This is a contract between you and Western Willow Ventures Inc. ("WWVi"). It states the terms and conditions which apply to your purchase and use, in any manner, of the WWVi web hosting, e-mail and domain services (collectively, the "Services"), as described at http://www.westernwillow.com/cms/content/terms-service (the "Site").
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, ANY APPLICABLE DOMAIN NAME REGISTRATION AGREEMENTS 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.
WWVi reserves the right to change or modify this Agreement, and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to customers. Any changes or modification will be posted by WWVi, and become effective upon posting of the revisions on the Site. You are responsible for regularly reviewing the Site to obtain timely notice of such changes or modifications. Your continued use of the Services following WWVi posting of any changes or modifications will constitute your acceptance of such changes or modifications.
IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY PROVIDE NOTICE OF TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 1.1 BELOW.
1 TERM AND PAYMENT FOR SERVICES
1.1 Term and Termination. Either party may at any time terminate this Agreement, prior to the Termination Date, provided that WWVi 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 WWVi that you no longer wish to receive the Services and the Termination Date.
Notice of Termination. You must provide WWVi with notice of termination in writing by fax to (867) 872-3339 or by e-mail (from the email account specified by you when first ordering the Services) to email@example.com. You shall provide WWVi with sufficient identification information so that WWVi may properly identify you and your account. Any notice of termination will be effective in sixty (60) days following WWVi receipt thereof.
1.2 Liability and Obligations on Termination. Should the Agreement expire or be terminated for any reason, WWVi 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. WWVi 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, WWVi 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 WWVi.
1.3 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 by WWVi. Such rates, terms and conditions will be posted on the Site or otherwise made available to you by WWVi. WWVi shall begin charging you on the date that you subscribe for the Services, unless otherwise specified by WWVi. 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 WWVi's net income.
1.4 Failure to Pay. If you fail to pay any fees and taxes within ten (10) days from applicable due date, late payment charges shall apply. 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 WWVi 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.
2 USE OF SERVICES
2.1 Responsibility for Use. You are responsible for use of the Services and the maintenance of all passwords related to the Services. You are solely responsible and liable for any and all activities that occur in respect of your use of the Services, including without limitation all activities of any users authorized by you or using your passwords. You are also responsible for maintaining the confidentiality of all passwords related to your use of the Services. You agree to immediately notify WWVi of any unauthorized use of the Services or your passwords or of any other breach of security and to provide assistance to WWVi, as requested, to stop, prevent or remedy any breach of security.
2.3 Material and Product Requirements. You must ensure that all material and data placed on WWVi' equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by WWVi. WWVi will make no effort to validate any of this information for content, correctness or usability. In the event that your material is not "server-ready", WWVi has the option at any time to reject this material. WWVi will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of WWVi. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your web site. You must have the necessary knowledge to create and maintain a web site. It is not WWVi responsibility to provide this knowledge or
2.4 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, additional charges according to WWVi “Usage Rates” may apply. In the event that WWVi 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 100% 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.
2.5 Domain Names. As part of the Services, you will provide WWVi with a registered domain name or names or WWVi will register such domain name(s) selected by you, 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 WWVi for any fees paid by WWVi 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 WWVi 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 WWVi of any fees paid with respect to the registration of such unusable domain name. There is no charge for indefinite parking of domains on WWVi servers or to transfer to another service provider. However, in the event a domain that was registered by WWVi is transferred to another service provider, and requires manual intervention by WWVi 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 WWVi is NOT a Registrar and hosting services for domain names residing on the WWVi system must be provided by WWVi. Domain name payments are non-refundable. Once a domain name is registered, the WHOIS database stores the information, which 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. WWVi will not provide refunds or credits for misspelled domain names.
2.6 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. Unless otherwise agreed upon, you may not compile or install binary files other than the ones provided by WWVi.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 WWVi 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 WWVi, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws. WWVi shall also maintain and control ownership of all Internet protocol ("IP") numbers and email addresses that may be assigned to you by WWVi. WWVi reserves, in its sole discretion, the right to change or remove any and all such IP numbers and email addresses at any time.
3.2 Your Content. WWVi 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 WWVi or any third party, using the Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to WWVi or any third party, using the Services, you have thereby granted WWVi 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 WWVi 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 WWVi a license to cache the Content, and (b) agree that such caching is not an infringement of any of your rights or any third
4.1 Investigation of Violations. WWVi may investigate any reported violation of this Agreement, its policies and guidelines or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its interests, including without limitation, its systems, servers, facilities, customers and/or third parties. WWVi will not access or review the contents of any email or similar stored electronic communications except as required or permitted by applicable law or legal process.
