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Terms and Conditions of Use
WHEREAS, Neo Code Software, Inc. ("Neo Code Software") of #288 - 425 Carrall St., Vancouver, BC, Canada, V6B 6E3 is a service provider connected to the Internet.
Neo Code Software provides at the following website: www.neocodesoftware.com ("Neo Code Software Website") virtual Web hosting and transfer services over the Internet through access to its Web Server, FTP Server and SMTP & POP Mail Server services.
WHEREAS, the Client seeks to utilize Neo Code Software's services for its own purposes;
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, Neo Code Software can make no guarantee that any given reader shall be able to access Neo Code Software's network(s) at any given time. Neo Code Software represents that it shall make every good faith effort to ensure that its network(s) is available as widely as possible and with as little service interruption as possible;
NOW THEREFORE, in consideration of the mutual promises contained herein, the Client by accessing and using the Services, agree to be bound by all of the following Terms and Conditions of use ( "the Agreement" ) and any operating rules, policies, and procedures that may be published from time to time on this Website by Neo Code Software:
1. Definitions:
In this Agreement, unless the context otherwise provides, the following terms shall have the following meanings:
• "Client" means a person, or body whether corporate or unincorporated who seeks to purchase/ utilize the Services;
• "Charges" means the charges for the Services specified in a price quotation or a request for Services;
• "Confidential Information" means any information disclosed from one party to another pursuant to or in connection to this Agreement including technical information relating to the Service and the Equipment (whether orally or in writing and whether or not such information is expressly stated to be confidential and marked as such)
• "Equipment" means equipment belonging to Neo Code Software for the provision of the Services which includes web servers, application servers, database servers, routers and switches, and all related telecommunications connectivity ;
• "Services" means any or all of the following services, being, Virtual Web services, Free Trial Service, Shared Web Hosting, Dedicated Web Hosting, Power Server, Dedicated Server, and / or Cluster Hosting packages;
• "Intellectual Property Rights" means any or all of the trademarks, trade names, patent, copyright or other industrial or intellectual property right subsisting in the relevant territory;
• "Client's Website" means sites created and hosted on Neo Code Software Website;
• "Neo Code Software Website" means either www.neocodesoftware.com offering hosting and transfer services over the Internet through access to its Web Server, FTP Server and SMTP and POP Mail Server services.
2. Term of Agreement
2.1 This Agreement commences when:
(a) Neo Code Software receives a duly completed and executed request for Services from the Client; or
(b) when the Client commences using the Services.
2.2 This Agreement comes into effect on commencement and shall continue in force for a period of 6 months or 12 months ( "Original Term" ) as parties may agree. The Agreement upon expiry of the Original Term shall, unless or until terminated by either party earlier in accordance with clause 10 terminate and cease to have further legal effect, save for Clause 17. The Client has the option of renewing the term of this Agreement for a further period of 6 or 12 months, as the case may be on the same terms and conditions herein ( save for any revisions or changes made by Neo Code Software and published on-site ). A renewal notification will be sent to the Client two (2) months prior to expiry of the Original Term.
3. Registration
3.1 Provision of the Service and commencement thereof is conditional upon:-
(a) the Client's provision of its own equipment , including computer, modem, necessary to establish connection to the Services;
(b) provision by the Client of current , complete and accurate information about the Client as prompted to do so by the registration form/ as requested by Neo Code Software;
(c) maintain and update such registration information as required to keep such information current , complete and accurate;
(d) acceptance of the terms and conditions herein.
3.2 If any registration data that the Client provides is untrue, inaccurate, not current or incomplete, Neo Code Software reserves the right to terminate the Client's account and the Client's rights to use the Services.
4. Domain Name Registration & Disputes:
If Neo Code Software shall acquire an Internet Domain Name on behalf of the Client, via Tucows, Inc., please refer to current prevailing charges as set out on the Neo Code Software websites ( www.neocodesoftware.com). The Client hereby waives any and all claims which it may have against Neo Code Software, for any loss, damage, claim or expense arising out of or in relation to the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of the providing of this service by Neo Code Software for any reason.
