright Infringement Notification Requirements
- Signature of the copyright owner or a person authorized to act on the copyright owner's behalf (the "Claimant").
- Identification of the copyrighted work(s) claimed to have been infringed.
- Identification of the material claimed to infringe the copyright(s), and enough information for Skyfirst Multimedia to locate it including URLs and specific descriptions of the infringing material at each URL.
- The Claimant's name, address, and telephone number(s).
- A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
- A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.
- Mail the notification to:
Skyfirst Multimedia, LLC
61 Station Road,
Canada, E4L 1K7
Pornography and sex-related merchandising are prohibited on Skyfirst Multimedia servers. This includes sites that may infer sexual content or provide links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet, or provide links to such sites.
The use of Skyfirst Multimedia's services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Skyfirst Multimedia is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services.
Skyfirst Multimedia is concerned with the privacy of on-line communications and Web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Skyfirst Multimedia urges its customers to assume that all of their on-line communications are insecure. Skyfirst Multimedia cannot take any responsibility for the security of information transmitted over Skyfirst Multimedia's facilities.
Customers are required to use the Skyfirst Multimedia network responsibly. This includes respecting the other customers of Skyfirst Multimedia. Skyfirst Multimedia reserves the right to suspend and/or cancel service with any customer who uses the Skyfirst Multimedia network in such a way that adversely affects other Skyfirst Multimedia customers. While Skyfirst Multimedia may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, Skyfirst Multimedia does not monitor its customers' communications or activities to determine whether they are in compliance with the TOU. However, when Skyfirst Multimedia becomes aware of any violation of the TOU or other user agreements, Skyfirst Multimedia may take any action to stop or correct such violation, including, but not limited to, denying access to Skyfirst Multimedia's services and equipment or to the Internet. In addition, Skyfirst Multimedia may take action against a customer or a customer of such customer because of the activities of such customer. Skyfirst Multimedia anticipates that customers who offer Internet services will cooperate with Skyfirst Multimedia in any corrective or preventive action that Skyfirst Multimedia deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of Skyfirst Multimedia policy and Skyfirst Multimedia reserves the right to take any such action even though such action may affect other customers of the Skyfirst Multimedia customer.
Actions Taken by Skyfirst Multimedia
The failure by a customer to meet or follow any of the TOU is grounds for account deactivation. Skyfirst Multimedia will be the sole arbiter as to what constitutes a violation of the TOU. Skyfirst Multimedia reserves the right to remove any account without prior notice and to refuse service to anyone at any time. When Skyfirst Multimedia becomes aware of an alleged violation of its TOU, Skyfirst Multimedia will initiate an investigation. During the investigation, Skyfirst Multimedia may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, Skyfirst Multimedia may, at its sole discretion, restrict, suspend, or terminate a customer's Web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, Skyfirst Multimedia will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. Skyfirst Multimedia does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Skyfirst Multimedia.
Skyfirst Multimedia customers agree to protect, defend, hold harmless, and indemnify Skyfirst Multimedia, any third party entity related to Skyfirst Multimedia (including, without limitation, third party vendors), and Skyfirst Multimedia's executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and co-subsidiaries with the same parent company as Skyfirst Multimedia, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all legal fees and expenses, arising out of or resulting in any from the customer's use of Skyfirst Multimedia's services.
The Skyfirst Multimedia service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Skyfirst Multimedia expressly disclaims any representation or warranty that the Skyfirst Multimedia service will be error-free, secure or uninterrupted. No oral advice or written information given by Skyfirst Multimedia, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. Skyfirst Multimedia and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.
Termination for Bankruptcy or Insolvency
If a customer becomes insolvent or any bankruptcy petition is filed by the customer, or any third party against the customer, Skyfirst Multimedia may immediately terminate provision of Skyfirst Multimedia's services to the customer without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against Skyfirst Multimedia in such event. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, WILL Skyfirst Multimedia (INCLUDING, WITHOUT LIMITATION, Skyfirst Multimedia'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, CO-SUBSIDIARIES WITH THE SAME PARENT COMPANY AS Skyfirst Multimedia, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING Skyfirst Multimedia'S SERVICES, BE LIABLE FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS, REVENUES DECREASE, EXPENSES INCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR Skyfirst Multimedia SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF ANY USE OF, OR ANY INABILITY TO USE, ANY Skyfirst Multimedia SERVICES EVEN IF Skyfirst Multimedia HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Skyfirst Multimedia'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR Skyfirst Multimedia'S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY Skyfirst Multimedia OR Skyfirst Multimedia'S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE 3-MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE.
