Terms of Service

4.1 General

• (a) Changes to Services. Emmatt may modify its services and the corresponding Service Descriptions from time to time. Emmatt may also send any email notice of the change to its affected customers.

4.2 Hosting Services.

• (a) Any Service identified as a “Hosting Services” in its Service Description is a Hosting Service.
• (b) Emmatt uses 3rd party hosting providers that use state-of-the-art technology and employ all reasonable commercial strategies to ensure reliable hosting services are maintained.
• (c) Back-up. You acknowledge that unless you subscribe to a Service that expressly includes the independent backup of Your Content as a service, Emmatt’s back-up activities are primarily for Emmatt’s own disaster recovery purposes, and that YOU ARE RESPONSIBLE FOR THE STORAGE, BACK-UP AND ARCHIVING OF YOUR CONTENT
• (d) Maintenance Window. When reasonably possible, any maintenance of the hardware used to host your website(s) will be conducted between 12:00 a.m. and 3:00 a.m. (local time in Toronto, Ontario).
• (e) Availability. A Hosting Service is “Available” if the: (a) the hardware being used to provide it is operating; and (b) the Internet connection provided as part of the Hosting Service is operational.
• (f) Measure. Emmatt will use reasonable efforts to ensure that the Hosting Services will be Available other than for “Scheduled Maintenance” at least 99.9% of the time as provided by Emmatt’s 3rd party hosting providers, measured monthly.
• (g) Maintenance of Domain Names. You are responsible for the ongoing maintenance, control and use of any domain name registered in your name and for any fees or taxes associated with its maintenance. To maintain your domain name registration you will need to interact directly with the applicable registrar. FOR GREATER CLARITY, YOU ARE RESPONSIBLE FOR: (i) RENEWING THE REGISTRATION AND ENSURING THAT IT DOES NOT LAPSE; AND (ii) ADDRESSING ANY ISSUES RELATING TO YOUR DOMAIN NAME. EMMATT IS NOT RESPONSIBLE FOR DOING SO.

4.3 Resale. You are not permitted to resell any of the Services provided by EMMATT.
4.4 Additional Services. Any additional services related to the Hosting Services that are requested by you and that Emmatt in its sole discretion provides (“Additional Services”) are deemed to be Services provided pursuant to these TOS, and they will be provided at Emmatt’s then current rates.
4.5 Support.

• (a) Support is available Monday through Friday from 9am to 4:30pm EST. There may be a charge for support provided by Emmatt’s staff at the discretion of Emmatt.

6.1 Unacceptable Use. Unacceptable use refers to any unlawful, illegal or inappropriate use as set out in this section 6. You may not use the Services or Emmatt’s technology infrastructure in any manner that constitutes an unacceptable use. Unlawful of illegal use is the creation, collection, transmission, storage or exchange of any material in violation of any applicable law or regulation. Inappropriate use includes any use or behaviour that may: (i) jeopardize Emmatt’s products, services, technology infrastructure or ability to operate; or (ii) expose Emmatt to civil liability. Unlawful, illegal or inappropriate use includes use of the Services to:

• (a) possess, store, view, download, transmit, distribute (by any peer-to-peer service or otherwise) or traffic any materials that:
  • (i) include child pornography; pornography of any kind;
  • (ii) infringe any person’s copyright or other intellectual property right (including unlicensed or improperly licensed applications, music, games or other materials);
  • (iii) wilfully promote hatred against or defame any identifiable individual, group or other organization;
  • (iv) can be used for attacking computer systems and networks and defacing websites (including scripts, executables or other tools);
  • (v) include any form of malware
• (b) make threats to a person’s safety or property;
• (c) defame other persons;
• (d) interfere with the services that Emmatt provides to its other customers;
• (e) interfere with, disrupt or damage the servers used by Emmatt to provide such services, those of Emmatt’s suppliers or those of Emmatt’s other customers;
• (f) impersonate or falsely state or otherwise misrepresent your identity or affiliation with any person or entity;
• (g) wilfully bypass or subvert the physical, logical or procedural safeguards such as firewalls, web-filtering software or other access controls used by anyone to gain unauthorized access to anyone’s technology infrastructure or distributing computer programs designed to assist in doing so;
• (h) any act in violation of any applicable local, provincial, state, national or international law or regulation including any laws relating to:
  • (i) the export of data or software;
  • (ii) the protection of human rights;
  • (iii) the promotion of hatred;
  • (iv) defamation;
  • (v) criminal offences;
  • (vi) the protection of intellectual property; or
  • (vii) including the sending of commercial electronic messages without consent from the recipients.

