Swift Racks, Inc., its affiliates and their successors and assigns (collectively referred to as “Swift Racks”) makes available the web hosting and related services described in Swift Rack’s published service descriptions subject to these Terms of Service (the “TOS”).
For the purposes of the TOS, the word “you” means the individual requesting one or more services provided by Swift Racks, and, if applicable, includes any other legal entity on behalf of which an individual makes such a request. Additionally, you agree not to make such a request on behalf of any other legal entity unless you have the authority to bind that legal entity to the TOS.
- Intellectual Property. No intellectual property rights are transferred by SwiftRacks to you by these TOS.
- Your Content. “Your Content” means all materials, information, data or code that you upload, store, transmit, receive or process in connection with the Services. You hereby grant to SwiftRacks and its directors, officers, employees, agents, consultants or subcontractors the right to use, reproduce, transmit and delete (as applicable) Your Content in such manner as may be necessary to enable SwiftRacks to perform the Services and otherwise exercise any right or perform any obligations under this Agreement.
- Monitoring Your Content. Although SwiftRacks is not obligated to monitor content and assumes no responsibility for Your Content or the content of its other customers, SwiftRacks reserves the right, subject to all applicable laws, to investigate Your Content and may block access to, refuse to host, or remove any information or material that it deems to be in breach of section 6.1.
Unacceptable Use. Unacceptable use refers to any unlawful, illegal or inappropriate use as set out in this section 6. You may not use the Services or SwiftRacks’s technology infrastructure in any manner that constitutes an unacceptable use. Unlawful of illegal use is the creation, collection, transmission, storage or exchange of any material in violation of any applicable law or regulation. Inappropriate use includes any use or behaviour that may: (i) jeopardize SwiftRacks’s products, services, technology infrastructure or ability to operate; or (ii) expose SwiftRacks to civil liability. Unlawful, illegal or inappropriate use includes use of the Services to:
possess, store, view, download, transmit, distribute (by any peer-to-peer service or otherwise) or traffic any materials that:
- include child pornography;
- infringe any person’s copyright or other intellectual property right (including unlicensed or improperly licensed applications, music, games or other materials);
- wilfully promote hatred against or defame any identifiable individual, group or other organization; including but not limited to promoting hate, violence, or intolerance based on race, age, gender identity, ethnicity, religion, or sexual orientation.
- can be used for attacking computer systems and networks and defacing websites (including scripts, executables or other tools).
- include any form of malware
- make threats to a person’s safety or property;
- defame other persons;
- interfere with the services that SwiftRacks provides to its other customers;
- interfere with, disrupt or damage the servers used by SwiftRacks to provide such services, those of SwiftRacks’s suppliers or those of SwiftRacks’s other customers;
- impersonate or falsely state or otherwise misrepresent your identity or affiliation with any person or entity;
- wilfully bypass or subvert the physical, logical or procedural safeguards such as firewalls, web-filtering software or other access controls used by anyone to gain unauthorized access to anyone’s technology infrastructure or distributing computer programs designed to assist in doing so;
- any act in violation of any applicable local, provincial, state, national or international law or regulation including any laws relating to:
- the export of data or software;
- the protection of human rights;
- the promotion of hatred;
- criminal offences;
- the protection of intellectual property; or
- including the sending of commercial electronic messages without consent from the recipients.
Unacceptable uses of the Services or SwiftRacks’s technology infrastructure may also include but are not limited to: ailing, unsolicited emailings, newsgroup spamming, hardcore pornography (including but not limited to the use of animals in such pornography) or links to such sites, copyrighted MP3, illegal content, copyright infringement, trademark infringement, warez, cracks, software serial numbers, and running of any scripts, executables, or other programs or processes that can in any way adversely affect the performance of SwiftRacks’s technology infrastructure. SwiftRacks will be the sole and final arbiter as to what constitutes a violation of this policy.
Disruptive Uses. You may not use the Services or SwiftRacks’s technology infrastructure in any manner that interferes with or disrupts SwiftRacks’s other customers. When any of the following events occurs in relation to any hosted web site, it is a disruptive use, a breach of these TOS and SwiftRacks may exercise its rights under section 6.6 including to suspending Services:
- generating a daily, weekly or monthly volume of network traffic that is excessive in relation to amount of network traffic typically generated by SwiftRacks’s other clients who have purchased similar hosting services;
- generating spikes in network traffic usage that are out of proportion (in volume or frequency) to those typically generated by SwiftRacks’s other clients who have purchased similar hosting services;
- on a daily, weekly or monthly basis, consuming CPU or other processing resources in a manner that is excessive in relation to amount of network traffic typically generated by SwiftRacks’s other clients who have purchased similar hosting services;
- even if they do not come within (i), (ii) or (iii) above, running peer-to-peer applications, peer-to-peer file sharing, proxy servers, bit torrent, online gaming servers, proxy server network, interactive relay chat (IRC), interactive chat applications, membership or community sites, file sharing, video sharing, photo sharing or other resource intensive services or applications.
