TOS - Terms Of Service / AUP - Acceptable Use Policy (Effective 06/01/2007)

This Terms of Service is between the "Customer" and MS Transactions Inc. operating as HostMDS, located at 27 Buttermill Avenue, Unit #2, Vaughan, Ontario L4K 3X1, Canada.

General Information
HostMDS' Terms Of Service / Acceptable Use Policy ("TOS/AUP") document is designed to provide a clear understanding of regulations, restrictions regarding the user of HostMDS' services.
HostMDS reserves the right to modify the Acceptable Use Policy from time to time, effective on the date of posting. HostMDS may not notify the customer of the change, however it is the customers responsibility to frequently check back to ensure they are upto date with the policy. By using our services, and agreeing to the Terms of Service ("TOS"), you agree to abide by the TOS as modified from time to time. Any violation of the TOS may result in the suspension or termination of your service without notice and without refund. An activity that is unlisted may also be a violation of the TOS if it is illegal, irresponsible, or disruptive to the use of the Internet.
THE VIOLATION OF ANY TOS OR ANY OTHER POLICY IS STRICTLY PROHIBITED AND MAY RESULT IN THE IMMEDIATE SUSPENSION OR TERMINATION FROM THE SERVICES PROVIDED BY HostMDS. YOU SHALL REMAIN SOLELY LIABLE AND RESPONSIBLE FOR YOUR USE OF THE SERVICES AND ANY AND ALL CONTENT THAT YOU DISPLAY, UPLOAD, DOWNLOAD OR TRANSMIT THROUGH THE USE OF HostMDS' SERVERS. "CONTENT" INCLUDES, BUT NOT LIMITED TO; E-MAIL, WEB PAGES, PERSONAL HOME PAGES, AND DOMAIN NAMES. IT IS HostMDS' POLICY TO TERMINATE REPEAT OFFENDERS, HostMDS RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE AT ANY TIME, WITHOUT REASON.

Customer Responsibility: Security
The customer is responsible solely for any breaches of security affecting servers under the customer's control. If a customer's server is involved in an attack on another server or system, it will be immediately shut down and an investigation will begin. It is the customers responsibility to rectify any damage done to the customer's server and any other requirement affected by the security breach. The labour used to rectify any such damage is categorized as emergency security breach recovery and is charging $150 USD per hour.

Data Backups
The customer is responsible for all data backups. If a server suffers from a data loss, it is the sole responsibility of the customer to restore the data. Also you cannot use server for storing backup files so you should always download backup files off the server as these files may be deleted automatically without warning.

System and Network Security
Violations of system or network security is strictly prohibited, and may result in criminal and civil liability. HostMDS may investigate incidents involving such violations and may involve and will co-operate with law enforcement if a criminal violation is suspected. The following are some examples of network or system violations:
  • High-risk services, which are services which tend to attract denial of service attacks, are strictly prohibited. This includes, but is not limited to, IRC related services and selling of shell accounts.
  • Interference with service to any user, host or network including, without limitation, mailbombing, 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 e-mail or newsgroup posting.
  • Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
  • 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 breach security or authentication measures without express authorization of the owner of the system or network.
  • Violators of the policy are responsible, without limitations, for the cost of labour to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complains incurred by HostMDS. Such labour is categorized as emergency security breach recovery and is currently charged at $150 per hour.

    Password Protection
    The customer is responsible for protecting customer's password and for any authorized or unauthorized use made of customer's password. The customer will not use or permit anyone to use HostMDS' service to guess passwords or to access other systems or networks without authorization. HostMDS will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activity.

    Contact Information Customers are responsible for maintaining their contact information in the ticketing system such that the email address is always reachable even in the event of their HostMDS servers being shut down.

    Internet Etiquette
    The customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). The customer will comply with the rules appropriate to any network to which HostMDS may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children or is likely to result in retaliation against HostMDS by offended users. HostMDS reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.

