The terms and conditions set forth and referenced
below govern access to and use of the Webnames.ca DNS and Anycast Services,
limit and exclude warranties and remedies regarding the DNS and Anycast Services,
exempt Webnames.ca and other persons from liability or limit their liability,
and contain other important provisions you should read. By submitting an order
for the DNS and Anycast Services, Customer (defined in paragraph 1.1 below)
acknowledges and signifies that it has read, understood, and agreed, without
limitation or qualification, to be bound by the terms and conditions set forth
and referenced below. If Customer does not accept and agree to those terms and
conditions, Customer may not subscribe for, access or use any of the DNS and
Anycast Services.
1.
Interpretation,
Acceptance and Amendment
1.1 Definitions: In these Supplementary Terms and
Conditions:
(a) “Customer” means the holder of the Webnames.ca
account under which the Domain Name is registered and the registered owner of
the Domain Name, jointly and severally;
(b)
“Customer
Website”
means
the website created, maintained, owned and operated by Customer and in respect
of which Webnames.ca provides the DNS and Anycast Services;
(c)
“Domain
Name”
means the
Internet domain name used by Customer as a domain name for the Customer
Website;
(d)
“Goods
and Services”
means
goods and services advertised on or sold through the Customer Website;
(e)
“Order
Form”
means the
online verification screen confirming the Customer order for DNS and Anycast
Services as accepted by Webnames.ca and as amended from time to time by
agreement of the parties;
(f) “Transactions” means transactions (including
purchase, sale, lease or provision) relating to Goods or Services facilitated
through the Customer Website;
(g)
“Transaction Services” means third party services (including payment
processing services, software distribution services and parcel delivery
services) used by Customer for processing and fulfilling Transactions;
(h) “Users” means the individuals authorized by
Customer to access and use the DNS and Anycast Services on Customer behalf in
accordance with this Agreement, including the Customer technical contact or
webmaster.
(i)
“DNS
and Anycast Services”
means
the DNS, AnyCast and related services described in the Order Form or subject to
a telephone order accepted by Webnames.ca, and as set forth in this Agreement;
and
(j)
“Webnames.ca
Website”
means
the website operated by Webnames.ca with a home page at the URL
www.webnames.ca. All references in the Webnames.ca Terms of Use and Services
Agreement to Services and Other Services include the Anycast and Managed DNS
Services. Other capitalized terms in these Supplementary Terms and Conditions
are defined in the Webnames.ca Terms of Use and Services Agreement or these
Supplementary Terms and Conditions.
1.2
Agreement
for DNS and Anycast Services:
The
DNS and Anycast Services are governed by the Webnames.ca Terms of Use and
Services Agreement (
click
here to view
), the
Webnames.ca Acceptable Use Policy (
click here
to view
) and these Supplementary Terms and Conditions, which together
constitute and are referred to herein as this Agreement. If there is a conflict
between these Supplementary Terms and Conditions and the Webnames.ca Terms of
Use and Services Agreement, then these Supplementary Terms and Conditions will
govern.
1.3
Acceptance
of this Agreement:
This
Agreement is by and between Customer and Webnames.ca. By ordering DNS and
Anycast Services, Customer signifies its acceptance and agreement to be bound
by this Agreement. If this Agreement is accepted by an individual on behalf of
Customer, the individual represents and warrants that he or she has the legal
authority to agree to and accept this Agreement on behalf of Customer. If
Customer does not agree with each provision of this Agreement, Customer may not
order, access or use the DNS and Anycast Services.
1.4
Agreements
for Domain Name and other services:
The registration, transfer or renewal
of the Domain Name (the “Domain Name Services”) and other services referenced
in the Order Form are governed by one or more of the following Webnames.ca
agreements: Webnames.ca Terms of Use and Services Agreement (
click here to view
);
Webnames.ca Registrant Terms (
click here
to view
) and other terms and conditions for other services (
click here to view
).
By ordering DNS and Anycast Services, Customer signifies its acceptance and
agreement to be bound by the Other Webnames.ca Agreements. If Customer does not
agree with each provision of the Other Webnames.ca Agreements, Customer may not
order, access or use the DNS and Anycast Services. In the event of any
inconsistency or conflict between the provisions of this Agreement and the
provisions of the Other Webnames.ca Agreements:
(a)
the provisions of this Agreement will govern regarding Customer access to and
use of the DNS and Anycast Services; and
(b)
the provisions of the Other Agreements will govern regarding Customer’s access
to and use of the Domain Name Services and the other Services.