6.2 Disruptive Uses. You may not use the Services or Emmatt’s technology infrastructure in any manner that interferes with or disrupts Emmatt’s other customers. When any of the following events occurs in relation to any hosted web site, it is a disruptive use, a breach of these TOS and Emmatt may exercise its rights under section 6.6 including to suspending Services:

• (a) generating a daily, weekly or monthly volume of network traffic that is excessive in relation to amount of network traffic typically generated by Emmatt’s other clients who have purchased similar hosting services;
• (b) generating spikes in network traffic usage that are out of proportion (in volume or frequency) to those typically generated by Emmatt’s other clients who have purchased similar hosting services;
• (c) on a daily, weekly or monthly basis, consuming CPU or other processing resources in a manner that is excessive in relation to amount of network traffic typically generated by Emmatt’s other clients who have purchased similar hosting services;
• (d) using disk space to store materials unrelated to or unnecessary for the operation the web site for which the Hosting Services were purchased (for example, using disk space for data warehousing, backs of all or part of any computing, telecommunications or mobile device or other forms of mass data storage); or
• (e) the sending of any commercial electronic messages promoting the web site or otherwise directing attention to the web site to any recipient without the recipient’s consent
• (f) No “Spam”: UCE/UBE or “spam” originating from a server located on our network or associated with a Emmatt server is not tolerated. This includes any email that promotes websites hosted on a server located on the Emmatt network, but which is sent from an email address not associated with a Emmatt account.

6.3 Music, Image and Video Files. Responding to and addressing copyright complaints is a time consuming process. From time to time, Emmatt scans its servers looking for MP3, MP4 and other file formats commonly used for music, images or video. If such files are detected amongst Your Content, Emmatt may ask you to demonstrate that they are: (i) owned or properly licensed by you; and (ii) if licensed, not being used in a manner that is inconsistent with that license. If you fail to do so for any file or, in the alternative, remove the file from Emmatt’s servers, it is a breach of this section 6.3 and Emmatt may exercise its rights under these TOS including section 6.5 and section 5.3
6.4 Investigation. Emmatt reserves the right to investigate suspected breaches of this section 6, you agree to cooperate with Emmatt when asked to assist in any such investigation.
6.5 Breaches. If you breach this section 6, it is probable (in Emmatt’s sole discretion) that you have breached or it is likely that you will breach this section 6 (also in Emmatt’s sole discretion), Emmatt in its sole discretion may suspend or revoke your access to the Services or Emmatt’s technology infrastructure. Breaches of this section 6 may also result in you incurring criminal prosecution or civil liability.
6.6 Others Breaches. Emmatt assumes no liability for enforcing or not enforcing the provisions in its other service agreements relating to acceptable use.

8.1 Fees. Current fee schedule applies, billed in quarter-hour increments and invoiced monthly. A one-hour minimum monthly billing will apply in any month where service has been provided with no rollover of time.
8.2 Emmatt’s fees are subject to change without notice.
8.3 Taxes. You will pay any present or future sales, goods and services, excise, value-added, or other similar taxes including any related interest or penalties (imposed at any time by any governmental authority) arising from or related to any Services other than taxes based on Emmatt’s net income.
8.4 Payment of Fees. Emmatt accepts payment by credit card (Visa, MasterCard – for invoices under $1,000.00); Interact transfers to payments@emmatt.com, or by cheque.
8.5 In Advance. Payment for Hosting Services is in advance. When you order a Hosting Service, you are required to pay the full amount of Fees for the initial term and applicable taxes. When a Hosting Service renews, you are required to pay the full amount of Fees for the renewal term and applicable taxes. A Hosting Service renews when it has not been terminated by you prior to the last date of the initial term or any renewal term for which you have paid.
8.6 Additional Services. Fees for Additional Services, applicable taxes and reimbursable expenses are due at the end of the month in which they are incurred.
8.7 Automatic Charging. When Emmatt is entitled in accordance with this Agreement to any Fees, applicable taxes or expenses, such amounts will be automatically charged to the credit card account that Emmatt has on file for you and you authorize Emmatt to do this. Emmatt will send an invoice for these amounts to the email address that it has on file for you before doing so.
8.8 Chargebacks. Please note that should any amount that you pay by credit card be charged back to Emmatt, you will incur an additional Fee of $25.00. The payment will not have been received by the due date, and:

