Terms and Conditions - Welcome Networks User Agreement
The terms and conditions set forth herein constitute the full and complete agreement between you and Welcome Networks Inc. ("WNINC"). By using WNINC consulting services, online services, websites, web services, any software developed by WNINC, or any other products or services of WNINC (together the "WNINC Services"), you agree to be bound by the terms of this Agreement for use of WNINC Services both past and present. The terms contained herein supersede and replace any other agreement or negotiation between you and WNINC, whether oral, written or otherwise, including any statements made to you by any representative of WNINC at any time with the sole exception of agreements physically signed by managing partners of WNINC and delivered by hand, mail, or FAX.
WNINC charges Account Set-Up Fees, Service Fees, and Consulting Fees where applicable. All such fees are subject to change with 30 days' notice. A list of current fees is available on the WNINC website. Setup Fees apply from the moment you place an order with WNINC. Service Fees apply from the moment the setup work is completed until Termination (below) regardless of your use of the Services or whether your access has been suspended. Consulting Fees apply under the terms of a Consulting Agreement.
WNINC reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not affect the then existing rights and responsibilities of each party. WNINC reserves the right to change the rate charged for any such fee under this agreement with 30 days' notice. Promotional offers and rates may not be combined. To the extent that you qualify for any promotional rates or special offers offered by WNINC, these terms and conditions may be modified by the terms and conditions of the promotion or special offer. In such a case, the terms and conditions of the promotion, to the extent they differ from the terms and conditions expressed herein, govern. Past due accounts are subject to revocation of any or all discounts at WNINC sole discretion. If any of your accounts are past due in any three separate service periods, you grant WNINC the right to contact all users associated with your accounts for direct billing.
WNINC charges a non-refundable set up fee as well as its periodic service fee which in some cases may be refundable as further set forth elsewhere herein. Depending on the services you order from WNINC, WNINC may also charge you additional fees and specifically reserves the right to institute additional charges upon notice to you. WNINC reserves the right to alter, change, amend or delete charges at its sole discretion. WNINC further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate. Periodic services fees are due for a period if the service was available for your use in the period regardless of whether the service was used in that period.
If you pay for WNINC Services through a reseller, terms regarding the reseller fees supersede the above part of this section with respect to such terms. WNINC may be required by its suppliers to pay fees in relation to hosting supplier's software and WNINC charges such fees through to its users; you agree that the supplier is solely responsible for the existence of such fees.
WNINC does not charge for your use of software when you are using traditional software licenses (as distinguished from leased/subscription or "as-a-service" software licenses). WNINC is in no way renting or sublicensing such software and does not offer such software on an application service provider or time-sharing basis because WNINC fees are not for use of such software, but for your lease of the hosting platform, for maintenance of this platform, and for support for your use and the availability of this platform.
PAYMENT OF FEES
Payment of Setup Fees and Service Fees must be made by credit card (American Express, Visa, MasterCard, and Discover) or bank transfer (bank transfer is available only upon approval, additional fees may apply) or other method at WNINC sole discretion. Payment for all Services are due at the commencement of any service period, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the WNINC Services. All payments shall be made in Canadian Dollars.
Payment by Credit Card or Bank Transfer: prior to activation of your user account and at any applicable time thereafter you authorize WNINC to charge the credit card provided by you or transfer funds from the bank account provided by you for the amount of the fees due for the agreed upon services, together with any applicable set-up charges, registration fees, bank transfer fees, or fees resulting from services provided in addition to or in excess of the previously agreed-upon limits, or any other charges outlined herein as may be applicable.
You further authorize WNINC to perform like transactions for all subsequent service periods and other applicable fees on or during a reasonable period in advance of the commencement of any such subsequent period until such fees are collected. It is your responsibility to provide WNINC with up-to-date credit card or bank transfer information that is sufficient to pay all fees due to WNINC when those payments are due. If for any reason the credit card or bank transfer information you provided is insufficient to pay any fees at the commencement of any service period, WNINC at its sole discretion will have the right to suspend and/or terminate your account under the TERMINATION section of this Agreement. Refusal or rejection of any charge or any portion thereof is grounds for account suspension and/or termination at the sole option of WNINC under the TERMINATION section of this Agreement.