- using disk space to store materials unrelated to or unnecessary for the operation of the web site for which the Hosting Services were purchased (for example, using disk space for data warehousing, email storage, backups of emails accounts, backups of all or part of any computing, telecommunications or mobile device or other forms of mass data storage); or
- the sending of any commercial electronic messages promoting the web site or otherwise directing attention to the web site to any recipient without the recipient’s consent
- No “Spam”: UCE/UBE or “spam” originating from a server located on our network or associated with a SwiftRacks server is not tolerated. This includes any email that promotes websites hosted on a server located on the SwiftRacks network, but which is sent from an email address not associated with a SwiftRacks account.
- Music, Image and Video Files. Responding to and addressing copyright complaints is a time consuming process. From time to time, SwiftRacks scans its servers looking for MP3, MP4 and other file formats commonly used for music, images or video. If such files are detected amongst Your Content, SwiftRacks may ask you to demonstrate that they are: (i) owned or properly licensed by you; and (ii) if licensed, not being used in a manner that is inconsistent with that license. If you fail to do so for any file or, in the alternative, remove the file from SwiftRacks’s servers, it is a breach of this section 6.3 and SwiftRacks may exercise its rights under these TOS including section 6.6 and section 5.3
- Reporting. If you become aware that any person has committed, is likely to have committed or is likely to commit any act described in section 6.1, you will promptly report it to the help desk from which you receive technical support.
- Investigation. SwiftRacks reserves the right to investigate suspected breaches of this section 6, and you agree to cooperate with SwiftRacks when asked to assist in any such investigation.
- Breaches. If you breach this section 6, it is probable (in SwiftRacks’s sole discretion) that you have breached or it is likely that you will breach this section 6 (also in SwiftRacks’s sole discretion), SwiftRacks in its sole discretion may suspend or revoke your access to the Services or SwiftRacks’s technology infrastructure. Breaches of this section 6 may also result in you incurring criminal prosecution or civil liability.
- Others Breaches. SwiftRacks assumes no liability for enforcing or not enforcing the provisions in its other service agreements relating to acceptable use.
- SwiftRacks may assign one or more Internet Protocol addresses to you for use with the Services. You acknowledge that you have no right, title or interest in or to any IP addresses assigned to you by SwiftRacks or its representatives in connection any Services. SwiftRacks or its suppliers may change any such address at any time, but SwiftRacks will use reasonable efforts to give you notice of any change if the affected IP address is a fixed IP address.
- Fees. The fixed fees and/or rates applicable to any Service are set out in the online order form for the Service (the “Fees”). They may include one-time fees (these are typically for setting up the service) and recurring fees. PLEASE NOTE THAT THE ONLINE ORDER FORM MAY ALSO SET OUT A RATE INCREASE THAT WILL BECOME EFFECTIVE UPON THE EXPIRATION OF A PROMOTIONAL RATE. SUCH AN INCREASE WILL HAPPEN WITHOUT FURTHER NOTICE TO YOU. Otherwise, SwiftRacks will give you at least 30 days prior written notice of any increase to the Fees.
- Promotions. From time to time, SwiftRacks may offer its services to new or existing clients at discounted or promotional rates. You acknowledge that any such promotion is only applicable to one of your Services if the promotion or discount is clearly set out as applicable on the online order form used that you used to order the Service.
- Expenses. Unless expressly set out otherwise in an applicable Service Description, you will reimburse SwiftRacks for all registrar’s fees or other related expenses incurred by SwiftRacks in relation to any third-party service described in section 4.3.
- Taxes. You will pay any present or future sales, goods and services, excise, value-added, or other similar taxes including any related interest or penalties (imposed at any time by any governmental authority) arising from or related to any Services other than taxes based on SwiftRacks’s net income.
- Payment of Fees. SwiftRacks accepts payment by credit card (Visa, MasterCard or American Express) and by PayPal. Available payment types may vary from region to region. Information on the payment types accepted in your jurisdiction is available on the Site.
- In Advance. Payment for Hosting Services is in advance. When you order a Hosting Service, you are required to pay the full amount of Fees for the initial term and applicable taxes. When a Hosting Service renews, you are required to pay the full amount of Fees for the renewal term and applicable taxes. A Hosting Service renews when it has not been terminated by you prior to the last date of the initial term or any renewal term for which you have paid.
