Conditions of Service Policy

Effective Date: January 3, 2005

Introduction

Hypersonic Internet Services and its affiliates ("Hypersonic") is committed to being the best possible network citizen. To assist us in protecting the usefulness and enjoyment of the Internet for our Customers and for other users, we require that our Customers comply with the terms of this document, which outlines our policies on Terms of Service and Acceptable Use of our services (the "Policy").

This is a contract between you (“you” or “your”) and Hypersonic Internet Services ("Hypersonic"). It states the terms and conditions which apply to your purchase and use, in any manner, of the Hypersonic web hosting, e-mail and domain services (collectively, the "Services"), as described at http://www.hypersonic.ca (the "Site").

When using Hypersonic hosting services, software libraries, personal or business web pages or any other message or Internet Services that may be available to the Customer on or through Hypersonic Internet Services' systems (collectively, the "Internet Services"), the Customer is prohibited from engaging in certain activities which include, but are not limited to, those described in this Policy.

For the purposes of this Policy, a "Customer" is an individual or organization that has a service agreement or contract with Hypersonic for use of the Internet Services, or otherwise uses the Internet Services.

If the Customer engages in any of the prohibited activities described below it may, at the sole discretion of Hypersonic and without notice to the Customer, result in the immediate (1) restriction, suspension or termination of the Customer's use of the Internet Services (including without limitation the Customer's Hypersonic Internet access or hosting service), without compensation to the Customer, (2) blocking or filtering of the Customer's content, data or materials, (3) application of complaint processing fees, disconnection fees and additional service charges to the Customer's account, (4) deletion of the Customer's content, data or materials from Hypersonic servers, or (5) involvement of law enforcement agencies. Such activities may also result in civil or criminal liability. The foregoing applies notwithstanding any language or term to the contrary contained in any agreement that the Customer may have with Hypersonic.

The Customer is responsible for use of the Internet Services by any third party who directly or indirectly utilizes the Internet Services provided by Hypersonic to the Customer, whether or not such use has been authorized by the Customer.

BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO. YOU ARE SOLELY RESPONSIBLE FOR USE OF THE SERVICES BY ANY OF YOUR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND ANY OTHER END USER OF THE SERVICES (COLLECTIVELY, THE “END-USERS”). YOU AGREE TO ENSURE THAT END-USERS COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, ANY APPLICABLE DOMAIN NAME REGISTRATION AGREEMENTS AND ALL POLICIES AND GUIDELINES (ALL AS AMENDED FROM TIME TO TIME) INCORPORATED BY REFERENCE HERETO

Term and Termination

Term. The Services are provided on a fixed term basis and shall be provided, unless Hypersonic receives additional payment from you, until the last day of the fixed term (“Termination Date”). Either party may at any time terminate this Agreement, prior to the Termination Date, provided that Hypersonic will provide the Services until the Termination Date. No credits shall be provided to you for the value of the Services between the date that you notify Hypersonic that you no longer wish to receive the Services and the Termination Date.

Notice of Termination. You must provide Hypersonic with notice of termination in writing by e-mail (from the email account specified by you when first ordering the Services) to info@hypersonic.ca. You shall provide Hypersonic with sufficient identification information so that Hypersonic may properly identify you and your account. Any notice of termination will be effective thirty (30) days following Hypersonic's receipt thereof.

Liability and Obligations on Termination. Should the Agreement expire or be terminated for any reason, Hypersonic will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of profits or sales (anticipated or actual), goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date. Hypersonic shall not be obligated to notify any third party of the termination of your account or provide any termination assistance. Without limiting the generality of the foregoing, Hypersonic shall have no obligation to forward any email messages, data, information or other content related to your use of the Services, and you acknowledge that all such email messages, data, information and content may be immediately deleted by Hypersonic.