    Copyright Infringement - Software Piracy Policy
    The HostMDS network may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of Canada or province regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights. Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be fined up to $250,000 and/or receive up to 5 years in jail. In compliance with the Digital Millennium Copyright Act (the "DMCA"), please send DMCA notifications of claimed copyright infringements to abuse@hostmds.com. HostMDS will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
    Network Responsibility Customers have a responsibility to use the HostMDS network responsibly. This includes respecting the other customers of HostMDS. HostMDS reserves the right to suspend and or cancel service with any Customer who uses the HostMDS network in such a way that adversely affects other HostMDS customers. This includes but is not limited to:
    Attacking or attempting to gain unauthorized access to servers and services that belong to HostMDS or its customers (i.e. computer hacking), and/or Participating in behavior which result in reprisals that adversely effect the HostMDS network or other customers' access to the HostMDS network. HostMDS will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a HostMDS customer, whether or not the attacked account or computer belongs to HostMDS, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of HostMDS is strictly prohibited.
    Violations of this policy may be reported directly to the RCMP at http://www.rcmp-grc.gc.ca/contact/index_e.htm. HostMDS will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
    Lawful Purpose
    All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or TOS is prohibited. This includes, but is not limited to copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.
    Using any HostMDS service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.
    Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of HostMDS services or products is prohibited. Using the HostMDS network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.
    Servers hosted within HostMDS network are open to the public. You are solely responsible for your usage of the HostMDS network and servers and any statement you make on servers hosted within the HostMDS network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.

    Child Pornography on the Internet
    Our policy on child pornography is zero tolerance. HostMDS will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the HostMDS network, and will be liable for illegal material posted by their clients. According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.
    Violations of the Child Protection Act may be reported to the CRIME STOPPERS at 416-222-TIPS

    Adult Content on the HostMDS Network
    HostMDS does allow Adult Content on our services. Though, HostMDS reserves the right to refuse, terminate or delete any content that is determined to be unacceptable. Any content that is determined to be illegal based on the laws of the Province Of Ontario and within the Canadian Federal Court, will be deleted without notice to the client.

    Commercial Advertisements with E-mail
    HostMDS takes a zero tolerance approach to the sending of Unsolicited Commercial E-mail (UCE) or SPAM over our network. Very simply, this means that customers of HostMDS may not use or permit others to use our network to transact in UCE. Customers of HostMDS may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service. Sending a message, especially an advertisement, to more than five recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. This includes both commercial advertisements and informational messages sent to recipients via electronic mail (email) as well as off-topic messages posted in Usenet discussion groups where the recipient has not requested or invited the message. Mailing lists must be true opt-in mailing lists. Before sending any email to a listed user, a confirmation email, with a tracking number, must be sent to the new subscriber, to which they must respond with a confirmation that they wish to be added to the list. You must keep these confirmations on file, so that in the case that a spam complaint is made against you, you have proof that the user did indeed opt-in. In addition, you must provide at least one easy way to opt out; see the MAPS guidelines (http://mail-abuse.org/rbl/manage.html) for details. Opt-out requests must be honored immediately.
    E-mail is a person-to-person medium, not a broadcast medium.
    Customers of HostMDS are strictly prohibited from using or permitting others to use UCE or SPAM over our network. As our Customers are ultimately responsible for the actions of their clients over the HostMDS network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
    Violation of HostMDS' SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, HostMDS will initiate an immediate investigation (within 48 hours of notification). During the investigation, HostMDS may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, HostMDS may, at its sole discretion, restrict, suspend or terminate customer's account. Further, HostMDS reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. HostMDS will notify law enforcement officials if the violation is believed to be a criminal offense.
    Violation of HostMDS' SPAM policy may be reported to abuse@hostmds.com

    IP Address Overlap
    HostMDS administers the network on which customer servers reside. The customer cannot use IP addresses which were not assigned to them by HostMDS staff. Any server found using IPs which were not officially assigned will be suspended from network access until such time as the IP addresses overlap can be corrected.

    IRC
    HostMDS does not allow the use of IRC on the HostMDS network. This includes, but is not limited to, the use of IRC clients, server software, bots or anything related to IRC. Violators' servers will be suspended.

    Game Servers
    HostMDS does not allow the use of Game Server scripts which uses 25 percent of system resources (RAM and CPU) for more then 90 seconds on the HostMDS shared servers . But it is allowed on dedicated and VPS servers.

    Billing
    The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.

