MASTER SERVICES AGREEMENT between NYN and the customer who signs our Service Contract ("you").
You will be asked to sign a Service Contract that lists the services you have chosen and the related fees. The Service Contract will incorporate this Master Services Agreement, a Service Level Agreement, and an Acceptable Use Policy. It may also incorporate an addendum to this Master Services Agreement if you are purchasing services for which we have special legal terms. When we use the term "Agreement" in any of these documents, we are referring collectively to all of them. The Agreement is effective from the time you sign the Service Contract we prepare.
Some words used in the Agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the NYN Acceptable Use Policy posted at https://www.nynweb.com/service-agreement#acceptable-use-policy as of the date you sign the Service Contract.
"Business Day" or "Business Hours" means 9:00 a.m. - 5:00 p.m. Monday through Friday, North American eastern standard time, excluding federal public holidays in the Canada.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, your NYN servers or other devices, (ii) for NYN, unpublished prices & other terms of service, audit & security reports, and other proprietary technology, and (iii) for the both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through a violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
"Hosting Service" means the information technology hosting services detailed in a Service Contract and Service Level Agreement, plus Support.
"Personally Identifiable Information" or "PII" means: (i) any information that identifies an individual, such as name, social security / insurance number or other government issued number, date of birth, address, telephone number, biometric data, mother's maiden name, or other personally identifiable information, (ii) any "non-public personal information" as that term is defined by the Governing body of Ontario and/or Canada, and (iii) "protected health information" as defined by the Governing body of Ontario and/or Canada.
"Service" or "Services" means the Hosting Service and any Supplemental Services we may provide to you, collectively.
"Service Commencement Date" means the date on which we provide the access codes that enable you to send and receive information using the Hosting Service.
"Service Level Agreement" means any Service Level Agreements incorporated by reference in your Service Contract.
"Supplemental Service" means any service we provide to you other than the Hosting Service.
"Support" means (i) management of the Hosting Service by a service delivery team, (ii) availability of live support during Business Hours, or as covered by a specific Service Contract; and (iii) use of the NYN customer portal/email support system.
Contingent on your satisfaction of NYN payment approval criteria, NYN will provide the Hosting Service to the standards stated in the Service Level Agreement(s) for the term of the Agreement. NYN will also perform those Supplemental Services that we agree with you in writing to perform.
You must use reasonable security precautions in light of your use of the Services, including all upgrade and security patches provided by web applications installed and/or running under our Service. This also includes encrypting any PII transmitted to or from, or stored on, the NYN servers or storage devices you use. You must comply with the laws applicable to your use of the Services and with NYN Acceptable Use Policy. You must cooperate with NYN reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You must provide NYN with accurate information to help NYN determine if any tax is due with respect to the provision of the Services. You are responsible for keeping your billing and other account information up to date. You must pay when due the fees for the Services stated in the Service Contract(s) or other agreement between us.
5.1 NYN offers data backup services. NYN will use commercially reasonable efforts and industry accepted methods to ensure the reliability of the backup and restore process. However, because of the technical limitations regarding backups on live servers and the possibility of data corruption, if data has changed since the time we performed a back up, or that the data was not in a usable state at the time we performed a given backup, we, in no way, guarantee the usability of any data from any given backup set.
5.2 We do not promise to retain data backups for longer than the agreed data retention period as outlined in our Service Contract.
NYN will use commercially reasonable efforts and industry accepted methods to ensure the reliability and security of our Services, but NYN is not responsible to you for unauthorized access to your data or the unauthorized use of the Services. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
The duration of the initial term of this Agreement is stated in the Order ("Initial Term"). The Initial Term shall commence on the later of: (a) the date upon which NYN accepts the completed Order from the Customer; and (b) the date upon which Customer's first payment as set out in the Order has been received by NYN (in accordance with the payment provisions set out in this agreement).
Unless this Agreement is earlier terminated in accordance with the provisions hereof, this Agreement will, at the conclusion of the Initial Term, automatically renew for successive terms of equal length to the Initial Term upon the same terms and conditions as those specified herein.