Charges. You agree to pay all fees and charges (and applicable taxes) incurred which relate to your use of the Services, in accordance with the rates, terms and conditions established from time to time byHypersonic. Such rates, terms and conditions will be posted on the Site or otherwise made available to you byHypersonic. Hypersonic shall begin charging you on the date that you subscribe for the Services, unless otherwise specified by Hypersonic. All prices on the Site are net of tax and you shall be responsible for the payment of all federal, provincial, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Hypersonic's net income.

Payment. All charges for the Services must be paid in advance according to the then current price applicable to the Services. When ordering the Services through the sign-up server at the Site, you must elect to pay for the Services by credit card. Hypersonic reserves the right to modify the forms of payment it will accept, at any time, in its sole discretion.

Credit Card Payment. When you pay for the Services by credit card, you expressly authorize Hypersonic or its agents to charge all fees and charges incurred by you under this Agreement to such credit card, and such authorization will survive termination of this Agreement until there are no charges owing by you under this Agreement. If you use a credit card and Hypersonic does not receive payment from the card issuer, you agree to pay all amounts due, upon demand by Hypersonic. You must notify Hypersonic of any changes to your credit card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Hypersonic from charging your account.

Failure to Pay. If you fail to pay any fees and taxes within ten (10) days from applicable due date for credit card payments, late charges of the lesser of one and one-half per cent (1.5%) per month (i.e. 18% per annum) or the maximum amount allowable under applicable law shall also become payable by you to Hypersonic. In addition, your failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, justifying Hypersonic's immediate suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstating the Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, legal fees, court costs and collection agency fees.

Bandwidth, Storage, and E-Mail Use. You agree that use of the Services hereunder will not exceed the bandwidth, storage and E-mail usage limits set out in the Site for the Services ordered by you. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, Hypersonic may, in its sole discretion, assess you with additional charges according to Hypersonic's then current pricing policy, suspend the performance of the Services, or terminate this Agreement. In the event that Hypersonic elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees. Warning messages will be emailed to you as you exceed 80% and 90% of your package's respective bandwidth and disk space limits. If payment for extra usage is not received within two weeks of the invoice date, the expiry date of the account will be adjusted according to the amount outstanding.

Domain Names. As part of the Services, you will provide Hypersonic with a registered domain name or names or Hypersonic will register such domain name(s) selected by you, on your behalf and in your name, provided that such domain name is available for registration and does not violate any registrar’s policies, or any law or regulation. You agree to promptly reimburse Hypersonic for any fees paid by Hypersonic to any registrar with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Services, upon your request Hypersonic will attempt to register with the registrar an alternative domain name chosen by you. You agree to be bound by the terms the registrar’s then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of a domain name. The inability to use a domain name shall not entitle you to a refund by Hypersonic of any fees paid with respect to the registration of such unusable domain name. There is no charge for indefinite parking of domains on Hypersonic servers or to transfer to another service provider. However, in the event a domain that was registered by Hypersonic is transferred to another service provider, and requires manual intervention by Hypersonic support staff to complete the transfer, there will be an administrative transfer cost charged for each domain plus applicable taxes. Domain Parking does NOT include any hosting services. You may not submit your own DNS entries because Hypersonic is NOT a Registrar and hosting services for domain names residing on the Hypersonic system must be provided by Hypersonic. Domain name payments are non-refundable. Once a domain name is registered, the WHOIS database stores the information and is kept there for a period of one year, until the date of renewal. Payment with respect to domain names will NOT be refunded or credited to your credit card. You are responsible for spelling a domain name correctly while registering it online. Hypersonic will not provide refunds or credits for misspelled domain names.

