Master Service Agreement –
This agreement ("Agreement") is between the Customer
or Hosting/Internet Service Reseller. (“customer”)
and DataAnywhere.net a division of R401 Enterprises Ltd, ("DataAnywhere.net")
at 1708 Dolphin Avenue Suite 606, Kelowna, BC, Canada. The agreement
is made effective as of the date of the order.
The parties agree as follows:
this agreement is intended to cover connectivity services provided
by DataAnywhere.net and received by the Customer. This agreement
contains the entire understanding between DataAnywhere.net and
the customer and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, between
DataAnywhere.net and the Customer in regards to the services outlined
in this agreement. Customer acknowledges and agrees that its entire
right relating to DataAnywhere.net Services are as set forth in
this agreement and hereby waives all other rights that it may
have by implication of law or otherwise.
Subject to the terms and conditions of this agreement, DataAnywhere.net
agrees to provide the wholesale connectivity services specified
in Appendix A. Subject to Customers right to terminate this agreement
in accordance to Section 4.3 of this agreement, DataAnywhere.net
may expand or contract the scope of the DataAnywhere.net's services
by issuing an amended Appendix A to Customer in advance of such
2. Initial Term
The initial term of this Agreement is stated in the Appendix A
("Initial Term"). The Initial Term shall not commence
until DataAnywhere.net accepts the completed order from Customer
and until first payment as set out in the Order is made in full
by Customer for Services to be provided during the Initial Term.
3. Renewal Term
Unless terminated by DataAnywhere.net or in accordance with Section
4.3 of this Agreement, this Agreement will automatically renew
for successive terms of equal length to the Initial Term at the
applicable rate and discounts as is shown on Appendix A.
4. Fees and Payment
Customer agrees to pay DataAnywhere.net, without limitation, for
the wholesale data services it uses. DataAnywhere.net reserves
the right to charge Customer standard hourly rates ($100/hour
CDN), $35 minimum per instance, to cover the resolution of excessive
or unusual problems or complaints.
4.1 Invoices - Invoices are emailed to the current
billing email address.
• Monthly Service Fees are invoiced thirty-seven (37) days
in advance and due thirty (30) days in advance
Clients are fully responsible to ensure payment of all amounts
due are paid on time independently of receiving invoice or billing
notifications by email from DataAnywhere.net. All dollar amounts
on invoices are in CDN currency. Overdue accounts will be emailed
a 48 hour disconnection notice. After 48 hours the account will
be suspended for an additional 72 hours and then cancelled/deleted
unless alternative arrangements are made with DataAnywhere.net.
4.2 Other Charges - Customer will pay all sales
and value-added taxes, duties or levies imposed by any authority,
government, government agency or commission or Crown Corporation
in connection with the DataAnywhere.net services as provided under
this agreement. Customer is responsible for collecting such taxes,
duties or levies from end users as imposed by authority, government,
government agency or commission or Crown Corporation.
4.3 Cancellation Policy – The customer
is responsible for the entire term of the contract and under no
condition will be allowed to change, alter or terminate, with
out the expressed written consent of DataAnywhere.net. Cancellation
of this contract may occur provided the contract has reached the
end of the Initial Term and the request from the customer is in
writing, sent by mail or email. The cancellation must be submitted
at least 60 days prior to the start of the next billing period.
There are no partial refunds or credits for early cancellations.
All payments to DataAnywhere.net are final and non-refundable.
4.4 Traffic Charges and Usage – The customer
is responsible for any traffic charges and or usage charges as
outlined in Schedule A. Traffic charges will be billed on the
first of every month and are due 10 days after the invoice date.
Failure to pay for these charges on time will result in the actions
described in section 4.1.
5. Acceptable Use Policy
Customer shall at all times comply with and help ensure that they
and their clients comply with the terms of the current version
of the Acceptable Use Policy (AUP) posted at www.dataanywhere.net.
Customer agrees that DataAnywhere.net may amend the terms of the
AUP from time to time by posting a new or different version of
the Acceptable Use Policy at www.dataanywhere.net. Customer shall
include the terms and conditions set out in the Acceptable Use
Policy in an Acceptable Use Policy with its own clients.
6. 99.99% Uptime Guarantee
DataAnywhere.net endeavors to provide the most reliable network
infrastructure possible to the Customer. To Customer, in good
financial standing with DataAnywhere.net, we guarantee that our
network is available 99.99% of the time in a given month, excluding
scheduled maintenance. The network is defined as core network
infrastructure excluding the hardware, services and software running
on your equipment. Network downtime is measured from the moment
Customer notifies a DataAnywhere.net support representative of
a network failure to the time the Network responds to an external
"ping" request. Notification of network failure must
occur at the time of the outage and not after the fact. If network
downtime exceeds 99.99% in a given month, Customer will be refunded
2% of their monthly connectivity fee and an additional 2% for
each addition 2 hours of downtime up to 20% of Customer' monthly
connectivity fee. Refunds shall not be provided to Customer if
network downtime is the result of: a) scheduled maintenance b)
circumstances beyond DataAnywhere.net's reasonable control, including,
but not limited to: dDoS or other network attacks, upstream or
3rd party network outages, war, fire, flood, sabotage, labor disturbance,
acts of government and c) breaking this Agreement or DataAnywhere.net’s
Acceptable Use Policy.