    Suspension
    HostMDS reserves the right to suspend network access to any customer if, in the judgment of the HostMDS network administrators, the customer's server is the source or target of the violation of any of the other terms of the TOS or for any other reason which HostMDS chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacting regarding the activity. The customer will not be credited for the time the customer's machines were suspended. The Customer will be credited on a prorated basis based on the monthly fees the Customer pays for the servers that are suspended for the time the Customer's machines were suspended.

    Customer Content
    Customer agrees that webpages and files uploaded to servers will not violate any province/state, federal or foreign laws or regulations; infringe on any intellectual property rights of HostMDS or any third party; be defamatory, slanderous or trade libelous; be threatening or harassing; be discriminatory based on gender, race, age; promote hate; or contain viruses or other computer programming defects which result in damage to HostMDS or any third party. Customers may not run IRC, bots or clients. BitTorrent seeders, trackers and .torrent files are not allowed. Unacceptable uses also include: Bulk unsolicited emailing, unsolicited emailings, newsgroup spamming, child porn or links to such sites, copyrighted MP3, illegal content, copyright infringement, trademark infringement, warez, cracks, software serial numbers. HostMDS will be the sole and final arbiter as to what constitutes a violation of this policy. HostMDS does not normally monitor the contents of customer servers, however if suspicion occurs, HostMDS reserves the right to investigate and terminate the clients subscription to the service without refund.The customer also agrees to make use of HostMDS Web Hosting shared servers primarily for the purpose of hosting a website. Data uploaded must be primarily for this purpose; HostMDS Web Hosting shared servers are not intended as a data backup or archiving service.

    Excessive Usage
    Resources are defined as bandwidth, memory and/or processor utilization. A website is considered using "Excessive amounts of resources" when it monopolies the resources available using 10% or more of system resources for longer than 60 seconds. There are numerous problems that could cause such problems, this includes: scripts, FTP, HTTP, etc. A site that consumes over the account limit of bandwidth is also considered "excessive resources". This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. The client whom is using "excessive resources" will be asked to upgrade his/her package to one of our dedicated server packages or switch web hosting providers. HostMDS will be the sole and final arbiter as to what constitutes a violation of this policy.
    Any files that are stored on our shared hosting servers by a surveillance / camera system or storing too many media files may cause your account to be flagged for Excessive Usage. This typically cause your account to be flagged for Excessive Usage because of the number of images that you are sending to your account. These files may be deleted automatically without warning. For this type of application, a Dedicated Server would be your best solution.

    INODE Limit To ensure optimal performance on our shared servers, we periodically check INODE usage (Number of files) on the server. Although we do not have a hard limit as we would like to offer more flexibility to clients but we at the same time we expect clients to use the shared server responsibly. Any client using more than 400K inodes will be asked to clean the account or upgrade his/her package to one of our dedicated server packages or switch web hosting providers.

    Bandwidth Usage
    HostMDS offers a generous amount of data transfer per month. Bandwidth is calculated on a recurring 30 days. There is a daily 500MB transfer cap or total bandwidth divided by the number of days in the current month, whichever is higher. If you exceed your bandwidth limit for any given month, your account will be suspended until after the next month, warning e-mail's are sent out before your account reaches the maximum to give you advance notice of bandwidth consumption.

    Bandwidth Stealing
    Bandwidth stealing is defined as using a temporary URL to access your website after the first 72 hours of your account creation, or using the temporary URL as a download link for large files. This is against the TOS, and will result in: (a) Customer billed at $2.50 per GB used and/or (b) Suspension & Termination of account without refund (if within the money back period).

    Mass Mailing Our authorized usage policy requires that ALL mass mailing (meaning any email sent to more than one recipient) must have an easy one-click unsubscribe link to allow recipients to easily opt out.

    Payment Obligation
    Full payment is required in advance before hosting service is established. HostMDS sends out invoices that are due every pay period. You are given fifteen (15) days to fully pay the invoice. We do not automatically charge your credit card. You warrant and represent that the information you supply in the Order Form (or other information that HostMDS may require) is accurate and truthful. All payment-due notices will be sent by e-mail. No bills or invoices will be sent by postal mail or fax. If payment was not received by the due-date, your account will be suspended and then terminated from our servers/backups after 30 days. To have your account re-established, you will need to pay the monthly fees, plus any interest accumulated at the rate of 12.35% per year. There is a $35 fee for bounced cheques and a $45 processing fee for chargebacks.