Criminal Offences

While using the Internet Services, the Customer is prohibited from, in Hypersonic's sole judgment, posting, uploading, reproducing, distributing or otherwise transmitting information or materials where such activity constitutes a criminal of fence or from otherwise engaging in or assisting others to engage in any criminal of fence including, but not limited to, those of fences listed below:

• Communicating hatred
• Pyramid selling
• Unauthorized use of a computer
• Mischief in relation to data
• Fraud
• Defamatory libel
• Obscenity
• Child pornography
• Harassment/stalking
• Uttering threats

Civil Offences and Violations of the Rights of Others

While using the Internet Services, the Customer is prohibited from, in Hypersonic's sole judgment, posting, uploading, reproducing, distributing or otherwise transmitting information or materials where such activity gives rise to civil liability or from otherwise violating the rights or assisting others to violate the rights of Hypersonic or any third party, including, but not limited to, the violations listed below:

• Copyright infringement
• Trade-mark infringement
• Patent infringement
• Misappropriation of trade secrets
• Defamation
• Other Prohibited Activities

While using the Internet Services, the Customer is prohibited from engaging in or assisting others to engage in any activity that, in Hypersonic's sole judgment, (1) violates applicable policies, rules or guidelines of Hypersonic or other on-line service providers, (2) disrupts or threatens the integrity, operation or security of any Internet Service or any computer or Internet system, (3) elicits complaints from other Internet users or Internet service providers, (4) is contrary to any law or regulation, or (5) is otherwise objectionable. Examples of such prohibited activity include, but are not limited to:

• Obstructing or bypassing computer identification or security procedures.
• Engaging in unauthorized computer or network trespass.
• Maintaining a relay service open to the general public.
• Engaging in denial of service attacks.
• Posting, uploading, reproducing, distributing or otherwise transmitting any data, information or software that constitutes a virus, Trojan horse, worm or other harmful or disruptive component.
• Exporting equipment, software, or data outside of Canada or the U.S. in contravention of applicable export control legislation
• Falsifying address information, modifying message headers to conceal the Customer's identity or impersonating others, for the purpose of circumventing this Conditions of Service Policy.
• Posting, uploading, reproducing, distributing, otherwise transmitting, or collecting responses from unauthorized or unsolicited duplicative e-mail messages, junk or bulk e-mail messages, chain letters, newsgroup postings or other "spam" (Hypersonic reserves the right to determine, in its sole discretion, whether a message constitutes "spam").
• Engaging in any conduct that directly or indirectly encourages, facilitates, promotes, relies upon or permits the foregoing prohibited activities including, without limitation, failing to implement reasonable technical or administrative measures to prevent spam, viruses and worms.

Cooperation with Other Providers

Hypersonic may cooperate with other on-line service providers to discourage and resist abuses of acceptable use policies. Hypersonic reserves the right to take corrective action against the Customer upon notification to Hypersonic of unacceptable activities by the Customer on other networks. The Customer is prohibited from using the services of another provider to engage in or facilitate any activity that violates this Conditions of Service Policy.

Indemnification

The use of all Hypersonic Internet Services accounts, services and other offerings is entirely at the risk of the Customer. Hypersonic Internet Services specifically disclaims all warranties of merchantability or fitness for a particular purpose. In no event shall Hypersonic Internet Services be liable for any loss, loss of data, or other commercial damage, including but not limited to special, incidental, consequential or other damages. Customer agrees that it shall defend, indemnify, save and hold Hypersonic Internet Services harmless from any and all demands, liabilities, losses, costs and claims, including legal fees asserted against Hypersonic Internet Services, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, it’s agents, employees or assigns. The Customer also agrees to indemnify and hold harmless Hypersonic from all demands, claims, proceedings, awards, action, damages, losses, costs, charges and expenses, including legal fees, incurred by or made against Hypersonic, which result from or relate to violation by the Customer of this Conditions of Service Policy. The Customer shall give Hypersonic prompt notice of any such demand, claim or proceeding that the customer is aware of. Customer agrees to defend, indemnify and hold harmless Hypersonic Internet Services against liabilities arising out of:

1) any injury to person or property caused by any products sold or otherwise distributed in connection with a Hypersonic Internet Services account;

 

(2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party;

 

(3) copyright infringement and

 

(4) any defective products sold to customer from a Hypersonic Internet Services server.

 

Hypersonic Internet Services shall be the sole arbitrator of what violates this Policy.