Refunds of Service Fees will be made only for pre-payment of Service Fees beyond the renewal date following the effective notice and termination of this agreement under the TERMINATION section of this Agreement provided and only when pre-payment did not result in any discount or waiver of any fees. WNINC does not refund fees paid for software licenses. WNINC may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder. WNINC is not responsible for refunds of any fees paid by you to any third party or delivery of any services purchased by you from any third party. The party that WNINC bills for use of the Services has the right to limit access to those Services. In case of disputes regarding access, WNINC has the right to limit access to Services at its sole discretion.
If you pay for WNINC Services through a reseller, terms for payments to resellers supersede this section with respect to payment terms.
2. ACCEPTABLE USE
WNINC strictly enforces compliance with its acceptable use terms under this ACCEPTABLE USE section. You agree to use the WNINC Services in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under the TERMINATION section of this Agreement. You agree that:
3. SOFTWARE LICENSE AGREEMENTS
You agree to comply with software license agreements for software that you lease through WNINC, such as Microsoft Office and the Windows Desktop, and will pay for all use of any such applications.
You agree to comply with software license agreements for all software that you use with WNINC but do not lease through WNINC, herein called "Manufacturer Licensed Software". Manufacturer Licensed Software includes but is not limited to Intuit, Sage, CCH and Microsoft Volume Licensed software.
You attest that you are the legal owner of all license information that you have provided or will provide to WNINC.
You grant WNINC the right to signal your acceptance of license agreements for Manufacturer Licensed Software. You agree that such license agreements are strictly between you and the software manufacturer and that WNINC has the right to signal acceptance, including your acceptance, of such software license agreements. You understand and accept that it is your sole responsibility to ensure that your use of Manufacturer Licensed Software with WNINC is in compliance with all software license agreements.
You understand and agree that WNINC is not offering Manufacturer Licensed Software on an application service provider or time-sharing basis, but rather leases the platform on which you use such software. You agree that the relationship of WNINC to such software license agreements is that of a consultant who maintains computers that are either leased or owned by you.
You grant WNINC the right to share with the software manufacturer of Manufacturer Licensed Software your respective license information including all license-related keys and numbers for all Manufacturer Licensed Software and all related services provided by the software manufacturer.
4. OWNERSHIP OF INTELLECTUAL PROPERTY
WNINC makes every reasonable effort to maintain the confidentiality of the data you transfer to, create on, and modify on the WNINC application servers ("Hosted Data"), including but not limited to complying with Commonwealth of Massachusetts 201 CMR 17.00 with respect to Hosted Data, customer contact information and customer support information. These efforts include but are not limited to RDP encryption, username-based authentication, access control lists, and user rights restriction. You may at your discretion encrypt or password-protect Hosted Data using encrypted ZIP files, etc. WNINC will provide access to your Hosted Data only to those users you authorize (by username) and to WNINC support personnel. WNINC will not disclose Hosted Data to any other party except as required by law. Ownership of your Hosted Data remains exclusively with you and no rights to said data are transferred to WNINC unless so agreed separately. WNINC will not retain Hosted Data beyond the latter of either the end of the backup retention period (15 days) for said data or the termination of the last account associated with said data. You are responsible for verifying the integrity of your Hosted Data at least every 15 days.
You are solely responsible for ensuring that your login information is utilized only by you. Your responsibility includes ensuring the secrecy and strength of your passwords. WNINC shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Hosted Data has been accessed by unauthorized parties, it is your responsibility to notify WNINC to request the login information be reset or unauthorized access otherwise be prevented. WNINC will use commercially reasonable efforts to effect such requests as soon as practicable after their receipt.
For periodic services, the initial term of this Agreement shall be one (1) calendar month with automatic renewal for each subsequent additional month after the expiration of the initial term (each such month a "Contract Term"). WNINC reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month.