The use of the Domain Name must be in accordance with the following:
Disputes must be in accordance with the OpenSRS / Tucows Uniform Domain Name Dispute Resolution Policy posted on the Neo Code Software Web site at: http://monica.neocodesoftware.com/site/index.cgi/about_policies_udrp.
5. Payment
5.1 Neo Code Software shall charge and the Client shall make payment for the provision of the Services in the manner and at the rates prescribed by Neo Code Software in the Neo Code Software Website.
5.2 Payment is accepted in US Dollars.
5.3 The set-up fee and payment are due at the time the application and Agreement are filled out, and returned to Neo Code Software. Subsequent payments are due according to the selected fee schedule following the establishment of the web space or service on the Internet. Web space and services will be billed a minimum of two (2) months in advance depending on the selected fee schedule. Subsequent notice of pre-payments is provided two month before the expiry of the prescribed Service or the paid balance available, whichever is sooner, as per the selected fee schedule. In the event that the Client fails to pay for such services in advance, Neo Code Software shall be entitled to unilaterally terminate this Agreement and discontinue the service until payment is made. A reactivation fee (currently S$50) shall be charged.
5.4 In the case of a corporate client, the individual under whose name the order is made is also responsible for all payments due.
5.5 All payments due to Neo Code Software shall be made in the manner prescribed at the Neo Code Software Website under the Payment Selection web page. In the event that any of the sums due under this Agreement or any part thereof is unpaid for a period of 14 days after it is due, the Client shall pay interest at the rate of 1.5% per month from the date such sum was due until payment is received in full without prejudice to any other rights of Neo Code Software hereunder. Neo Code Software reserves the right to terminate or delete immediately any of the Virtual Environment(s) created beforehand should payment not be received by due date.
5.6 The Client shall pay any applicable Goods and Services Tax, imposition, duty, levy whatsoever ("the taxes") which may be from time to time imposed or levied by any governmental, statutory or tax authority in US on or calculated by reference to the amount of any sums receivable by Neo Code Software in relation to this Agreement.
5.7 If this Agreement does not terminate in accordance with clause 10 herein, and is renewed in accordance with clause 2.2, the Client will receive an invoice for charges for the new term via electronic mail and payment is due prior to the expiration date of the Original Term or the expiry of any successive terms of this Agreement. Renewal prices are subject to change. It shall be deemed that by renewal of this Agreement for Services, the Client is agreeable to any revision of terms including price changes to this Agreement.
6. Setup
The account will be setup within the next two (2) business days for Credit Card payment, and five (5) business days for Cheque payment, upon Neo Code Software receiving the set-up fee and payment of the Services.
7. Material and Products
7.1 Client will provide Neo Code Software with material and data in a condition that is "server-ready", which is in a form requiring no additional manipulation on the part of Neo Code Software. Neo Code Software shall make no effort to validate this information for content, correctness or usability.
7.2 Use of Neo Code Software's service requires a certain level of knowledge by Client in the use of Internet languages, protocols, and software. This level of knowledge varies depending on the anticipated use and desired content of Client's web space by the Client. The following examples are offered.
(a) Web Publishing: a good knowledge and command of HTML, properly locating and linking documents, uploading Web contents, graphics, text, sound, etc., as well as using FTP and a basic understanding of Telnet.
(b) FrontPage web publishing: a knowledge and command of the FrontPage tools as well as basic Telnet and FTP understanding.
(c) CGI Scripts: a knowledge and command of the UNIX shell environment, tar and gzip commands, Perl, shell scripts, permissions (chmod), ownership (chown), etc.
(d) Auto-responders: a knowledge and command of Procmail auto-responder features, forwarding mail, use of mail clients to receive mail, etc.
(e) Dedicated Server: a knowledge and command of Linux Internet system administration to the extent required by Client's specific use of the server.
7.3 The Client agrees that he or she has the necessary knowledge to create and maintain their web site. If the Client changes the configuration on the server in such a way that it no longer works, Neo Code Software will fix it for the Client at the prevailing rates (currently $70/ hour) charged on the basis of the minimum of 1 hour.