8.1 Your first invoice will include the initial one time set up fee and the first monthly/quarterly/semi-annual or annual recurring fee from the Service Commencement Date. We will require you to pay this initial invoice before beginning the Hosting Service. Following the Service Commencement Date, recurring fees will be billed in advance on or around the anniversary of the Service Commencement Date. Non-recurring fees, such as bandwidth overages, will be billed monthly in arrears. Fees for any Supplemental Services will be billed in the amounts and at such times as we agreed with you in writing.
8.2 Fees are due on receipt of invoices. Any account 30 days past due, for any reason, will have a late fee of $25 or 1.5%, whichever is greater, added to their outstanding balance. Accounts 60 days past due are subject to account suspension and a $100 reactivation fee (on top of previous late fees and past due amounts). Repeated late payments will result in full account termination and deletion without the possibility of reactivation. Returned checks and declined credit cards will also be charged a $25 non-sufficient funds fee.
If an account is terminated, there is NO possibility that it can be restored or its data recovered. NYN shall not be liable to the Customer or any other third party for any consequences of a Customer's account being terminated.
8.3 Following expiration of the initial term, we may increase the fees for the Hosting Service with thirty days advance written notice unless you have agreed to a fixed renewal term.
8.4 If NYN is required by law to pay taxes on the provision of the Service, you must pay NYN the amount of the tax that is due or provide NYN with satisfactory evidence of your exemption from the tax. Fees must be paid in Canadian Dollars. Invoices that are not disputed within 180 days of invoice date are conclusively deemed accurate.
We may change our Acceptable Use Policy to add restrictions on your use of the Services provided that any new restrictions are reasonable and consistent with hosting industry norms. Any changes to the AUP made during the term of your Agreement will become effective as to you upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Service Contract for your configuration that incorporates the revised AUP by reference, or (iii) thirty days following our notice to you describing the change. If a change to the AUP materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty days following the date the change became effective as to you. We will not charge you an early termination fee for a termination on such grounds. If you terminate your Service because we have modified our AUP in a way that adversely affects you, we may decide to waive that change as to you and keep your Agreement in place for the remainder of the term.
You agree that we may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of Services is necessary to protect the NYN network or our other customers, or (iv) if required by law. We will give you advance notice of a suspension under this paragraph of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect NYN or its other customers from imminent and significant operational or security risk.
11.1 You may terminate the Agreement for breach if we materially fail to provide the Hosting Service as agreed and do not remedy that failure within ten days of your written notice describing the failure, or if we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty days of your written notice describing the failure.
11.2 We may terminate the Agreement for breach if we discover that the information you provided to us for the purpose of establishing the Services is materially inaccurate or incomplete, or the individual signing the Agreement did not have legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, your payment of any invoiced amount is overdue and you do not pay the overdue amount within four Business Days of our written notice, or you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty days of our notice to you describing the failure. We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation.
You may terminate the Agreement for convenience at any time on thirty days advance written notice.
If you terminate the Agreement for convenience or we terminate the Agreement for your breach, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term, unless otherwise stated in a Service Contract.
Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Master Services Agreement,
(ii) to law enforcement or government agency if requested, or if either of us reasonably believes that the other's conduct may violate applicable criminal law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
You agree that we may publicly disclose that we are providing services to you and may include your name in promotional materials including press releases and on the NYN Web site. Neither of us may publicly use the other party's logo or other trade or service mark without permission.
16.1 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN OUR SERVICE LEVEL AGREEMENTS, ALL PRODUCTS AND SERVICES ARE FURNISHED BY NYN AND ACCEPTED BY CUSTOMER "AS IS", "WITH ALL FAULTS," AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY NYN. NYN DOES NOT WARRANT THAT ANY PRODUCT OR SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED OR ERROR FREE.
16.2 LIMITATION OF LIABILITY. IN NO EVENT WILL NYN BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF NYN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILITY OF NYN AND ANY OF ITS EMPLOYEES, AGENT, SUPPLIERS, OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED THREE (3) TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE SERVICE CONTRACT(S) IN EFFECT FOR THE CONFIGURATION AT THE TIME OF THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
16.3 TERMS PART OF BARGAIN. Customer acknowledges that NYN has set its prices and agreed to enter this Agreement in reliance upon the Warranty Disclaimer and Limitation of Liability set forth in this Agreement, and that both form an essential basis of the bargained Agreement between the parties.