For any reason set forth herein or in the event that you breach any term of this agreement, WNINC may suspend or terminate your account by deactivating any access to any information contained on the WNINC servers related to your account. Suspension hereunder shall specifically include the disabling of your access to WNINC Services or any access to information or data related to your account. Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. WNINC reserves the right to terminate your account forthwith and without notice for any breach of this Agreement.
This Agreement and all of its terms shall remain in full force and effect until terminated. Termination shall include the removal of any and all of your information from the WNINC servers. Such information or data may or may not be made available to you by WNINC after any such termination. Restore of available data may be provided subject to a terminated data restore fee of not less than $150.00. Automatic renewal of this Agreement may be terminated at any time by either party upon fifteen (15) days' notice.
Either party may terminate this Agreement immediately and without further notice for cause. Cause for immediate termination exists (a) if any payment for WNINC Services is more than fifteen (15) days overdue, (b) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party, or (c) any breach of the provisions of the ACCEPTABLE USE section of this Agreement.
If your use of the Services is paid for by or through a third party, you understand and agree that the third party has the right to have your account suspended or terminated at any time for any or no reason and that their failure to pay for services that you use could result in termination or suspension of your access to the services and/or your hosted data.
In the event of any termination under this TERMINATION section, any service fees paid in advance beyond the next renewal date following the notice period under that section may be refunded to you. Such a refund shall not include any set-up fees or other fees which are all non-refundable.
Accounts that are thirty (30) days past due shall be automatically suspended. Accounts suspended for sixty (60) days may be terminated. Suspended accounts may be reactivated subject to a $50.00 reactivation fee in addition to all outstanding balances which shall be paid by Customer prior to reactivation of the account. In addition, account reactivation can require several business days. All past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, Customers are liable for costs of collection including but not limited to attorney's fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a $100.00 collection fee which shall be paid by Customer prior to reactivation of the account.
Any notice under this Agreement given by WNINC to you shall be via email or telephone at the address provided by you to WNINC at the commencement of this Agreement or as WNINC is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email or telephone call.
You warrant that the email and/or telephone address information you have provided to WNINC is and will remain accurate. You agree that you will inform WNINC of any changes to it within 15 days.
Any notice under this Agreement given by you to WNINC shall be via email at firstname.lastname@example.org or telephone at 604.515.1700 or mail at 205-7893 Edmonds St. Burnaby, BC V3N 1B9. Notice to WNINC by email or telephone is deemed sufficient only upon confirmation from WNINC by email.
WARRANTEES; LIMITATIONS OF LIABILITY
WNINC makes every reasonable effort to maintain operation of the WNINC Services. However because many events and circumstances are beyond the control of WNINC, WNINC does not in any way warrant or otherwise guarantee the availability of the WNINC system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of WNINC. WNINC may, at its sole discretion, limit or deny access to its servers, if, in the judgment of WNINC, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the WNINC servers.
ALL WNINC SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on WNINC websites, WNINC has no control over information contained on the Internet. WNINC, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. WNINC provides no warrantee for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the WNINC system.
You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of illegal use of WNINC Services without regard to whether or not the material claimed to have been infringing is later found to be illegal.
THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE A SERVICE CREDIT EQUAL TO THE FEE PAID BY YOU TO WNINC AS PRO-RATED FOR THE PERIOD CORRESPONDING EITHER TO ANY DOWN-TIME OR, IF CANCELLING SERVICE, TO THE PERIOD OF SERVICE FOR THE REMAINDER OF THE MONTH OF YOUR FIRST ALLEGATION OF ENTITLEMENT TO SUCH REMEDY FOLLOWING SAID ALLEGATION, BUT IN NO EVENT TO EXCEED A SERVICE CREDIT VALUED AT $100.00. IN NO EVENT SHALL WNINC BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES. IN NO EVENT SHALL WNINC BE RESPONSIBLE FOR ANY FEES PAID BY YOU TO ANY THIRD PARTY OR FOR ANY SERVICES RELATED THERETO.