8. Operation of Neo Code Software Website
8.1 Neo Code Software will exercise no control whatsoever over the content or format of the information passing through its network or residing on its or its Clients' servers. Neo Code Software will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. In the event that material provided by the Client is not "server-ready", Neo Code Software may, at its option and at any time, reject and delete this material, including but not limited to after it has been put on Neo Code Software's server(s).
8.2 Neo Code Software agrees to notify the Client of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of Neo Code Software . If the Client fails to modify the material, as directed by Neo Code Software, within a reasonable period of time, which shall be solely determined by Neo Code Software, the Agreement shall be deemed to be terminated.
8.3 Use of any information obtained by way of Neo Code Software is at the Client's own risk, and Neo Code Software specifically denies any responsibility for the accuracy or quality of information obtained through its services or its representatives.
8.4 Connection speed represents the maximum speed of a connection and do not represent guarantees of available end-to-end bandwidth.
8.5 The Client agrees that Neo Code Software shall be entitled (but shall not be obliged) at any time, at Neo Code Software's discretion and without prior notice, to temporarily suspend the operations of the Client's Website or part thereof for updating, maintenance and upgrading purposes, or any other purpose whatsoever that Neo Code Software deems fit. Neo Code Software specifically denies any responsibilities for any loss, liability or damages arising as a consequence of such unavailability.
8.6 Neo Code Software maintains control and any ownership of any and all I.P. numbers and addresses that may be assigned to Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
8.7 Neo Code Software shall not be liable for non-performance or late performance of any obligation hereunder, to the extent and for such a period of time as such non-performance or late performance is due to reasons beyond its reasonable control, including but not limited to, act of God, civil or ethnic unrest, shortage or unavailability of labour, revolution or insurrection, war (whether declared or not), terrorist activity, religious events, bombings, blockages, embargoes, general labour strikes, power failures, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority or any governmental regulations imposed after the fact, import or export regulations or embargoes, acts or defaults of any telecommunications network operator, circumstances where communications lines (whether in US or elsewhere) cannot be used for reasons attributable to third party telecommunications carriers, fire, explosions, floods, earthquakes or any other natural disaster, chemical contamination, unavailability of equipment or components not caused by Neo Code Software's act or default.
9. Internet Etiquette
9.1 Electronic forums such as mail distribution lists and Use Net news groups all have expectations regarding subject area and appropriate etiquette for posting. Users of these forums should be considerate of the expectations and sensitivities of others on the network when posting material for electronic distribution. The network resources of Neo Code Software may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Neo Code Software. All messages transmitted via Neo Code Software should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or posting. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
9.2 Use of distribution lists via unsolicited electronic mail or other mass electronic mailings is strictly prohibited. Neo Code Software reserves the right to deactivate the Client's Virtual Server account(s) upon an indication of such activity.
10. Termination
10.1 This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice.
10.2 Notwithstanding the above, Neo Code Software may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with the terms of this Agreement or upon an indication of credit problems including delinquent payments.
10.3 Termination shall be accompanied by a written or electronic notice to the other party. Neo Code Software shall not be liable to Client or any third party for termination of access to the Neo Code Software Website/ Services.
10.4 Upon termination of this Agreement, the Client's use of the Services immediately ceases and the Client acknowledges and agrees that Neo Code Software may immediately delete files in the Client's [account], bar further access to such files / Services.
10.5 The Client agrees that upon termination of this Agreement, the Client will pay any and all outstanding fees, charges and payments due to Neo Code Software in full within 30 days after termination.
11. Limitation of Liability
11.1 As a condition of the Client's use of the Services, the Client agrees as follows:
(a) The Client expressly agrees that use of Neo Code Software's Equipment is at the Client's sole risk. The Client acknowledges and agrees that any material or data downloaded or otherwise obtained through the use of the Services and/or Equipment is done at the Client's own discretion and risk and that the Client will be solely responsible for any damage to the Client's own computer system or loss of data that results from the download or use of such material or data.