4.2 Actions. WWVi reserves the right in its sole and absolute discretion to restrict or remove from its servers any content that it deems to be in violation of this Agreement, its policies or guidelines, third-party intellectual property rights or any laws. WWVi may immediately take action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Services, (c) restricting or prohibiting any and all uses of content hosted on WWVi systems, and/or (d) disabling or removing: (i) any hypertext links to third-party web sites, (ii) any of your content distributed or made available for distribution via the Services, or (iii) other content not supplied by WWVi. It is WWVi policy to terminate Services to infringers. The above stated rights of action, however, do not obligate WWVi to monitor or exert editorial control over the information made available for distribution via the Services and you acknowledge that WWVi has no obligation to censor or monitor use of the Services by you, or any obligation to censor or monitor any content, material or other information sent, received or accessible through the Services. In the event WWVi takes action due to such possible violation, WWVi shall not be obligated to refund to you any fees paid in advance of such action.
5 WARRANTIES AND DISCLAIMERS
5.1 Your Warranties and Representations to WWVi. You warrant, represent, and covenant to WWVi that (a) you are at least nineteen (19) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for use of the Services; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party web sites; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your Content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
5.2 Warranty and Disclaimer. THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WWVi DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. Although WWVi will use commercially reasonable measures to maintain the security of the Services, WWVi assumes no responsibility for the effectiveness of these security measures provided by WWVi.
6 EXCLUSION AND LIMITATION OF LIABILITY
6.1 Exclusion of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL WWVi, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUPPLIERS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, THE "WWVi ENTITIES" AND EACH, A "WWVi ENTITY") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, OPPORTUNITY, EARNINGS, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF THE WWVi ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO DELAYS, ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, VIRUSES OR DEFECTS IN THE TRANSMISSION OF ANY INFORMATION, MATERIAL OR DATA OVER OR THROUGH
WWVi SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES.
6.2 Limitation of Liability. CIRCUMSTANCES MAY ARISE IN WHICH YOU ARE ENTITLED TO RECOVER DAMAGES FROM ONE OR MORE OF THE WWVi ENTITIES. IN SUCH INSTANCE, THE AGGREGATE LIABILITY OF THE WWVi ENTITIES FOR DAMAGES IS LIMITED TO THE LESSER OF (A) THE AMOUNT ACTUALLY PAID TO WWVi BY YOU UNDER THIS AGREEMENT DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED OR (B) THE SUM OF ONE HUNDRED (CAN $100.00) CANADIAN DOLLARS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY WWVi HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE THE WWVi ENTITIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS PARAGRAPH.
6.3 Interruption of Service. You hereby acknowledge and agree that WWVi and its suppliers will NOT be liable for any delay, outages or interruptions of the Services. Further, WWVi shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electrical electronic, communications or third-party supplier failure).
7.1 Indemnity to WWVi. You hereby release and hold harmless, and agree to indemnify, the WWVi Entities against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by the WWVi Entities, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your use of the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).
7.2 Third Party Beneficiaries. You are hereby notified that the WWVi Entities are intended third-party beneficiaries of this Agreement, with a right of enforcement of the exclusions and limitations of liability and the indemnities contained in this Agreement.
8 GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, including any domain registration agreements, documents, web sites, rules, terms, policies and guidelines referenced herein, constitutes the entire agreement between WWVi and you with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between WWVi and you with respect to such matters.
8.2 No Waiver. The failure of WWVi to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and WWVi nor trade practice shall act to modify any provision of this Agreement.
8.3 Severability. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of you and WWVi, and the remainder of this Agreement shall remain in full force and effect.
8.4 Choice of Laws. This Agreement shall be governed by and construed in accordance with the laws of the Northwest Territories without reference to rules governing choice of laws and the federal laws of Canada applicable therein. You hereby irrevocably consent to the exclusive jurisdiction of the courts of the Northwest Territories and the federal courts situated in the Northwest Territories in connection with any matter arising under this Agreement. Use of the Services in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph, is prohibited.
8.5 Successor Sites. All references to WWVi web site addresses in this Agreement shall also include any successor or replacement web sites containing substantially similar information as the referenced web site(s).
8.6 Assignment. WWVi may at any time assign its rights and obligations under this Agreement, in whole or in part, without notice to you. You may not assign this Agreement.
8.7 Enurement. This Agreement will enure to the benefit of and bind you and WWVi and its respective personal and legal representatives, successors and permitted assigns.
8.8 Currency. All monetary amounts expressed in this Agreement are in Canadian dollars, unless otherwise expressly stated.
8.9 Cumulative Rights. The rights, powers and remedies of WWVi in this Agreement, including without limitation the right to suspend, restrict or terminate Services, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to WWVi at law or in equity.
8.10 Survival. Any provisions, including without limitation the disclaimers of warranty and limitations and exclusions of liability contained herein, that by their meaning are intended to survive termination of this Agreement shall survive the termination of this Agreement.
8.11 Independent Contractors. You agree that no joint venture, partnership, employment or agency relationship exists between WWVi and you as a result of this Agreement or use of the Services.
8.12 Headings. The section headings in this Agreement are for convenience only and have no legal or contractual effect.
8.13 Notices. Any notices or other communications sent by WWVi to you shall be deemed to have been duly given and delivered to you when delivered by email to the account specified by you when first ordering the Services. Any notices or other communications sent by you to WWVi shall be deemed to have been duly given and delivered to WWVi when delivered by email to firstname.lastname@example.org or by fax to (867) 872-3339 (North America)/Not applicable International).