16.4 DATA BACK UP LIABILITY. We are not liable to you for lost data unless and to the extent you purchase data back up Services from NYN and we fail to provide the back up Services as agreed. No other form of warranty is provided. Clients are strongly encouraged to make reasonable efforts to keep their own, local copies of all data related to Services we provide under this Agreement.
If you, your affiliates, or any of your or their respective employees, agents, or suppliers, is faced with a legal claim by a third party arising out of NYN actual or alleged gross negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the Agreement, or a legal claim alleging that the Hosting Service infringes on the Canadian patent or copyright of a third person, then, subject to the limitations stated in Section 16 above, NYN will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on you as a result of the claim.
If we, our affiliates, or any or our or their respective employees, agents, or suppliers is faced with a legal claim by a third party arising out of your actual or alleged: gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or end users, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on NYN as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.
You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
If either of us receives notice of a claim that is covered by this Section, the notice must be promptly forwarded to the financially responsible party. The party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible party. The party against whom the claim is made may not settle the claim without the consent of the financially responsible party, although such consent may not be unreasonably withheld. Notwithstanding anything to the contrary in this Section, if we are financially responsible under this Section for claims against multiple customers, we may elect to choose counsel to defend the claims and control the defense of the claims. Amounts due under this Section must be paid by the financially responsible party as they are incurred by the party against whom the claim is made.
You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to us.
We may provide to you, or arrange for you to purchase or license third party software, services or other products that may or may not be included as part of the Hosting Service, as a Supplemental Service. NYN MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND NYN, SUCH SERVICES ARE PROVIDED "AS IS." Your use of any third party software, services, and other products is governed by the terms of your agreement with the third party.
You may resell the Hosting Service and you may permit your subsidiaries and affiliated companies to use the Services if you wish, but you are responsible for use of the Service by any third party to the same extent as if you were using the Service yourself. NYN will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
Your routine communications regarding the Services should be sent to our NYN support team using the NYN support portal and/or NYN support contact email. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class Canada Post mail to:
NYN routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, Canada Post mail, or overnight courier, except that NYN may give notice of an amendment to the AUP by posting the notice on the NYN web site and hosting control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
Each of us retains all rights, title, and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by NYN during the performance of the Services shall belong to NYN unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
You do not acquire any ownership interest in or rights to possess the servers, NYN proprietary software libraries or other hardware we provide for your use, and you have no right of physical access to the software libraries or hardware. We do not acquire any ownership interest in or rights to the information you transmit to or from or store on your NYN servers or other devices. On termination of the Agreement, you must promptly release any Internet protocol numbers, addresses, or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name) and agree that we may take steps to change or remove any such IP addresses.
If NYN or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and NYN is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then NYN may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
You may not assign the Agreement without NYN prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the Province of Ontario, exclusive of its choice of law principles, and the laws of Canada, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the provincial or federal courts in Windsor, Ontario or closest venue to Windsor, Ontario. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against NYN or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than one year after the time that the claim accrued.
If you sign multiple Service Contracts for a single configuration - for example, to add a server or additional services, then the Master Services Agreement, Service Level Agreement, and Acceptable Use Policy referenced in the last signed Service Contract will govern the entire configuration.
Except for amendment to the AUP as described in Section 9 above, the Master Services Agreement, Acceptable Use Policy and Service Level Agreement may be amended only by a formal written agreement signed by both parties. A Service Contract may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail or the NYN ticketing system, that includes the express consent of an authorized individual for each of us.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Service Contract, the Service Level Agreement, any addendum to the Master Services Agreement, the Master Services Agreement, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." Sections 8, 13, 14, 16, 17, and 27, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures shall be deemed to be original signatures.
The Agreement is the complete and exclusive agreement between you and NYN regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
Revision Date: February 15th, 2011 Revision: 1A
The NYN SLA covers four components that support the availability of your web site:
a) NYN guarantees that its network will be available 99.9% of the time in a given month, excluding scheduled maintenance. Network uptime includes the functioning of all network infrastructure including routers, switches, and cabling, but does not include Ethernet ports, services, or software on your server(s). Network downtime exists when a particular customer is unable to transmit and receive data.
b) High Latency refers to the total time required for a Customer data packet to complete the "round trip" between NYN’s border routers and the data center's core routers providing upstream Internet connectivity. This is calculated by measuring the total round trip time approximately thirty (30) times per hour, adding the total round trip time for each measurement, and dividing by the total number of measurements ("Average Hourly Latency"). The Average Hourly Latency shall be 15 milliseconds or less.