(b) Neo Code Software disclaims, in respect of the Services and/ or Equipment and use thereof, all warranties of any kind, either express or implied, including but not limited to, warranties of title or implied warranties of merchantability or fitness for a particular purpose and non-infringement as well as all warranties arising by usage of trade, course of dealing or course of performance.
(c) Neo Code Software, makes no warranty that the Services and /or Equipment will not be interrupted or error free; nor does Neo Code Software make any warranty as to the results that may be obtained from the use of the Services and/or Equipment or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Services and/or Equipment.
(d) Under no circumstances whatsoever, (including negligence), shall Neo Code Software, its offices, agents or any one else involved in creating, producing or distributing Neo Code Software's Server service be liable for any loss or direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Neo Code Software Services and /or Equipment; or that results from mistakes, omissions, interruptions, deletion or loss of files, errors, defects, delays in operation, or transmission or any failure of performance, including without limitation, acts of God, communication failure, theft, destruction or unauthorized access to Neo Code Software 's records, programs or services.
(e) Neo Code Software shall not be liable for any obligation, liability, right, claim or remedy in tort, whether or not arising from the negligence of Neo Code Software.
(f) Notwithstanding any other provision of this Agreement, the Client's exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement. . In the event of system unavailability due to default of Neo Code Software, Neo Code Software expressly limits its damages to the Client for any such non-accessibility time or other down time to the prorated monthly charge during the said system unavailability provided always that Neo Code Software, is notified and given details within 48 hours of such incidence.
12. No unlawful or prohibited use
12.1 As a condition of the Client's use of the Services, the Client agrees that it will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. The Client shall not use the Services in any manner which could damage, disable, overburden, or impair any of the Service(s) (or the network(s) connected to any of the Service(s)) or interfere with any other party's use and enjoyment of any of the Service(s). The Client shall not attempt to gain unauthorized access to any Service, other accounts, computer systems or networks connected to any Service, through hacking, password mining or any other means. The Client shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
12.2 The Client acknowledges and is aware that transmission of any material in violation of any regulation of the Republic of US is prohibited. This includes, but is not limited to copyright material, material that is considered threatening, obscene, pornographic, profane, and of trade secrets nature. This also includes links or any connection leading to such materials.
13. Indemnification
13.1 Client agrees that it shall defend, indemnify, save and hold Neo Code Software, its subsidiaries, affiliates, directors, officers, managers, agents, employees harmless from and against any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees on an indemnity basis, ("Liabilities") asserted or made by any third party, due to or arising or resulting from the Client's use of the Services and/or Equipment or breach of any of the terms herein or any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns using the Services. Client agrees to defend, indemnify and hold harmless Neo Code Software against Liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with the Services and/or Equipment ; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold on the Services.
13.2 Due to the public nature of the Internet, all information should be considered publicly accessible, and important or private information should be treated carefully. Neo Code Software is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or its customers may utilize.
14. Reselling
14.1 Subject to terms provided in the Virtual Hosting Reseller Agreement, the Client is allowed to resell the storage and transfer services provided by Neo Code Software. The Client agrees to handle and is responsible for all third-party customer's content, support, set-up and maintenance.
14.2 The Client's email accounts and POP accounts are strictly for its use ( which includes its employees/ staff ).The Client is not allowed to resell or provide for free, these accounts to any third parties If the server is resold, this restriction applies on the owner of the server as well.
14.3 The Client acknowledges and agrees that Neo Code Software shall not be responsible or liable , directly or indirectly, in respect of the Client's use of Neo Code Software's Reselling service. The Client further acknowledges and agrees that it is solely responsible or liable for any damage, loss caused or alleged to be caused by or in connection with use or reliance on the aforesaid services offered by the Client pursuant to the Reselling service. The Client shall be responsible to the third party in respect of all queries relating to the services offered. Thus, if the Reseller anticipates offering a particular feature, the Reseller must have a thorough knowledge of the feature.
14.4 The Reseller agrees and warrants that he or she has the necessary knowledge to create and maintain the third party's anticipated Webspace. Reseller agrees that it is not the responsibility of Neo Code Software to provide this knowledge or client Support outside of the defined service of Neo Code Software.
