Definitions
"Promark" or "We" refer to PromarkDesigns.com , its subsidiaries and affiliates.
"Service" refers to the services provided by us and subscribed to by you and may include, but is not limited to, Website Hosting, Website design and programming, Software design and implementation, Hardware service and technical support.
"You" refers to the person or organization that uses or subscribes to PromarkDesigns.com’s Service.
General
This Agreement sets forth the Terms and Conditions that apply to use of the Service by you. By using the Service, you agree to comply with all of the Terms and Conditions set out in this document.
We shall have the right at any time to change or modify the Terms and Conditions applicable to your use of the Services, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice by us, which may be given by any means including, but not limited to, posting on our website, or by electronic or conventional mail. Any use of the Services by you after such notice shall be deemed to constitute acceptance by you of such changes, modifications or additions.
Our Services are provided on the basis of, and are subject to, service, facility and equipment availability. We reserve the right not to provide one or more Services where necessary facilities, equipment or services are not available for any reason whatsoever.
Term and Termination
The Service is for an initial term as agreed between us and shall automatically renew at the end of the initial Term unless terminated by either of us in accordance with these Terms and Conditions.
If you are dissatisfied with our service, or with any of our terms, conditions, rules, policies, guidelines, or practices in operating the Service, your sole and exclusive remedy is to terminate your Service agreement with us in accordance with our cancellation policy and discontinue using the Service. You must provide us with not less than five (5) days' written notice prior to the next billing date to advise us of your decision to terminate the Service agreement.
No refunds will be given for partial terms or for any initial registration fee.
We reserve the right to terminate any Service to you immediately and without notice for cause in the event that you breach this Agreement. We may, at our sole discretion, suspend your service in lieu of terminating this Agreement while we investigate the alleged breach of this Agreement.
Your Responsibilities
While using the Service you must comply with applicable laws at all times. You assume total responsibility and risk for your and your authorized users' use of the Service.
You are responsible for paying all charges necessary to use and access the Service. We will recognize only you as the person authorized to accept, utilize, manage, modify or terminate the Service.
Privacy
We collect and use personal information about you and your use of our Services ("Information"): (i) to consider initiating and to initiate, maintain and develop our relationship with you in connection with our offering and servicing of products and services; (ii) to administer billing and accounting services and security measures in relation to your business with us; (iii) to monitor your customer history, evaluate your credit standing and to share or exchange credit reports and information with credit reporting agencies and credit bureaus; (iv) to promote and to market additional products, goods and services offered by us, including by means of direct marketing; and (v) to comply with legal and regulatory requirements.
You consent to our collection from, verification with, communication to, any third party and our and their use of, Information for these purposes. You authorize these parties to give us the Information. You acknowledge that your name, address and telephone number are not considered confidential Information and may be disclosed by us. In addition, you agree that we may disclose Information to: (i) any person who, in our reasonable judgement, is seeking the Information as your agent; or (ii) a person involved directly or indirectly in supplying the Service to you, including, without limitation, our sales agents, to the extent the Information is required and used only for such purposes, including the efficient supply of Services to you, and provided that person is required to keep such Information confidential; or (iii) a person retained by us to collect amounts which you owe us or to enforce our rights under these Terms and Conditions, if the Information is required for, and is to be used only for that purpose and that person is required to keep such Information confidential.
We may also use Information in our records for as long as it is needed for the purposes described above and your consent remains valid after the termination of our relationship with you. You understand and agree that, unless we are notified in writing (letter, email or facsimile) to the contrary, we are further authorized to disclose, on a confidential basis, to any party with whom we have business relations all relevant information relating to your dealings with us and our Service.
Our Privacy Policy sets out our obligations with respect to the safeguarding, collection and use of your personal information and is subject to modification from time to time by us. You agree to review the Privacy Policy periodically to become aware of any such modifications. Continued access or use of our Service shall be deemed to be conclusive acceptance by you of the modified Privacy Policy.
Service Rates
The prices for the Service are made available on our web site and are subject to change without notice.
Invoices
We will invoice you monthly, in advance of the provision of Service, unless otherwise specified in these Terms and Conditions. The invoice will include, and you will be responsible for, any applicable provincial and federal taxes, as well as interest charges on overdue invoices.
You must bring invoice inquiries and disputes to our attention within 30 days of the invoice date and failure to do so will be deemed to be an admission that the entire contents of the invoice are accurate.
Payment Terms
Billing will be based on the whole term of the contract. You will be charged for the whole term of the contract upfront, and we will charge your account for whole amount immediately.
Invoices are due on the date specified on the invoice. Interest will accrue on unpaid amounts as and from 30 days after the invoice date at the rate of 1.5% per month (19.56% per annum), or such other rate as we may determine from time to time. Payment shall be made by credit card (Visa, MasterCard or American Express) or pre-authorized payment. Should a payment be rejected by your financial institution for any reason, you will be charged a fee of $25.00.