NYN Guarantee: Upon experiencing downtime/latency as defined above, NYN will credit the customer 5% of the monthly fee for each 60 minutes of downtime or latency issue (up to 100% of customer's monthly fee for the affected server or shared hosting service). Credit period is measured from the time the trouble ticket is opened by the Client or Support.
NYN guarantees that the critical infrastructure systems will be available 99.9% of the time in a given month, excluding scheduled maintenance. Critical infrastructure includes functioning of all power and HVAC infrastructure including UPSs, PDUs, and cabling but does not include the power supplies on the customers' servers. Infrastructure downtime exists when a particular server is shut down due to power or heat problems and is measured from the time the trouble ticket is opened to the time the problem is resolved and the server is powered back on.
NYN Guarantee: Upon experiencing downtime, NYN will credit the customer 5% of the monthly fee for each 60 minutes of downtime (up to 99.9% of customer's monthly fee for the affected server or shared hosting service). Credit period is measured from the time the trouble ticket is opened by the Client or Support.
NYN guarantees the functioning of all hardware components and will replace any failed component at no cost to the customer. Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card, and other related hardware included with the server. This guarantee excludes the time required to rebuild a RAID array and the reload of certain operating systems and applications.
Hardware replacement will begin once NYN identifies the cause of the problem. Hardware replacement is guaranteed to be complete within two hours of problem identification.
NYN Guarantee: In the event that it takes us more than two hours to replace faulty hardware, NYN will credit the customer 5% of the monthly fee per additional hour of downtime (up to 99.9% of customer's monthly fee for the affected server). Credit period is measured from the time the cause of the problem is identified by Support.
The Customer agrees that from time to time, it may be necessary for NYN to temporarily suspend Hosting Service for technical reasons or to maintain the network, the hardware, server OS, or any other facilities, the timing of which will be determined by NYN. Provided that NYN provides the Customer with reasonable advance notice of the temporary suspension of Hosting Service, such suspension will not be deemed an interruption of the Hosting Service for the purpose of calculating network, infrastructure, or hardware availability or the Customer's entitlement to a credit for network, infrastructure, or hardware interruption. Advanced notice may be in the form of all or any of the following: e-mail, web posting on status page, RSS feed of status page, or other communications methods outlined in a Service Contract. Maintenance windows will typically be conducted between 11pm to 2am (EST) to minimize impact on customers. A greater than 72 hour advanced notice of events is strived for, but in some cases, last minute maintenance windows may be conducted if the overall security or stability of our Services requires it. Maintenance windows will typically be 15 minutes or less in length.
Credits shall not be provided to the Customer if degraded or interrupted service is the result of: a) Temporary Service Suspension as contemplated above; b) Suspension Of Services as contemplated in Section 10 of Master Service Agreement; c) circumstances beyond NYN control including but not limited to network attacks, third party network outages, war, fire, flood, other acts of God, sabotage, labor disturbance, government regulations, or other government intervention; or d) a breach by the Customer of the Master Service Agreement or Acceptable Use Policy.
Revision Date: October 3rd, 2014 Revision: 1B
This Acceptable Use Policy (AUP) is incorporated by reference in your Service Order with NYN and your services may be suspended or terminated for violation of this AUP in accordance with the Master Services Agreement.
Capitalized terms used in this AUP shall have the meaning given in the Master Services Agreement.
You may not use NYN network or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including: Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network; Interference with service to any user of NYN or other network including, without limitation to, mail bombing, flooding, or deliberate attempts to overload a system and broadcast attacks;
Use of an Internet account or computer without the owner's authorization; Collecting or using email addresses, screen names, or other identifiers without the consent of the person identified (including, without limitation to, phishing, Internet scamming, password robbery, spidering, and harvesting); Collecting or using information without the consent of the owner of the information;
Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft's "add/remove" tool); or
Any conduct that is likely to result in retaliation against the NYN network or website, or NYN employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
Please review our Email Acceptable Usage Policy for full details.
You may not attempt to probe, scan, penetrate, or test the vulnerability of a NYN system, network, or to breach NYN security or authentication measures, whether by passive or intrusive techniques, without NYN express written consent.