Skyfirst Multimedia may discontinue, upgrade, replace, modify, or change in any way, without limitation, any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with Skyfirst Multimedia's services. Certain changes to Skyfirst Multimedia's services may affect the operation of customers' personalized applications and content. Each customer is solely responsible, and Skyfirst Multimedia is not liable, for any and all such personalized applications and content, except as expressly agreed to by Skyfirst Multimedia.
Backup of Data
Except where Skyfirst Multimedia has expressly agreed in writing to the contrary, customers are solely and entirely responsible, and Skyfirst Multimedia is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that customers use in connection with Skyfirst Multimedia services.
Third Party Licenses
Skyfirst Multimedia makes a reasonable effort to provide customers with technologies, developments, and innovations (collectively "Technologies"), part of which may be licensed, or co-branded, from or by, third party entities. However, Skyfirst Multimedia makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of such Technologies. Moreover, Skyfirst Multimedia specifically disclaims all warranties of merchantability and and fitness for a particular purpose for such Technologies. Furthermore, no customer will hold Skyfirst Multimedia liable in any way for the revocation of any license, which has been licensed to Skyfirst Multimedia. The use of the Technologies obtained from or through Skyfirst Multimedia, or any other referred third party, whether directly or indirectly, is at the sole risk of customers.
Non-Skyfirst Multimedia Products
Any mention of non-Skyfirst Multimedia products by Skyfirst Multimedia, its employees, or any third party entity related to Skyfirst Multimedia is for information purposes only and does not constitute an endorsement or recommendation by Skyfirst Multimedia. Skyfirst Multimedia disclaims any and all liabilities for any representation or warranty made by the vendors of such non-Skyfirst Multimedia products or services.
Skyfirst Multimedia's Intellectual Property
Customers will not, without Skyfirst Multimedia's express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on Skyfirst Multimedia's Web site, and customers will not use any of Skyfirst Multimedia's trademarks, service marks, copyrighted materials, or other intellectual property without Skyfirst Multimedia's express written consent. Customers will not, in any way, misrepresent their relationship with Skyfirst Multimedia, attempt to pass themselves off as Skyfirst Multimedia, or claim that customers are Skyfirst Multimedia.
Customers may not assign or delegate their rights or obligations under the TOU or other agreement for Skyfirst Multimedia's services, either in whole or in part, without the prior written consent of Skyfirst Multimedia.
Minimum Age Requirement
Skyfirst Multimedia customers must be at least 18 years of age. Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the TOU in order for the Minor to become a Skyfirst Multimedia customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for Skyfirst Multimedia services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains Skyfirst Multimedia's express written consent to the contrary. Any acceptance of the TOU or any other agreement for Skyfirst Multimedia's services will be deemed null and void to the extent that Skyfirst Multimedia will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of Skyfirst Multimedia's services.
Governing Law and Severability
The TOU, and any other agreement for Skyfirst Multimedia services, will be governed by and construed in accordance with the laws of the State of Oregon, USA and those of Canada without reference to its conflicts of laws principles. Any litigation or arbitration between a customer and Skyfirst Multimedia will take place at the location specified by Skyfirst Multimedia at that date and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other Skyfirst Multimedia agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the TOU or the agreement will continue in full force and effect.
Skyfirst Multimedia will not be liable for delays in its performance of the TOU or Skyfirst Multimedia services caused by circumstances beyond Skyfirst Multimedia's reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). Skyfirst Multimedia will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.
Waiver and Amendment
Any waiver, modification, or amendment of any provision of the TOU or other agreement for Skyfirst Multimedia services, initiated by a customer, will be effective only if accepted in writing and signed by an authorized representative of Skyfirst Multimedia.
Nothing in this Agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between Skyfirst Multimedia and its customers. Each of Skyfirst Multimedia and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
Construction and Interpretation
Wherever in this TOU the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of the TOU into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of the TOU. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of the TOU.