Should you choose to pay invoices by any method other than by monthly credit card charges you may be subject to a credit check. We reserve the right to examine your credit record before we provide, continue or reinstate Services to you. You authorize us to investigate your creditworthiness and agree, from time to time, to provide appropriate authorizations and financial information as we may reasonably request for this purpose.
Service Interruption
We may suspend the Service at any time for any duration of time, without penalty or liability to ourselves, where necessary. You agree that it may be necessary for us to temporarily suspend our Service for technical reasons or to maintain our network, equipment or facilities. We shall not bear any liability whatsoever for: (i) any such suspensions of Service; (ii) the termination of Service pursuant to these Terms and Conditions; (iii) suspension or termination of Service due to your non-payment of amounts or deposits due; (iv) suspension or termination of Service due to your unlawful or improper use of facilities or Service by you; (v) your inability to access any Services; or (vi) suspension or termination of the Service for any other reason at our sole discretion.
Limitation of Liability
The Service is provided on an "as is" and "as available" basis and use of the Service is at your own risk. We make no representations or warranties whatsoever, either express or implied, with respect to the Service or any service, merchandise or information provided through the Service, including without limitation any representation or warranty with respect to the network transmission capacity of any common carriers used by us or the accuracy or quality of the Service. There is no warranty of title, non-infringement nor any implied warranty of merchantability or fitness for a particular purpose. It is solely your and your authorized users' responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services and other information and the quality and merchantability of the Service and all merchandise and services provided through the Service generally.
Neither we nor our suppliers warrant that the Service will be uninterrupted or error free.
Without limiting the generality of the foregoing, we and our suppliers, and our respective directors, officers and employees (collectively, in this paragraph, "PromarkDesigns.com"), are not responsible or liable to you or third parties for any claim, loss, damages, liability or expenses you or others may suffer or incur as a result of, arising out of, or in any way connected with the Service, any use of it or interruption in it, or our equipment, whether through act or omission, negligence or otherwise, and whether direct or indirect. Without limitation, PromarkDesigns.com is not liable for any incidental, special, consequential, punitive, aggravated or exemplary damages, or loss of use, data, business, income or profits, even if PromarkDesigns.com has been advised of the possibility of such claim, loss, damages, liability or expenses by you or others. You assume all responsibility and liability with respect to mistakes, omissions, interruptions, errors, defects, delays in operation or transmission, or any failure of performance. The limitations on liability contained in this Agreement shall survive the termination of this Agreement. Without limiting the generality of the foregoing, in no circumstances shall our liability to you exceed one (1) month's user fee.
Your Indemnification of PromarkDesigns.com
You shall indemnify and hold us and our directors, officers and employees harmless against all claims, loss, damages, liability or expenses that we and/or they may suffer or incur, directly or indirectly, arising out of, resulting from or in connection with your use of the Service. Indemnification includes, but is not limited to, claims by third parties, the installation, presence, maintenance, and removal of any and all equipment, the violation by you of the Agreement in force from time to time, and legal fees, disbursements and all other reasonable costs incurred by us in connection with any legal, collection or other proceedings brought by us against you related to this Agreement.
Relationship
The relationship between us constitutes that of independent contractors. You do not possess, nor are you able to distinguish yourself as having, any authority to act for or create any obligation of, or make any representation on behalf of us or in our name. You shall not use, in any manner or circumstance whatsoever, trademarks, trade names, logos or designs owned or licensed by us.
Inurnment/Assignment
These Terms and Conditions are binding upon, and shall enure to, our benefit and that of our respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You shall not assign or transfer your rights or obligations hereunder or otherwise in respect of the Service without our prior written consent.
Notice
Any notice by you to us shall be submitted in writing by e-mail to: general@promarkdesigns.com Please visit our website www. PromarkDesigns.com for additional contact information.
Force Majeure
Neither of us shall be liable for any delay, interruption or failure in the performance of our obligations if caused by acts of God, declared or undeclared war, fire, flood, storm, slide, earthquake, power failure, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labor disputes, or other similar events beyond the control of the party affected that may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving the particulars of the event. The party so affected shall use reasonable efforts to eliminate or remedy the event.
Unenforceable Provisions
If any part of these Terms and Conditions is found to be invalid or unenforceable under applicable law, such part shall be ineffective to the extent of such invalid or unenforceable part only, without in any way affecting the remaining parts of these Terms and Conditions.
Governing Law
The rights and obligations of the parties pursuant to these Terms and Conditions is governed by, and shall be construed in accordance with, the laws of the Province in which your designated billing address is situated, and the Federal laws of Canada applicable in said Province.
The Service originates in Canada and is directed to residents of Canada.
You may be subject to other local, provincial and national laws. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of British Columbia for any dispute arising under or relating to this Agreement and waive your right to institute legal proceedings in any other jurisdiction. We shall be entitled to institute legal proceedings in connection with any matter arising under this Agreement in any jurisdiction where you reside, do business or have assets.
