Terms of Service
Terms Of Service (TOS), version 2 – September 2nd 2007
TOS applies to all LND Marketing clients.
TOS applies automatically to all Host With LND clients through their parent company LND Marketing upon subscription to the Services including subscription through a third party or any commercial partner. BY SUBSCRIBING TO LND Marketing SERVICES YOU ACCEPT THE POLICIES LISTED IN THIS DOCUMENT AND ACCEPT TO RESPECT THEM. The service order is described as the package description as presented on the web site.
LND Marketing agrees to provide services described on the website to the customer subject to the following Terms of Service (TOS). Use of LND Marketing services constitutes acceptance and agreement to these Terms Of Service and all attachments. LND Marketing will make all reasonable efforts to provide a quality service to the Customer.
LND Marketing will use the customer’s personal information only as reasonably necessary to provide contracted services and to collect fees owed and will not disclose such information to any third party except as required by law as evidenced by an order of a court of competent jurisdiction and to collection services if needed. The Customer authorizes LND Marketing to use its name, business name and comments in marketing documents. At any time, the Customer can send a written notice to withdraw this authorization.
LND Marketing will provide to the Customer the Internet Connectivity, IP Addresses and Internet Traffic services (collectively, the “Bandwidth Services”), as specified in the Service Order.
LND Marketing Hosting
The Customer agrees to use bandwidth as described in the Acceptable Usage Policy.
LND Marketing Business and LND Marketing Dedicated
The Customer agrees to use bandwidth as described in the Acceptable Usage Policy and agrees that bandwidth shall not exceed the number of gigabytes per month for the Services ordered by the Customer on the Service Order Form and that number of gigabytes is the sum of the incoming and outgoing data transfer for a period of 1 month. LND Marketing will monitor the Customer’s bandwidth usage and shall have the right to take corrective action if the Customer’s bandwidth usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges based on the per gigabyte price stated on the Service Order.
Any IP Addresses allocated to the Customer by LND Marketing must be maintained by the Customer in an efficient manner and utilized at 80% within 30 days of assignment by LND Marketing to the Customer. Failure to comply with this Section may result in the revocation of IP Addresses by LND Marketing after five days notice to the Customer. LND Marketing shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to the Customer by LND Marketing, and LND Marketing reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. All IP requests must be fully justified.
Upon request by the Customer, LND Marketing may at its option, provide the Customer with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support, in connection with the Customer’s use of the Customer Space and Bandwidth Services. The Customer agrees to pay the hourly rate of $125 U.S for those other services. It’s the sole discretion of LND Marketing to charge this fee.
Installation, removal, replacement, maintenance and access to equipments
LND Marketing is the owner of the equipment used by the customer and grants a licence to use this equipment. The Customer has no rights on the equipment. Physical access to the equipment by the Customer is strictly prohibited.
If, in the determination of LND Marketing , acting reasonably, the Equipment, software or hosted applications used by the customer or the activities of the customer poses an immediate threat to the physical integrity of the Premises or the physical integrity or performance of the equipment or network of LND Marketing or any other user of the Premises, or poses an immediate threat to the safety of any person, then LND Marketing may perform such work and take such other actions that it may consider necessary without prior notice to the Customer and without liability for damage to the Equipment or Data for any interruption of the Customer’s (or its customers’) businesses. As soon as practicable after performing such work, LND Marketing will advise, by email, the Customer of the work performed or the action taken.
Under no circumstances will LND Marketing be obligated to provide insurance coverage for any Equipment or data owned by the customer and hosted in the Premises.
If the Customer is in default
If the Customer is in default of any of its obligations under this Agreement, then LND Marketing may in its sole discretion do any or all of the following: (i) without notice suspend access to the Customer Space, (ii) if the Customer’s default is non-payment of any sums due to LND Marketing , exercise all the rights and remedies of a secured party under applicable law.
Billing and termination
Invoices are sent by email. First Month’s Payment shown in the Service Order must be paid by the Customer to LND Marketing before commencement of the Term.