    Renewals
    Your account will be automatically renewed under the same time and fee structure unless you give written notice to HostMDS thirty (30) days before the renewal date that you do not wish to renew such account. Cancellation request can be submitted through the cancellation request form found within the client area
    Upgrades to service may entitle a $25 administration fee.

    Cancellation HostMDS reserves the right to cancel service at any time. If inappropriate activity is detected, all accounts of the customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacting regarding the activity. All fees paid in advance of cancellation are non-refundable if HostMDS institutes its right of cancellation. Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.).
    Customer's may cancel their account by filling out the relevant form located inside of the client area at least 30 days prior to the end of the current agreement.

    Anytime Money Back Guarantee

    HostMDS offers an unconditional money back guarantee on shared hosting services only (Dedicated and VPS servers payments are non-refundable) if we fail to satisfy your needs.
    Within the first 30-days: You will be provided a full refund, less any setup fees, commission fees, administrative fees, domain registration or transfer costs.
    After the first 30-days: You will receive a pro-rated refund of any pre-paid monies that are on your account less any setup fees, commission fees, administrative fees, domain registration or transfer costs.
    The guarantee does not apply to accounts with non-use, misuse or abuse. Setup fees, administrative fees, domain registration & domain transfers are non refundable. Violation of the TOS disqualifies the customer of refunds. Offline payments such as money orders, bank transfers or cheques are not eligible for the money back guarantee. Does not apply to customers who are signed up before January 1, 2009.

    Free Domain Registration or Transfer
    HostMDS offers a free 1 year registration of a new domain name or transfer of an existing domain name for use with selected services purchased for 1 year or longer. The free domain name can only be used as the primary domain for the account and must be selected at time of purchase. The domain is purchased under the name of the customer and is not locked. Future renewal of domains are billed at the going rate for domain renewals. In the event the hosting service is terminated and a refund is initiated the value of the domain is non-refundable and subtracted from the refund based on the domain registration cost at the time the order was placed. Existing and previous customers are not eligible for the free domain registration or transfer and will be billed at the going rate for domain registration and transfers.

    Telephone Support
    HostMDS offers telephone support on selected services and plans. All included telephone support is carried out during standard business hours from 9:00am to 5:00pm EST. Toll charges may apply depending from your calling area.

    100% Uptime Service Level Agreement
    Thanks to the power and resilience of the HostMDS network infrastructure, we can guarantee that our network will be available 100% of the time.
    If you find that we fail to meet this promise, we will refund as a credit 1 day's service for every 30 minutes that connectivity has been unavailable over and above 0.001% of the month, extending in value up to a maximum of your monthly subscription charge. Does not apply to customers who are signed up before October 1, 2008.

    SLA Credits
    Any credits offered under the SLA will be allocated to your HostMDS account. Any claim under the SLA must be made within 24 hours of the event; claims following this time cannot be authenticated and hence no credit will be awarded.
    Customers are therefore requested to notify HostMDS of any network downtime immediately and upon confirmation that the network was unavailable as a result of HostMDS actions, a credit under the SLA will be calculated from the time that the network downtime was reported.

    Indemnification
    HostMDS wishes to emphasize that in signing the Master Services Agreement or its equivalent, customer indemnifies HostMDS for any violation of the Master Services Agreement or its equivalent, law or TOS that results in loss to HostMDS or the bringing of any claim against HostMDS by any third-party. This means that if HostMDS is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against HostMDS, plus costs and reasonable attorney's fees.

    Disclaimer of Responsibility HostMDS is under no duty to look at each customer's or user's activities to determine if a violation of the TOS has occurred, nor do we assume any responsibility through our TOS to monitor or police Internet-related activities. HostMDS is not responsible for any damages caused to the client by direct or indirect result of failure of our service. HostMDS disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person's or party's violation of this policy.
    All Sub-Networks, resellers and managed servers of HostMDS must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation without refunds if applicable.
    INDIRECT OR ATTEMPTED VIOLATIONS OF THE TOS AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF, SHALL BE CONSIDERED VIOLATIONS OF THESE TOS BY YOU.
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