1.5
Changes
to this Agreement:
Webnames.ca
may, in its discretion, change, supplement or amend this Agreement from time to
time, for any reason, and without any prior notice or liability to Customer or
any other person, by posting a revised agreement on the Webnames.ca Website. By
using the DNS and Anycast Services after a revised Agreement is posted on the
Webnames.ca Website, Customer signifies its acceptance and agreement to be
bound by the revised Agreement. If Customer does not agree with each provision
of the revised Agreement, Customer may not use the DNS and Anycast Services.
Customer may not change, supplement or amend this Agreement in any manner.
2.
Term,
Fees/Payments, and Customer Changes to Services
2.1
Initial
Term and Renewal Terms:
The
initial term of this Agreement will commence when the Order Form is accepted by
Webnames.ca and will continue until the last day of the minimum initial term
set forth in the Order Form, unless terminated earlier as set forth in Section 8
(the “Initial Term”). This Agreement will automatically renew for additional
consecutive periods equivalent in length to the payment period set forth in the
Order Form (each a “Renewal Term”) unless and until terminated as set forth in
Section 8. For purposes of this Agreement, the Initial Term and each Renewal
Term are referred to collectively as the “Term”.
2.2 Fees/Payments: Customer will pay to Webnames.ca the
applicable package fees for the DNS and Anycast Services as set forth in the
Order Form and as amended from time to time by Webnames.ca in accordance with
this Agreement plus all applicable taxes. Fees are in Canadian dollars unless
otherwise specified and are non-refundable. At the beginning of the Initial
Term and one month in advance of each Renewal Term, Webnames.ca will bill and
collect payment for the applicable package fees plus applicable taxes for the
entire Initial Term or Renewal Term (as applicable) in accordance with the
payment instructions set forth in the Order Form. The pricing as set out in the
Order Form is applicable for the maximum number of zones, DNS resource records,
and DNS queries per month per domain.
2.3
Plan
Upgrades:
If
Customer’s query count in one month surpasses the maximum query count for the package
purchased, the Services plan is upgraded by Webnames.ca in accordance with this
Agreement and the Customer will pay additional fees applicable for the upgraded
Services for the balance of the then-current Initial Term or Renewal Term
(which fees will be a prorated portion of the fees ordinarily payable for the
increased Services applicable to the balance of the then-current Initial Term
or Renewal Term and will be immediately charged to Customer’s credit card or
other applicable payment specified in the Order Form or otherwise on account
with Webnames.ca) and each subsequent Renewal Term (which fees will be charged
as set forth in section 2.2 above) unless Customer changes the Service in
accordance with this Agreement.
2.4
Additional Usage Fees: Webnames.ca may monitor your use of the Services,
including but not limited to, the number of zones, and number of DNS resource
records and number of DNS queries associated with each domain. Webnames.ca reserves
the right to bill and collect payment for additional/usage fees plus applicable
taxes at the end of each month in the event the Service is not upgraded in time
to cover the additional usage fees. Webnames.ca may in its discretion require
advance payment of estimated additional/usage fees plus applicable taxes.
Except as provided in paragraph 8.3 below, payments by or on behalf of Customer
are not refundable under any circumstances (including termination of this
Agreement).
2.4
Customer
Changes to DNS and Anycast Services Plan:
Customer may request changes to
Customer’s DNS and Anycast Services plan by contacting Webnames.ca at
1-866-221-7878. Any such requested changes will not be effective unless and
until accepted by Webnames.ca in its discretion, and may be subject to
additional fees and charges. If Webnames.ca agrees to downgrade Customer’s DNS
and Anycast Services plan, then the unused portion of any pre-paid fees in
excess of the fees payable for the downgraded DNS and Anycast Services plan
will be applied as a credit against fees payable by Customer for the next
Renewal Term of DNS and Anycast Services only.
3.
The
DNS and Anycast Services and Restrictions
3.1
DNS
and Anycast Services:
During
the Term and subject to the provisions of this Agreement, Webnames.ca (by itself
or through its subcontractors and service providers) will use commercially
reasonable efforts to make the following Services available to Customer:
(a) DNS: Webnames.ca will provide Customer with
DNS Services as described on the
Webnames.ca
Website
which may be amended from time to time. (the “DNS Services”).
(b)
Anycast: Webnames.ca will provide Anycast Services as described on the
Webnames.ca Website
which may be amended from time to time. (the “Anycast Services’).
(c)
Technical
Support:
Webnames.ca
will provide Customer with remote (telephone or on-line) troubleshooting,
advice and assistance as may be reasonably required to resolve technical
problems regarding the DNS and Anycast Services (collectively, “Technical
Support”).