The Customer will pay LND Marketing the One-Time Set Up Fees and Recurring Monthly Fees specified in the Service Order, as well as any charges for Other Services the Customer will pay all applicable taxes levied against or upon the services stipulated in the Service Order (as amended by the parties from time to time) or otherwise provided by LND Marketing under this Agreement. All One-Time Install Fees will be payable in advance. Recurring Monthly Fees will be payable in advance upon the Customer’s chosen payment period. All other fees and the cost will be payable monthly and payment due on the renewal date. Except for the First Month’s Payment shown in the Service Order, which must be paid by the Customer to LND Marketing before commencement of the Term, all amounts will be payable in American dollars. Service interrupted for nonpayment is subject to a $50 reconnect charge. Accounts that are not paid 45 days after due date may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a Collection Fee. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS. Any payment not made when due will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%). Bounced checks are subject to a penalty fees of $20U.S.
All LND Marketing Hosting
The Customer will pay by pre-authorized payment to a Customer credit card, or by cheque of immediately available funds remitted to LND Marketing. Payment by check will only be accepted for 12 months prepayments.
Service will be interrupted on past due accounts after a 48 hours notification. Service interrupted for nonpayment is subject to a $25 reconnect charge. Accounts that are not collectible by LND Marketing may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a “Processing and Collection” Fee. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS.
Upon 30 days or greater written notice prior to the end of the initial commitment, LND Marketing may change any fees payable under this Agreement.
Term and termination
The term of this Agreement shall begin upon the date the server or space is installed and made available to the customer and shall be for the period stated in the commitment section of the Service Order. If no commitment is stated, the term will be of 1 month. Agreement is renewed for successive 1 month after initial commitment until terminated by either Party. After initial commitment stated on the service order, either party may terminate this Agreement on the account’s anniversary date (an account anniversary date corresponds to the day of the month at which an account was opened.) (i) for convenience on 48 hours before the next anniversary date written notice to the other party, or (ii) if the other party (x) commits a material default (which, in the case of the Customer, will include any failure to make any payment when due) and fails to rectify such default within 10 days after being given notice of such default by the other party, or (y) becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.
Cancellation requests must be made using the “Support Desk” control panel or in writing with the customer’s signature with at least 48 hours notice and sent to : LND Marketing, PMB 2543, Sudbury Ontario, Canada, P3A 4S9. You can also send the cancellation request by fax at 1-708-323-1084.
Service downgrades and upgrades
Service downgrades (for instance, when changing to a hosting package that offers fewer options) will take effect at the account’s anniversary date only (an account anniversary date corresponds to the day of the month at which an account was opened. For instance, if an account was opened on September 8, this account may be modified on the 8 of each month). Service upgrades, however, may take effect at any time.
Upon account activation, LND Marketing reserves space, equipment and resources for the customer’s needs. The Customer must pay its account even if he is not making any use of it.
The Customer hereby authorizes LND Marketing and gives consent to LND Marketing under applicable privacy laws for LND Marketing to obtain credit information and bank and other financial references regarding the Customer for the purposes of assessing the Customer’s credit worthiness, and the Customer will promptly execute and deliver to LND Marketing such further documents and assurances and take such further actions as LND Marketing may from time to time reasonably request in order to carry out the intent and purpose of this Section.
The Customer has 30 days following the account’s activation date to resilient his subscription with complete reimbursement of the monthly fees paid. Exclusions, terms and conditions of the guarantee are posted in the Service Guarantees section of our web site.
Guaranteed network availability
LND Marketing will provide 100% transit to the Internet to all the customers who have purchased said service from LND Marketing.
The present guarantee does not apply to administration packages, domain names, bandwidth or traffic billing, work billed hourly, setup fees and Premium hosting packages. Exception made of the hosting solutions, bandwidth consumed by the user during the period of operation will be billed at the rate of $1.00 USD per GB transferred.
Guaranteed electrical power
LND Marketing guarantees the electrical power supply of its datacenter to 100% for all the customers subscribed to a solution which includes an electrical supply port or an amp circuit. Exclusions, terms and conditions of the guarantee are posted in the Service Guarantees section of our web site.
Guaranteed hardware replacement
This guarantee is only applicable to LND Marketing Dedicated Server customers. At any time, dysfunctional dedicated server hardware will be replaced within 24 hours.
LND Marketing warrants that the Service(s) shall be provided in a workmanlike and professional manner. Upon LND Marketing’s breach of the foregoing warranty or any of the above-referenced “guarantees”, the Customer’s sole and exclusive remedy shall be to require LND Marketing to exercise commercially reasonable efforts to repair or replace the nonconforming Service(s); provided, however, that, with respect to any Service(s) which are interrupted or rendered inoperable due solely to LND Marketing’s breach of the foregoing warranties or the above guarantees, for any time period, the Customer shall also be entitled to a pro-rata refund of any Fees attributable to the interrupted or inoperable Service(s) in an amount determined by 1 day of refund for each 60 minutes interruption. Refunded amount on account of failures in any one month should not at any time exceed the monthly fee paid by the customer for that month.