- Additional Services. Fees for Additional Services, applicable taxes and reimbursable expenses are due at the end of the month in which they are incurred.
- Automatic Charging. When SwiftRacks is entitled in accordance with this Agreement to any Fees, applicable taxes or expenses, such amounts will be automatically charged to the credit card or PayPal account that SwiftRacks has on file for you and you authorize SwiftRacks to do this. SwiftRacks will send an invoice for these amounts to the email address that it has on file for you before doing so.
- Chargebacks. Please note that should any amount that you pay by credit card or PayPal be charged back to SwiftRacks, you will incur an additional Fee of $25.00. The payment will not have been received by the due date, and:
- SwiftRacks may restrict, suspend or terminate the affected Services; and
- the overdue payment shall bear interest at the rate of one percent (1%) per month (an effective annual rate of 12.68%) or the maximum rate permitted by law, whichever is less. Further, SwiftRacks shall be entitled to recover its collection costs, including legal fees and expenses.
- 30 Day Guarantee of Hosting Services.
- If at any time during the 30 day period beginning on the date that you purchase Hosting Services for the first of your websites to be hosted by SwiftRacks you are not satisfied with the Hosting Services that you are receiving, you may terminate this Agreement by using the web-based tool that SwiftRacks provides to you to manage your account to terminate the Hosting Service. If you do so, you will receive a refund.
- Term. This Agreement shall be effective as of the date on which you order your first Service and shall continue until terminated in accordance with the terms and conditions set out in section 10 of this Agreement (the “Term”).
SUSPENSION AND TERMINATION
- Suspension. If you breach of these TOS, SwiftRacks may, in its sole discretion, restrict or suspend the Services, without prior notice to you and without an opportunity to cure the breach. If you are given an opportunity to and you cure the breach or you demonstrate to SwiftRacks satisfaction that you have taken steps to prevent future breaches of the TOS, SwiftRacks will lift the restriction or suspension. SwiftRacks will give you notice of any suspension or restriction. Whether or not a restriction affects your access to Your Content is in SwiftRacks’s sole discretion. PLEASE NOTE THAT FEES WILL BE CHARGED DURING THE PERIOD OF ANY SUSPENSION OR RESTRICTION OF SERVICES.
- By You. You may terminate any Service at any time by using the web-based tool that SwiftRacks provides to you to manage your account to terminate the Service. PLEASE NOTE: Subject to section 8.10, any amounts paid in advance for Services will not be refunded.
- By SwiftRacks. SwiftRacks may terminate any Service by giving you at least 30 days written notice of the termination date. SwiftRacks may terminate this Agreement immediately and without prior notice to you:
- if you breach section 6 (Acceptable Use);
- if you breach section 8 (Payment) and do not cure that breach within 10 days of the breach; or
- if you breach any other section of these TOS and do not cure that breach within 15 days.
- Survival. Those sections of this Agreement which by their nature should survive the termination or expiration of this Agreement, including but not limited to 3.4, 4.2(g), 4.2(l), 4.3(b), 4.3(c), 5, 7, 8, 10.4, 11, 12, 13, 14, 16 and 17 will remain in full force and effect following the expiration or termination of this Agreement.
- Renewals. Services purchased for a set period (for example, three years) will be automatically renewed upon the expiry of that period unless you give SwiftRacks written notice of your intention to terminate them at least 30 days prior to the expiry of that period. They will be renewed at SwiftRacks’s then current rates for such Services.
WARRANTIES AND DISCLAIMERS
- THE INTERNET IS A COMPLEX NETWORK OF EQUIPMENT, SERVICES, AND PROVIDERS OF INFORMATION, THUS THE SERVICE MAY NOT BE AVAILABLE TO YOU AT ALL TIMES. YOU ACKNOWLEDGE THAT THE HOSTING SERVICES AND OTHER SERVICES MAY NOT ALWAYS BE AVAILABLE, AND WITH THE EXCEPTION OF ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, SWIFTRACKS EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS WITH RESPECT TO THE HOSTING SERVICES OR OTHERWISE ARISING FROM THIS AGREEMENT WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY THAT THE HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATIONS OF LIABILITY
- Limit. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF SWIFTRACKS (INCLUDING ITS REPRESENTATIVES AND SUPPLIERS) TO YOU, THE CLIENT, FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT PAID BY YOU, THE CLIENT, DURING THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH YOU, THE CLIENT, MAKE YOUR FIRST CLAIM FOR DAMAGES.