You must comply with the rules and conventions for postings to any bulletin board, chat group, or other forum in which you participate, such as IRC and USENET groups, including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages or mass postings to multiple forums.
You must comply with the rules of any other network you access or participate in using, in connection with your NYN services.
You may not publish or transmit via NYN network and equipment any content or links to any content that NYN reasonably believes: constitutes, fosters, or promotes child pornography, bestiality or hard-core pornography; is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
is defamatory or violates a person's privacy;
creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
improperly exposes trade secrets or other confidential or proprietary information of another person;
is intended to assist others in defeating technical copyright protections; infringes on another person's copyright, trade or service mark, patent, or other property right;
promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to NYN; or
is otherwise malicious, fraudulent, or may result in retaliation against NYN by offended viewers.
Content "published or transmitted" via NYN network or equipment includes Web content, email, bulletin board postings, chat, and any other type of posting or transmission that relies on the Internet.
You may not use NYN network or equipment to download, publish, distribute, or otherwise copy in any manner any text, music, software, art, image, or other work protected by copyright law unless:
you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
you are otherwise permitted by established Canadian & United States copyright law to copy the work in that manner.
NYN may terminate the service of copyright infringers.
You must have valid and current information on file with your domain name registrar for any domain hosted on the NYN network.
All scripts and web applications installed on our Services must be kept in a secure and stable state at all times. This includes any updates released to address bugs, performance, or security by the authors of said scripts or web applications. You are responsible for any direct or indirect impact to your or others’ Services if you are in violation.
You may only use IP addresses assigned to you by NYN in connection with your NYN services.
Storage space provided under our Services may not be used for off-site backups of personal or business computers, and/or the storage, caching or backups of other data not directly related to the web site(s) using our Services, including the duplication of web/database backups we already provide with our services.
NYN may charge you its hourly rate for AUP/Master Service Agreement breach recovery (currently $175.00) plus the cost of equipment and material needed to (i) investigate or otherwise respond to any suspected violation of our policies, (ii) remedy any harm caused to NYN or any of its customers by the violation of our policies, (iii) respond to complaints, including complaints under the Digital Millennium Copyright Act, (iv) respond to subpoenas and other third party requests for information as described in the Master Services Agreement, and (v) have NYN Internet Protocol numbers removed from any abuse database. No credit will be available under your NYN Service Level Agreement for interruptions of service resulting from AUP/Master Service Agreement violations.
Revision Date: February 15th, 2011 Revision: 1A
NYN may block mail that violates this Acceptable Use Policy (AUP). In addition, your Services may be suspended or terminated for violation of this AUP in accordance with the Master Services Agreement.
You may not use your Mail Service to send Bulk Mail. "Bulk Mail" means email messages of similar content that are sent to more than two hundred and fifty (250) recipients. Attempts to circumvent this restriction by breaking up bulk email over time, using multiple accounts, or other means will be a violation of this restriction.
You may not use a third party other than an authorized NYN partner to send Bulk Mail that references a Mail Service email address or that has a Mail Service return email address.
You may not intentionally use your Mail Service for the purpose of receiving bulk email from others. For example, you may not submit any Mail Service email address to a "Safelist" or "Free for All" (FFA) list.
Mail messages sent to other users within your domain names hosted on the NYN system are not Bulk Mail.
You may not send unsolicited email. Email is unsolicited if you have no pre-existing relationship with the recipient, unless the recipient has published or otherwise provided or his or her email address in a manner which implies consent to receive the email.
You may not obscure the source of your email in any manner, including by intentionally omitting, forging, or misrepresenting messages headers or return addresses.
You may not use the Mail Services to distribute content or links to content that NYN reasonably believes:
constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
is defamatory or violates a person's privacy;
creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
improperly exposes trade secrets or other confidential or proprietary information of another person;
is intended to assist others in defeating technical copyright protections;
infringes on another person's copyright, trade or service mark, patent or other property right;
promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to NYN;
is otherwise malicious or fraudulent, or may result in retaliation against NYN by offended recipients;
or is intended to harass or threaten.
You may not send email of any kind to a person who has indicated that they do not wish to receive it.