15. Pricing
15.1 All prices are subjected to change and will be updated on Neo Code Software web pages.
16. Modification of Terms and Conditions
16.1 Neo Code Software reserves the right to change the terms, conditions, and notices under which the Services are offered, including but not limited to the charges associated with the use of the Services. Changes in the service fees will take effect at the end of the Clients' prepaid term; the continuation use of the Services beyond the date of such change shall constitute acceptance by the Client of the Agreement.
17. Intellectual Property Rights
17.1 The Client acknowledges that the data, information and/or content, including but not limited to text, software (including any HTML, WML, java, java script, java or CGI script or any other computer code), music, sound, photographs, video, graphics, graphical user interface, forms, diagrams or other material, used in connection with, incorporated or contained in or presented to the Client through the Neo Code Software Website (all the aforementioned data, information, content and/or materials to be collectively referred to as "Content") are the exclusive property of Neo Code Software and/or its third party licensors and are protected by intellectual property laws, including but not limited to, copyright and trademark laws.
17.2 The Client warrants that it has the right to use the materials (including any images and applicable trademarks) displayed in/ on the Neo Code Software Website and agrees to grant Neo Code Software a non-exclusive, world-wide royalty-free, irrevocable license and right to use (which will include the right to copy, reproduce and/or publish) the aforesaid materials (including any images and applicable trademarks) displayed in /on the Neo Code Software Website or any part thereof as well as to exercise all copyright and rights of publicity over such materials, including the use of such materials or part thereof in any advertising material.
17.3 No part of parts of the Content hereof may be reproduced, distributed, republished, commercially exploited, displayed, broadcast, hyperlinked or transmitted in any manner or by any means or stored in an information retrieval system without the prior written permission of Neo Code Software provided that permission is granted to download and/or print the materials from the Neo Code Software Website for personal, non-commercial use only and further provided the Client does not modify the materials and retains all copyright and other proprietary notices contained in the materials. The Client may not, without Neo Code Software's permission, create derivative works from the Content or insert a hyperlink to the Neo Code Software Website or "mirror" any material contained on the Neo Code Software Website on any other server. Further, the name of Neo Code Software or any other trade mark, name of logo belonging to or used by Neo Code Software (collectively, "Trade Marks") may not be used in any way, including in advertising or publicity pertaining to distribution of materials, without prior written permission. Neo Code Software prohibits use of any or all of the Trade Marks as a "hot" link to any other site unless establishment of such a link is approved in advance by Neo Code Software in writing.
18. Notices
18.1 All notices to a party shall be in writing and shall be made via e-mail to sales@neocodesoftware.com for notices to Neo Code Software or to the e-mail address that the Client provides to Neo Code Software as part of the registration data for notices to the Client, or such other address as either party may specify from time to time.
18.2 Notice shall be deemed given 48 hours after the e-mail is sent to the last email address provided by the Client.
18.3 As an alternative, notices may be sent by registered mail to Neo Code Software at the address provided by the Client, if any or to the mailing address that the Client had provided during the registration stage.
18.4 Neo Code Software may also broadcast notices or messages on the Neo Code Software Website on other matters of importance and in such event, such broadcast shall constitute as valid notice to the Client.
19. General provisions
19.1 In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any remaining provisions.
19.2 Neo Code Software and the Client agree to allow a court or arbitrator to replace such invalid, unenforceable or void provision with a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable or void provision.
19.3 Neo Code Software's failure to act with respect to a breach by the Client does not waive its right to act with respect to subsequent or similar breaches.
19.4 This Agreement shall exclusively be governed by and construed in accordance with the laws of the Republic of US. The Client hereby consents to submit to the exclusive jurisdiction of the US courts.
19.5 This Agreement and any modifications hereto constitute the entire agreement between the parties with regard to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter.
19.6 Nothing in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as partners for any purpose.
20. Acknowledgement
The Client acknowledges as follows:
(a) the Client has read understood and accepts the terms of this Agreement; and
(b) that this Agreement has the same force and effect as a signed agreement.
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