3.2
Additional
Services:
Webnames.ca
will provide Customer with such additional services as may be requested by
Customer and agreed to by Webnames.ca in its discretion from time to time.
3.3
General
Restrictions, Limitations, Requirements and Prohibitions:
The DNS and Anycast Services are
provided subject to the following restrictions, limitations and prohibitions:
(a) Plans:
Services are available in different plans, each of which may be subject to
limitations or restrictions (including limits on month queries) specified in
the Order Form or this Agreement (including the
Webnames.ca
Acceptable Use Policy
), as those limitations or
restrictions are changed by Webnames.ca or Customer from time to time as set
forth in this Agreement. If Customer’s use of DNS and Anycast Services exceeds
the applicable limitations or restrictions, then Webnames.ca may in its
discretion either immediately suspend the Services until the next applicable
metered period or upgrade Customer’s Services plan as set forth in this
Agreement.
(b)
Use
Rights
: Webnames.ca grants Customer a non-exclusive, non-transferable right
to access and use the Services for your internal purposes. Except as set forth
in this Use Rights section, Webnames.ca grants no other rights or licenses to
You with respect to the Services..
(c)
Technical
Support:
Webnames.ca
will provide Technical Support only to Customer Technical Representatives
(defined in paragraph 4.3). Technical Support will be available during the
technical support hours indicated from time to time on the Webnames.ca Website.
Requests for Technical Support may be made using the Technical Support contact
information indicated from time to time on the Webnames.ca Website. Technical
Support does not include support provided after-hours or on-site at Customer facilities
or support relating to computer software or hardware not provided by
Webnames.ca. Technical Support is subject to the limitation that not all
technical problems can or will be corrected or resolved. Technical Support is
provided for no additional fee or charge, except that Customer may be required
to pay a technical support service charge if Webnames.ca determines that the
technical problem is not caused by Webnames.ca software or systems.
(d)
Prohibited
Content, Goods and Services and Use:
You agree to use the Services for
lawful purposes only. You agree, not to use the Services for any of the
following impermissible purposes (“Abuses”): (i) use of the Services in a
manner that is prohibited by any applicable law or regulation; (ii) use of the
Services in a manner that violates the rights of any third party (including but
not limited to intellectual property rights); (iii) use of the Services for any
invasive, infringing, defamatory or unlawful purpose; or (iv) use of the
Services in a manner that, in Webnames.ca’s reasonable discretion, directly or
indirectly, produces a negative effect on Webnames.ca’s systems or network
(including, without limitation, overloading servers on the Webnames.ca network
or causing portions of the Webnames.ca network to be blocked).
Webnames.ca
shall have the right to suspend the Services if, in its sole and reasonable
determination, any one of the foregoing Abuses occur, such suspension remaining
in effect until such time as You correct the applicable Abuse(s). Except in
cases where Abuse(s) are critically impacting the Webnames.ca servers or
network, (in which case Webnames.ca reserves the right to suspend Your account
immediately without prior notice), Webnames.ca shall provide You with advance
notice of any anticipated suspension. Your failure to correct any such Abuse
within forty-eight (48) hours after Your receipt of notice from Webnames.ca
will entitle Webnames.ca to terminate this Agreement immediately without any
liability or obligation to provide a refund to You for any Service suspended or
terminated.
Notwithstanding
the foregoing, where an Abuse or any activity by an end user, which in
Webnames.ca’s reasonable discretion, critically impacts, or threatens to
critically impact Webnames.ca’s servers or network, or in the event of any
denial of service or similar attack, which in Webnames.ca’s reasonable
discretion, critically impacts, or threatens to critically impact Webnames.ca’s
servers or network, Webnames.ca reserves the right to suspend any violating domain(s),
zone(s) or record(s) immediately and without prior notice to You. In the event
of such occurrence, Webnames.ca will, as soon as is reasonably practical
thereafter, provide You with notice of the suspension of the violating
domain(s), zone(s) or record(s).
(e)
Changes
to DNS and Anycast Services:
Notwithstanding
any other provision of this Agreement, nothing in this Agreement in any way
limits, impairs or restricts Webnames.ca right and ability, and Webnames.ca
reserves the right and ability from time to time in its discretion, to alter,
change, modify or replace the DNS and Anycast Services without any notice or
liability to Customer or any other person. Changes in the DNS and Anycast
Services may affect the Customer Website, email and other related operations.