Complete Agreement and Exclusivity
The TOU, and/or any other specific agreement for Skyfirst Multimedia services, constitutes the complete understanding and agreement between Skyfirst Multimedia and its customers. Except when expressly agreed to the contrary in signed writing by an authorized representative of Skyfirst Multimedia, the TOU supersedes any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This TOU, and/or any other specific agreement for Skyfirst Multimedia services is between Skyfirst Multimedia and its customers only and will not confer any rights in any third party except as otherwise expressly provided by Skyfirst Multimedia.
Skyfirst Multimedia Customer Billing Policy
- Credit Card (VISA, MasterCard, American Express)
- Check or Money Order
All payments are due on the Account Statement Date. The Account Statement Date is the monthly anniversary of the date the account was activated. If you supply your credit card information, you authorize Skyfirst Multimedia to automatically charge your credit or debit card for charges that apply to your account. Recurring charges will be posted to your credit card until such time that you cancel your account in accordance with Skyfirst Multimedia's Billing Policy in the TOU. You are responsible for directly updating, or notifying Skyfirst Multimedia, of any changes to your credit card (including, but not limited to card number, expiration date, billing address, or card status). Customers not paying by credit card agree to make payment of their balance due within ten (10) days of the Account Statement Date. Accounts that are thirty (30) days past due will be automatically suspended. All past due and unpaid balances are subject to collection. In the event of collection, you will be liable for costs of collection including attorney's fees, court costs, and collection agency fees.
Billing Cycles (Terms)
Skyfirst Multimedia offers two Billing Cycles (terms) for hosting charges: Monthly, and Yearly (12 months). The Billing Cycle begins on the Plan Activation Date. Resellers are limited to the monthly Billing Cycle for all of their charges. Non-credit card payment methods are limited to Annual Billing Cycles: You may elect to change your Billing Cycle at any time; however, the new Billing Cycle will only take effect at the time of the next plan renewal. All additional features added to an account are charged monthly. Additional items are non-refundable.
In order to insure uninterrupted service to your website, all plans will automatically renew at the end of the plan's Billing Cycle. Plan renewal charges are based on the prevailing rate on the date of renewal according to the service selected. Plans are renewed for the same billing cycle. If you wish to cancel your plan before plan renewal, please refer to the Cancellation section below.
Skyfirst Multimedia does not mail paper invoices or statements.
Returned (NSF) Checks Skyfirst Multimedia charges a CAD$35.00 fee for returned (NSF) checks. Customers that issue an NSF check will be required to submit future payments with a certified check or money order.
Credit Card Chargebacks
A CAD$35.00 chargeback fee will be assessed for each credit card chargeback received by Skyfirst Multimedia.
Hosting plans will automatically renew until a plan is cancelled. In order to cancel service, you must contact Skyfirst Multimedia's Billing Department via firstname.lastname@example.org. Skyfirst Multimedia's customer service representatives will assist you with the cancellation process. Please be aware that there are no pro-rated refunds after the first 30 days of service. Non-US customers may contact Skyfirst Multimedia's Billing Team via email at email@example.com. Cancellation requests must be received by Skyfirst Multimedia and a minimum of ten (10) days prior to the end of your Billing Cycle for all other plans. Cancellations submitted later than this time may result in automatic renewal of your hosting plan. Cancellations become effective on the day processed by Skyfirst Multimedia. Skyfirst Multimedia is unable to cancel your account effective for a future date. Skyfirst Multimedia will confirm the cancellation request when it is processed. If you do not receive a confirmation, please contact Skyfirst Multimedia as soon as possible. Skyfirst Multimedia will not provide partial refunds for early terminations. Annual service agreements paid on a monthly recurring basis will require 100% payment in full for remaining agreement length at the time of any early termination. Skyfirst Multimedia does not monitor, and will not automatically cancel, plans for problems related to domain name transfers, non-usage, Internic, your ISP, or any other secondary issues not directly related to Skyfirst Multimedia's services. Cancellation of services does not relieve the customer from paying any outstanding balance owed on the account. Skyfirst Multimedia, LLC reserves the right to cancel any account, at any time, without notice, for any reason Skyfirst Multimedia LLC considers appropriate.
Credit Card Disputes/Chargebacks
Skyfirst Multimedia has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment is subject to a fine, suspension and account termination at Skyfirst Multimedia's discretion. A charge of CAD$35.00 per chargeback will be assessed to all accounts that receive a chargeback.
Skyfirst Multimedia's policies and prices are subject to change without notice. Any price changes become effective in the next billing cycle.
Last Updated: 01/16/06