LND Marketing will not be liable to any extent whatsoever for interruption, restriction, inoperability or malfunction of any Service(s) which is not caused solely by a breach of the warranties set forth in this Section. LND Marketing expressly reserves the right to suspend, interfere with, impair or terminate Service(s) as necessary for purposes of maintenance, upgrades or repair (either by LND Marketing or by any supplier, partner or independent contractor of LND Marketing.) or in the event of any circumstance which LND Marketing , in its sole discretion, deems necessary or desirable to prevent or remedy an impairment of, or harm to, the integrity or functionality of any Service(s) or any plant, services or facilities of any Indemnitees or of any third party, and neither the exercise nor the non-exercise of the foregoing rights or discretion shall constitute a breach of any provision of this Agreement.
EXCEPT AS SET FORTH IN THIS SECTION AND THE ABOVE GUARANTEES LND MARKETING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF UNINTERRUPTED OR ERROR-FREE OPERATION AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE(S) OR ANY ASPECT THEREOF, AND ALL WARRANTIES WITH RESPECT THERETO ARE HEREBY EXPRESSLY DISCLAIMED.
Limitation of Liability
THE CUSTOMER ACKNOWLEDGES THAT LND MARKETING WILL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS, OR LOSSES INCURRED BY THE CUSTOMER (OR ITS CUSTOMERS) CAUSED BY SUCH OTHER LICENSEES’ ACTS, EQUIPMENT, SOFTWARES, ACTIVITIES OR FAILURES TO ACT. THE LIMIT OF LND MARKETING ’S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE OR OTHERWISE TO THE CUSTOMER (OR ITS CUSTOMERS) CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER TO LND MARKETING UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 3 MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL LND MARKETING BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the control of the party affected (“Force Majeure”). If any Force Majeure occurs, the party claiming the Force Majeure will promptly notify the other. The party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This Section will not apply to excuse a failure to make any payment when due.
LND Marketing will make all possible efforts to provide a backup mechanism and keep complete backup copies of all hosting solutions. However, the customer must keep a personal backup copy of its software, sites, databases and all hosted content. LND Marketing should not be held responsible of any loss of data or data corruption.
The Customer in the normal course of its business may resell to its customers use (subject to all the terms of this Agreement) of the Customer Space, Resources and Bandwidth Services provided by LND Marketing to the Customer pursuant to this Agreement, except that the Customer will not allow such customers to interconnect with other users in the Premises Any act or omission of any such customer that would be a breach of this Agreement if committed by the Customer will be deemed a breach of this Agreement by the Customer. The Customer agrees to defend, indemnify and hold harmless LND Marketing , and its officers, directors and employees (collectively, the “Indemnities”), from any and all liabilities, costs and expenses, including reasonable legal fees, related to or arising from (i) any act or omission of any such the customer that would be a breach of this Agreement if committed by the Customer, and (ii) any claim by any such customer arising from use of the Premises, services provided by LND Marketing under this Agreement or otherwise from performance or non-performance by a party in any manner related to this Agreement.
Responsibility for Content
The customer is solely responsible for the content stored on and served by his servers.
This Agreement including the attachments hereto and any Service Orders signed by the parties constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LND MARKETING MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. In case of any dispute or inconsistency this main agreement, any attachments, and/or any Service Order, the Service Order will take first priority, this main agreement will take second priority and the attachment will take third priority in interpreting the parties’ rights and obligations.
Severability and Reformation
If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Choice of Law and Attornment
This Agreement shall be construed in all respects in accordance with the laws of the province of Ontario, Canada applicable to contracts enforceable in that province. Without regard to its conflicts of law provisions. The parties hereby irrevocably and unconditionally attorn to the non-exclusive jurisdiction of the courts of the jurisdiction where the Premises are located, and all courts competent to hear appeals therefrom.
Complaints or TOS & AUP violations must be reported to firstname.lastname@example.org, by fax (1-708-323-1084) or by mail at : LND Marketing, PMB 2543, Sudbury Ontario, Canada P3A 4S9.
Changes and rights
LND Marketing may vary these rules and regulations from time to time in its sole discretion, and the Customer will comply with all other reasonable security requirements that LND Marketing may impose from time to time, provided that the Customer has been given 30 days notice.