Waiver
No waiver of any of the provisions of these Terms and Conditions shall be deemed to constitute a waiver of any other provision nor shall such a waiver constitute a continuing waiver unless otherwise expressly provided in writing duly executed by the party to be bound thereby.
Entire Agreement
These Terms and Conditions represent the complete Agreement and understanding between us with respect to the Service and supersede any other written or oral agreement.
Note: Product names and terms used throughout these Terms and Conditions are registered or pending trademarks of, or are licensed by, PromarkDesigns.com. All other product and/or brand or company names mentioned in these Terms and Conditions or otherwise in connection with the Service are the trademarks of their respective owners.
Contract for Virtual Server with PromarkDesigns.com
Content
Transmission, storage, or presentation of any information, data or material in violation of any Canadian Federal, Provincial or City law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret and other statute. The subscriber agrees to indemnify and hold harmless AMS from any claims resulting from the use of the service which damages the subscriber or any other party.
Also prohibited are sites that promote any illegal activity or present content that may be damaging our servers or any other server on the internet. Links to such materials are also prohibited.
Examples of unacceptable content or links: Pirated software hacker programs or archives, warez sites, Any Site that consumes more than 10% of system resources
Following are a list of sites that will often require more than 10% of our systems resources: Multiple domains residing at a single IP address, domains with archives or galleries, (i.e. .gif, .jpg, .exe, .zip, .tar, etc.), and domain accounts offering download files.
We are not saying that your web site can not contain such files, however if at any time they consume 10% or more of our systems resources you will be contacted to resolve the problem.
Traffic Usage
All account plans come with a predetermined amount of traffic allowance. We monitor all accounts and bill $6.00 for each gig of traffic exceeded.
Spamming, or the sending of unsolicited email, from our servers or using an email address or domain that is maintained on our servers machine as reference is STRICTLY prohibited. PromarkDesigns.com will be the sole arbiter as to what constitutes a violation of this provision.
Chat Rooms
We do not allow clients to install their own chat rooms. These tend to be a large drain on system resources and we cannot allow it as an account option.
Background Running Programs
We may allow programs to run continually in the background. These are considered on a case-by-case basis and an extra charge will be incurred based on system resources used and operational maintenance needed.
IRC
Sorry, but we currently do not allow IRC or IRC bots to be operated on our servers.
Server Abuse
Any attempt to undermine or cause harm to a server, or customer, of PromarkDesigns.com is strictly prohibited.
Refusal of Service
We reserve the right to refuse, cancel, or suspend service at our sole discretion.
Billing
Recurring Billing: We do not send out invoices. All credit cards are billed automatically monthly. It is the clients’ responsibility to ensure that they have sufficient credit to cover this transaction. In the event that there is insufficient credit, as a courtesy we will send an email notification at which point we will need to be provided with another credit card within 48 hours. If we do not receive a response within 48 hours the account will be deactivated and any accounts under that account plan.
Account Deactivations: Any account deactivated due to non-payment must contact the billing dep. to reactivate it. We cannot guarantee that your account will be activated.
Limitation of Liability
PromarkDesigns.com shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from PromarkDesigns.com servers going off-line or being unavailable for any reason whatsoever. Furthermore, PromarkDesigns.com shall not be responsible for any claimed damages, including incidental or consequential damages, resulting from the corruption or deletion of any web site from one of PromarkDesigns.com. All damages shall be limited to the immediate termination of service.
Violations of these Acceptable Uses Policies should be referred to PromarkDesigns.com Web Team. All complaints will be investigated promptly. Failure to follow any term or condition will be grounds for immediate account deactivation.
Disclaimer
PromarkDesigns.com cannot be held liable for system downtime, crashes, or data loss. We cannot be held liable for any predicted estimate of profits in which a client would have gained if their site was functioning. Thus, certain equipment, routing, software, and programming used by PromarkDesigns.com are not directly owned or written by PromarkDesigns.com. Moreover, PromarkDesigns.com holds no responsibility for the use of our clients accounts. If any terms or conditions are failed to be followed, the account in question will be automatically deactivated. We reserve the right to remove any account without advanced notice for any reason without restitution as PromarkDesigns.com sees fit.
Account Activation
By activating your account with PromarkDesigns.com, you agree to the above policies and disclaimer. Upon requesting account activation, you are required to accept these policies, guidelines, and disclaimer and a copy of your acceptance is forwarded along with your activation request to be maintained within your account information.
NOTICE: If you sign up for an account and do not follow our terms. No refunds will be given. We will however let you know by email or phone before any action is taken and you will have a chance to solve the matter.
FURTHERMORE, PromarkDesigns.com retains the right to change any or all of the above Policies, Guidelines, and Disclaimer without notification.