You agree to fully defend and indemnify and hold harmless WNINC, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of WNINC in any way related to your use of the WNINC Services or any portion thereof.
You agree to fully defend and indemnify and hold harmless WNINC, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the WNINC Services or any portion thereof. Choice of counsel remains exclusively that of WNINC.
You agree that upon the assignment of your login information such as a username and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your login information. You further agree to defend and indemnify and hold harmless WNINC of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential login information. Choice of counsel remains exclusively that of WNINC.
10. FORCE MAJEURE / WITHDRAWAL FROM BUSINESS
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
In addition to any event of force majeure as described in the foregoing paragraph, WNINC may also terminate this Agreement in the event that WNINC elects, at its sole discretion, to cease doing business in the Canada and/or United States for economic reasons or for any other reason whatsoever. Customers who, at the time WNINC ceases doing business in the United States and/or Canada, are taking advantage of any WNINC offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the "Prepaid Services"), may not recover any damages from WNINC (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Prepaid Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other hosting services for the balance of time remaining with respect to any WNINC offer of Prepaid Services. Customers receiving Prepaid Services at the time of cessation of business shall be entitled to a reimbursement of their pre-paid service fees, if any, except for Domain Services Fees, which are always non-refundable as provided for elsewhere herein.
This agreement and the rights hereunder is not assignable or transferable except that WNINC may freely assign any or all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of WNINC, or to any affiliated company or successor in interest of WNINC. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by WNINC to any other party WNINC will notify you within ninety (90) days and, excepting assignment solely of rights of resale of WNINC Services, you have the right to terminate this Agreement by giving notice thereof in writing to WNINC and any such termination shall become effective thirty (30) days after the receipt of such notice by WNINC.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
13. CHOICE OF LAW
This Agreement shall be interpreted under the laws of the Province of British Columbia, Canada, without regard to any conflict of laws provisions.
14. DISPUTE RESOLUTION
Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the City of Burnaby, Province of British Columbia, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators and persons such as lawyers, accountants, brokers and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the Canadian Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice ("Demand for Arbitration") to the other party to such claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the provincial courts located in the City of Vancouver, Province of British Columbia. All costs of any such arbitration shall be borne equally by the parties.
This Section shall not be construed to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction, however, the arbitrator hearing the dispute to which the injunction pertains will have the power to modify or dissolve any such injunction, or to order additional injunctive relief, in connection with the final arbitration award. The parties, their representatives, other participants, and the mediator and arbitrator shall hold the existence, content, and result of any mediation and arbitration in confidence except to the extent necessary to enforce a final settlement agreement or to obtain and secure enforcement of or a judgment on an arbitration decision and award.
15. TRADEMARKS AND COPYRIGHT
All content of this web site is copyright of WNINC. You may not copy any content without WNINC written permission except under the terms of fair use or as required by law.
If you provide any third parties with information, including but not limited to web content, printed advertising, and electronic advertising, that directly links or refers to WNINC Services, said information must identify those services as "Powered by WNINC" .
If you use WNINC as a sub-vendor to provide services to your customers, your user agreements must include the following text, with appropriate substitutions for the italicized text:
Your Customer understands and agrees that: a) Your Legal Entity may use sub-vendors to deliver its services, b) sub-vendors are not a party to Your Agreement, c) Your Legal Entity is not affiliated with or endorsed by its sub-vendors unless otherwise stated herein, d) Your Customer disclaims any liability by all sub-vendors related to services purchased through Your Legal Entity, and e) Your Legal Entity is solely responsible for the provision all services on Your Website.
Notwithstanding the above, all users of WNINC Services are a party to this Agreement and agree to the above with respect to any intermediary if using WNINC through such.
17. NO AGENCY
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between WNINC and you.
WNINC may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the WNINC website in place of the old. Each and every such amendment shall be become effective immediately for users of WNINC Services including but not limited to all pre-existing and future accounts. It is your responsibility to periodically check the WNINC website for updates of this Agreement.
Our failure 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.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
Any rights not otherwise expressly granted by this Agreement are reserved by WNINC.