Miscellaneous Components

You acknowledge that the Services do not include, without limitation, content design, development, FTP master maintenance, uploading and publishing, Common Gateway Interface scripts and other such executables and that all of the foregoing are your responsibility. You may not compile or install binary files other than the ones provided by Hypersonic. Hypersonic does not make C compilers available and the PERL binaries provided will not have networking support (for example, socket ph, ftp.pl, etc.) You may use ftp to access your home directory for the purpose of installing and editing your web pages. Each business-level account comes with its own cgi-bin. You are free to use any CGI scripts you wish, however we reserve the right to disable any CGI script that affects normal server operation or service to other Hypersonic customers. In addition, please be aware that there are certain scripts which you are not permitted to use on Hypersonic's servers under any circumstances. Please refer to our Banned Scripts List, below. You will be notified in 24 hours about an offending cgi script.

Chat Room Policy

Hypersonic does not allow chat rooms excepting those which can be installed via the control panel. You can however link your site to a chat provider. Some examples of chat providers are: www.liveperson.com and www.livehumanhelp.com.

Banned Scripts List

Please ensure that you do not install ANY of the following on your account:

• IRC Egg Drops & Related Programs
• The Anonymizer
• UltimateBBS (all versions)
• Ikonboard (all versions)
• YaBB & YaBB SE (all versions)
• Shell, SSH, Telnet Scripts and all alternatives
• Proxy Servers / Proxy Scripts
• Soap Mailers
• Any chat scripts
• formmail.pl, formmail.php, formmail.cgi OR alternative names for the same script. Please note that we have a SECURE version of the SAME script for you to use, available from your control panel. Do not install your own version.
• Any script using large flat-file databases

These scripts can cause the server to slow down or can cause security risks. Any account with these scripts on will be subject to immediate suspension. We will notify you within 24 hours of this action. Repeated offences are liable to account termination without refund.

If you have any queries about any script you would like to run, and are not certain about its suitability for our servers, please provide as much information about the script in a helpdesk ticket to our staff. If you are not yet a client, please email us at info@hypersonic.ca

Hypersonic's Property

You hereby acknowledge and agree that all programs (in object code and source code form), data, services, processes, designs, technologies, materials and all other things comprising the Services are owned by and shall remain the sole property of Hypersonic, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws. Hypersonic shall also maintain and control ownership of all Internet protocol ("IP") numbers and email addresses that may be assigned to you by Hypersonic. Hypersonic reserves, in its sole discretion, the right to change or remove any and all such IP numbers and email addresses at any time.

Your Content

Hypersonic does not claim ownership of information, materials, software or other content (collectively, the "Content") that you post, upload, input, provide, submit or otherwise transmit to Hypersonic or any third party, using the Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to Hypersonic or any third party, using the Services, you have thereby granted Hypersonic a royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such content to the extent reasonably required by Hypersonic for the purposes of rendering and operating the Services to you under this Agreement or to ensure adherence to or enforce the terms of this Agreement. You expressly (a) grant to Hypersonic a license to cache the Content, and (b) agree that such caching is not an infringement of any of your rights or any third party's rights.

Reservation of Rights and Hypersonic's Liability

Nothing in this Conditions of Service Policy shall be interpreted to limit Hypersonic's rights or remedies in any way with respect to any of the foregoing activities (including, without limitation, Hypersonic's rights or remedies under any agreement between Hypersonic and the Customer) and Hypersonic reserves all rights and remedies available to it with respect to such activities at law or in equity. Hypersonic does not assume liability to the Customer or any other party for failure to enforce the terms of this Conditions of Service Policy.

Changes to this policy

Hypersonic reserves the right to change this Conditions of Service Policy at any time and without prior notice. The Customer is responsible for reviewing this Conditions of Service Policy, posted on Hypersonic's web site, periodically, to obtain timely notice of any such changes.

Questions?

If you have any questions about this Policy, please e-mail Hypersonic at info@hypersonic.ca or call us at 604-484-5345.

Effective Date: January 3, 2005