You may not probe, scan, or test NYN systems for vulnerabilities. You may not violate or attempt to violate NYN security measures. You may not use NYN services to probe, scan or test a third party's systems for vulnerabilities, or to violate or attempt to violate a third party's security measures. Examples of security violations are: (i) attempting to access data not intended for your use; (ii) attempting to log into an account that you are not authorized to access; (iii) attempting to obtain services you have not paid for (including NYN Services); (iv) attempting to discover another person's authentication information; and (v) interfering with another user's use of the Services.
You must use reasonable security precautions in connection with your use of the Services, such as a desktop virus scanner and firewall. If your Service is exploited by a third party, NYN may suspend your Services until the vulnerability is addressed. For example, NYN may suspend your Mail Service if you are distributing a virus, even if you are unaware that you are distributing a virus.
You may not use the Mail Services in a way that creates technical disturbances for other NYN customers or for the NYN systems generally. In addition:
No Shared Mailboxes - each mailbox may be used by one natural person at a time. Attempts to log into a single mailbox simultaneously from more than one computer are prohibited. You may not use automated tools such as "Fetchmail" or "Microsoft Exchange Connector" to virtualize one mailbox into multiple mailboxes.
Automated Use - mailboxes are not intended for automated use such as sending emails from web servers, web applications, or receiving emails by automated programs.
Complaints from email recipients and third party abuse agencies (e.g. SpamHaus or Spamcop) shall be deemed proof of the facts stated therein unless you provide compelling evidence to the contrary. NYN shall have the right to terminate your Mail Service if we receive excessive or repeated complaints from your email recipients, regardless of whether you are in breach of this AUP or are otherwise at fault.
NYN may terminate your Services if your email address or related IP number(s) is/are blacklisted by any third party, or NYN is retaliated against as a result of your email, regardless of whether you are in breach of this AUP or are otherwise at fault.
You may not use your Mail Service to send Bulk Mail (defined above) except via a mail marketing service that practices similar procedures as outlined in this document. You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk and commercial mail. In addition, you must meet all of the following requirements:
The mail may be sent only to individuals who have affirmatively indicated they wish to receive it;
Your procedures for seeking consent include reasonable means to ensure that the person giving consent is the owner of the email address for which consent is given;
You retain evidence of each recipient's consent in a form that can be promptly produced on request, and you honor the recipient's and NYN requests to produce consent evidence within 72 hours of receipt of the request.
You have procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word "Remove" in the subject line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented within 48 hours;
You have procedures in place to prevent you from adding to a list a recipient who has previously revoked their consent;
You must post an email address for complaints (such as abuse@yourDomain.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
The subject line of the email must clearly describe the subject matter contained in the email, and the message must include valid contact information, including your physical address;
You have the means to track anonymous complaints; and
You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.
These requirements apply to distribution lists created by third parties to the same extent as if the list were created by you.
You may not use a third party email service that does not practice similar procedures for all of its customers.
NYN may test and otherwise monitor your compliance with these requirements and may require you to seek advance approval for any Bulk Mail. NYN may throttle your mailing if your Bulk Mail is generating excess bounced messages.
Revision Date: February 15th, 2011 Revision: 1A
NYN does not undertake efforts to examine or review messages, files, or other materials which are accessible through, pass through, or reside on our servers or storage systems. In compliance with the Federal Digital Millennium Copyright Act, NYN has designated Robert Novena as the individual to receive complaints about alleged copyright infringement taking place on any of NYN servers or storage systems.
To avail yourself of the protections of the Digital Millennium Copyright Act, if you believe that your copyright(s) is being infringed by means of material hosted on NYN servers or storage systems, you need to provide a signed notice in writing to Robert Novena, containing specific identification of the allegedly infringing material and the specific location(s)/URLs on NYN web servers or storage systems where the materials are to be found. You may send that notice to 2362 Central Ave , Windsor, ON, Canada, N8W 4J2, and/or .
Upon receipt of such written notice, NYN will expeditiously remove or block access to the allegedly infringing material, and provide notice to the person who had posted that material. If NYN receives a notification from that person indicating that the claim of infringement was based upon mistake or misidentification, NYN will send you a copy of that notification.
Unless you notify NYN of appropriate court action to restrain the alleged infringement, the challenged material will then be restored or other wise made accessible again.
Revision Date: October 3rd, 2014 Revision: 1B