• (a) Emmatt may restrict, suspend or terminate the affected Services; and
• (b) the overdue payment shall bear interest at the rate of one percent (1%) per month (an effective annual rate of 12.68%) or the maximum rate permitted by law, whichever is less. Further, Emmatt shall be entitled to recover its collection costs, including legal fees and expenses.

8.9 30 Day Guarantee of Hosting Services.

• (a) If at any time during the initial 30 day period beginning on the date that you purchase Hosting Services for the first of your websites to be hosted by Emmatt you are not satisfied with the Hosting Services that you are receiving, you may terminate this Agreement by submitting written notice to terminate the Hosting Service. Written notice is not email. If you do so, you will receive a refund. THE REFUND WILL BE CALCULATED BY SUBTRACTING ALL OUTSTANDING FEES FOR ANY SERVICES PROVIDED BY EMMATT FROM ANY FEES PAID BY YOU FOR THE HOSTING SERVICES PURCHASED IN RELATION TO YOUR FIRST WEBSITE TO BE HOSTED BY EMMATT.

10.1 Suspension. If you breach of these TOS, Emmatt may, in its sole discretion, restrict or suspend the Services, without prior notice to you and without an opportunity to cure the breach. If you are given an opportunity to and you cure the breach or you demonstrate to Emmatt satisfaction that you have taken steps to prevent future breaches of the TOS, Emmatt will lift the restriction or suspension. Emmatt will give you notice of any suspension or restriction. Whether or not a restriction affects your access to Your Content is in Emmatt’s sole discretion. PLEASE NOTE THAT FEES WILL BE CHARGED DURING THE PERIOD OF ANY SUSPENSION OR RESTRICTION OF SERVICES.
10.2 By You. You may terminate any Service at any time by submitting written notice to terminate. Written notice is not email. PLEASE NOTE: Subject to section 8.9 (a), any amounts paid in advance for Services will not be refunded.
10.3 By Emmatt. Emmatt may terminate any Service by giving you at least 30 days written notice of the termination date. Emmatt may terminate this Agreement immediately and without prior notice to you:

• (a) if you breach section 6 (Accept)
• (b) if you breach section 8 (Payment) and do not cure that breach within 10 days of the breach; or
• (c) if you breach any other section of these TOS and do not cure that breach within 15 days.

10.4 Survival. Those sections of this Agreement which by their nature should survive the termination or expiration of this Agreement, including but not limited to 3.4, 4.2(c), 4.2(e), 5, 7, 8, 10.4, 11, 12, 13, 14, 16 and 17 will remain in full force and effect following the expiration or termination of this Agreement.
10.5 Renewals. Services purchased for a set period (for example, one year) will be automatically renewed upon the expiry of that period unless you give Emmatt written notice of your intention to terminate them at least 30 days prior to the expiry of that period. They will be renewed at Emmatt’s then current rates for such Services.

11.1 THE INTERNET IS A COMPLEX NETWORK OF EQUIPMENT, SERVICES, AND PROVIDERS OF INFORMATION, THUS THE SERVICE MAY NOT BE AVAILABLE TO YOU AT ALL TIMES. YOU ACKNOWLEDGE THAT THE HOSTING SERVICES AND OTHER SERVICES MAY NOT ALWAYS BE AVAILABLE, AND WITH THE EXCEPTION OF ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, EMMATT EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS WITH RESPECT TO THE HOSTING SERVICES OR OTHERWISE ARISING FROM THIS AGREEMENT WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY THAT THE HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.