7. Temporary Service Suspension
Customer agrees that it may be necessary for DataAnywhere.net
to temporarily suspend Services for technical reasons or to maintain
the DataAnywhere.net network, the Equipment or any other facilities,
the timing of which will be as determined by DataAnywhere.net.
Such suspension of the Services will not be an interruption of
the DataAnywhere.net Services for the purpose of calculating network
availability or Customer' entitlement to credit for network interruption.
8. Emergency Service Suspension
DataAnywhere.net may interrupt the Services at any time for any
duration of time, without penalty or liability for any claim by
Customer, where necessary to prevent improper or unlawful use
of DataAnywhere.net Services or network. Such suspension of Services
will not be an interruption for the purpose of calculating network
availability or Customer' entitlement to credit for network interruption.
9. Compromised /Hacked Server
A compromised or "hacked" server is a serious threat
to our network. DataAnywhere.net, at its sole discretion, will
take any and all measures to prevent a compromised server from
doing additional damage to its own system and files or to the
rest of the network.
10. Proprietary Rights
10.1 Trade Marks and Trade Names - Customer
shall not display or otherwise use any trade mark, trade name,
logo, symbols, coined word or combination of words used by DataAnywhere.net
or permit the same to be displayed or otherwise used in connection
with any business conducted or controlled by Customer except as
may be specified or approved by DataAnywhere.net in writing.
11. Termination of Agreement
If Customer breaches any of its obligations under this agreement
or the Acceptable Use Policy (AUP) then DataAnywhere.net may,
at its sole discretion, terminate this agreement at any time and
without prior notice.
12. Limitation of Liability
Customer acknowledges and agrees neither DataAnywhere.net nor
any of its members, shareholders, directors, officers, employees
or representatives will be liable for any special, indirect, consequential,
punitive or exemplary damages, or damages (including but not limited
to damages for loss of profits or savings, loss of data, or loss
of use) in connection with this agreement. If, despite the foregoing
limitations, DataAnywhere.net or any of its shareholders, directors,
officers, employees or representatives should become liable to
Customer or any other person in connection with this agreement
for ANY REASON, then the maximum aggregate liability of DataAnywhere.net,
its members, shareholders, directors, officers, employees and
representatives for all such things and to all such parties will
be limited to the lesser of the actual amount of loss or damage
suffered by the claimant or the amount payable by Customer to
DataAnywhere.net for one month of service under this agreement.
Customer will indemnify and save harmless DataAnywhere.net and
its members, shareholders, directors, officers, employees, agents,
contractors, and representatives from and against all damages,
losses, costs and expenses (including actual legal fees and costs),
fines and liabilities incurred by or awarded, asserted or claimed
against DataAnywhere.net or any of its members, shareholders,
directors, officers, employees and representatives in connection
with Customer’ negligence, activities or omissions, or breaches
of its obligations under this agreement, including claims brought
by a person using or relying upon any advice given or publication
produced and distributed by Customer.
14. Governing Law
This agreement shall be interpreted in accordance with and be
governed in all respects by the laws of the Province of British
Columbia and the laws of Canada applicable therein. The courts
of British Columbia shall have non-exclusive jurisdiction to entertain
any action or proceeding brought by the parties in connection
with this agreement or any alleged breach of this agreement.
15. Customer Acknowledgement
Customer acknowledges that it accepts all risk of any unauthorized
or illegal use of the DataAnywhere.net network or any inter-connected
network by third parties. DataAnywhere.net provides no warranties,
makes no representations, and accepts no liability for the unauthorized
or illegal access or interference with Customer’ server/network
unless such access or interference is caused by the intentional
unlawful acts of DataAnywhere.net, its agents or employees.
16. Electronic Commerce
Customer is solely responsible for all aspects of their online
store or e-business. This includes, but not limited to:
• The accuracy of statements and materials related to your
products and/or services.
• The accurate calculation and application of shipping and
• Processing Customer orders, inquiries and complaints.
• Maintaining the confidentiality of your Customer’
credit card numbers and private information.
17. IP Address Ownership and Usage
DataAnywhere.net assigns IP (Internet Protocol) addresses to Customer
for their use. Customer has no right to use DataAnywhere.net IP
addresses not assigned to it, to move IPs between different servers/network
or account or in ways not permitted by DataAnywhere.net. DataAnywhere.net
maintains ownership of all IP addresses that are assigned to Customer
and reserves the right to change or remove them at its sole and
absolute discretion. Typically, however, these changes are rare
and made only at the request of ARIN or an upstream provider.
PLEASE NOTE: The allocation of IP addresses is restricted by the
policies of ARIN. These policies now dictate that name-based hosting
MUST be used whenever possible. DataAnywhere.net reserves the
right to periodically review IP address usage and revoke authorization
to use those IP addresses not being utilized or where name-based
hosting could be used.