- Indirect Damages. SwiftRacks (INCLUDING ITS REPRESENTATIVES AND SUPPLIERS) SHALL NOT BE LIABLE TO YOU, THE CLIENT, OR YOUR END USERS IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF DATA, REVENUE OR PROFIT RESULTING FROM OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OR USE OF THE HOSTING SERVICES. THIS LIMITATION SHALL APPLY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, OR WHETHER SWIFTRACKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Some jurisdictions do not allow the exclusion of incidental, special or consequential damages. If any jurisdiction having applicability to the TOS does not permit any such exclusion or limitation, SwiftRacks’s total liability to you in connection with any incidental, special or consequential damages will be limited by section 12.1.
- Allocation of Risk. You (the Client) and SwiftRacks understand and agree that, to the extent permitted by applicable law, the foregoing exclusions and limitations of liability represent the parties’ agreement as to allocation of risk between them in connection with their respective obligations under this Agreement. The fees payable to SwiftRacks reflect, and are set in reliance upon, this allocation of risk and the exclusions and limitations of liability set forth in this Agreement.
- You agree to indemnify and hold SwiftRacks and its affiliates, directors, officers, employees, and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, incurred in connection with or arising from any third-party allegations, claims, actions, disputes, or demands asserted against any of them as a result of or relating to Your Content, your use of the Services or any wilful misconduct on your part.
- Entire Agreement. These TOS and all documents incorporated herein by reference constitute the complete agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter.
- Severability. Should any provision of this Agreement be held to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the extent permissible, and all other provisions will remain in effect and are enforceable by the parties.
- Waiver. No waiver of any part of this Agreement will be deemed to be a waiver of any other provision. No term of this Agreement will be deemed to be waived by reason of any previous failure to enforce it. No term of this Agreement may be waived except in a writing signed by the party waiving enforcement.
- Interpretation. The headings used in the Terms are for convenience of reference only. No provision of the Terms will be interpreted against any party merely because that party or its legal representative drafted the provision. All remedies are cumulative. Throughout the TOS, the term “including” or the phrases “e.g.,” or “for example” have been used to mean “including, without limitation”.
- TOS. You may not assign the agreement represented by these TOS, either in whole or in part, without the prior written consent of SwiftRacks. Any other attempted transfer or assignment of rights hereunder shall be null and void.
- Domain Names. These TOS do not restrict your ability to transfer any domain for which you are the registrant. If SwiftRacks is the registrar for the domain name, please request our “domain name transfer instructions” by sending an email to support@SwiftRackssupport.com. We will send you the specific details and information about transfer of ownership.
- SwiftRacks. SwiftRacks may assign its rights and obligations hereunder without your prior consent.
- Notice. Any notice or other significant communication given to you pursuant to the Terms will be in writing, addressed to any email address or address that you provided to SwiftRacks when acquiring your first Service (as updated by you in accordance with section 3.2) and sent to you by email or by nationally recognized overnight courier as applicable. Any notice or other significant communication given to SwiftRacks pursuant to the TOS will be in writing and sent to SwiftRacks at the address then listed on the Site in the Contact Us section by fax or nationally recognized courier. Notices will be deemed to have been received one business days following: (i) email transmission by SwiftRacks to you; (ii) deposit with a globally recognized overnight delivery service, all delivery charges pre-paid; or (iii) transmission if sent by facsimile and receipt confirmed by the facsimile machine used.
- Governing Law. This Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to the conflict of laws provisions. The parties consent to the jurisdiction of the courts of Ontario, Municipality of Halton and City of Burlington.
- Independent Contractors. The relationship between the parties is that of independent contractors, and not that of partnership, joint venture, employment, franchise or agency. Neither party may incur any obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
- Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight provided that such party gives the other party prompt notice of such cause and uses reasonable commercial efforts to correct such failure or delay in performance.
- SwiftRacks may change the TOS from time to time and at any time. When SwiftRacks changes the TOS, SwiftRacks will: (i) post the updated version of the TOS on the Site together with the date on which it was revised; and (ii) on home page for the Site for at least 30 days following any change to the TOS post a notice that the TOS have been updated.
- As well, SwiftRacks may, but is not obliged to, ask you to actively confirm your consent to the revised TOS. If SwiftRacks does not do so, but you continue to use the Services or Site after the changes come into effect, you will be deemed to have agreed to abide by the revised TOS. If you do not agree with the revised TOS without qualification, terminate any existing Services that you are receiving from SwiftRacks and instruct SwiftRacks to disable any password for the Site assigned to you.
- SwiftRacks reserves the right, in its sole discretion, to change or modify the Site from time to time including but not limited adding or removing functionality or features or changing its name.