3.4
Plan
Upgrades:
If
Customer’s use of DNS and Anycast Services exceeds any of the limits applicable
to Customer’s Services plan, then instead of suspending the Services
Webnames.ca may in its discretion upgrade Customer’s Services plan to the next
higher plan level that supports Customer’s actual use of the DNS and Anycast
Services. If Customer does not wish to maintain an upgraded DNS and Anycast
Services plan, then Customer may downgrade to Customer’s original plan level
upon thirty (30) days’ notice to Webnames.ca by contacting Webnames.ca at
1-866-221-7878. Webnames.ca reserves the right to refuse a downgrade or to
charge for additional usage should Customer’s usage continue to exceed the
limits of a plan.
4.
Customer
Obligations
4.1
Domain
Name:
Customer is
solely responsible and liable for obtaining and maintaining the registration of
the Domain Name through Webnames.ca as domain name registrar or a different
registrar. For Customer to use the DNS Services, Webnames.ca must be the
registrar for the Domain Name. If the Domain Name registration expires or is
transferred to another domain name registrar, Customer may not use the DNS. Services
and this Agreement will automatically terminate. Domain Name may be registered
through a different registrar for Anycast Services.
4.2
Equipment
and Services:
Customer
is solely responsible for obtaining, provisioning, configuring, maintaining and
paying for all equipment (including without limitation computer hardware,
software [including Internet browser software that supports secure socket
lawyers (SSL) security and email software] and telephone lines) and services
(including without limitation Internet access) necessary for Customer and Users
to access and use the DNS and Anycast Services or used by Customer or Users in
connection with the DNS and Anycast Services. Customer is solely responsible
for protecting all such equipment and services from loss or damage.
4.3
Technical
Representatives:
Customer
will ensure that the Users responsible for Customer technical use of the DNS
and Anycast Services (the “Technical Representatives”) have suitable
qualifications and expertise regarding computer software and other systems
necessary to use and administer the DNS and Anycast Services on Customer
behalf.
4.4
Customer
Website:
Customer
will ensure that the Customer Website and the use and exploitation of the
Customer Website by Customer, Users, Webnames.ca and other persons as
contemplated by this Agreement will not violate any applicable laws or infringe
or violate the rights (including intellectual property, industrial property,
moral, privacy and publicity rights) of any other person. Customer represents
and warrants that Customer has all rights, title and interests necessary to use
and authorize other persons to use the Customer Website (including all content
of the Customer Website).
4.5
Acceptable
Use:
Customer is
fully responsible and liable for Customer and Users use of the DNS and Anycast
Services (including the Customer Website) and any and all acts and omissions by
Customer and Users. Customer will ensure that all use of the DNS and Anycast
Services by Customer and Users complies with all applicable laws, this
Agreement, and the
Webnames.ca
Acceptable Use Policy
, and does not infringe the
rights of other persons. Webnames.ca may, in its discretion, change, supplement
or amend the
Webnames.ca
Acceptable Use Policy
from
time to time without any prior notice or liability to Customer or any other
person by posting a revised
Webnames.ca
Acceptable Use Policy
on
the Webnames.ca Website.
4.6
Access
Codes:
The DNS
and Anycast Services may be accessed and used only through the use of the user
name and password (collectively the “Access Codes”) provided to Customer by
Webnames.ca. Customer may allow its Users to use the Access Codes, but must
otherwise ensure that the Access Codes are kept confidential and not disclosed
to or used by any other person. Customer is solely responsible for all use and
misuse of the Access Codes. Customer must immediately notify Webnames.ca if
Customer discovers or suspects any unauthorized disclosure or use of the Access
Codes. Webnames.ca is not under any obligation to verify the actual identity or
authority of the users of the Access Codes. If Webnames.ca, in its discretion,
considers the Access Codes to be insecure or to have been used inappropriately,
then Webnames.ca may immediately cancel the Access Codes without any notice or
liability to Customer or any other person. Access Codes do not prohibit or
restrict Webnames.ca access to the Customer account.
4.7
Customer
Website and Export Laws:
Customer
is fully responsible and liable for the Customer Website and all data,
materials and information sent or received by, through or using the DNS or
Anycast Services (including the Customer Website). Customer will comply with,
and will ensure that all Users comply with, all applicable export laws
concerning the transmission of technical data and other regulated materials by,
through or using the DNS and Anycast Services (including the Customer Website).
4.8
Customer
Information and Assistance:
Customer
will provide to Webnames.ca in a timely manner all information requested by
Webnames.ca in connection with the provision of the DNS and Anycast Services.
Customer will reasonably assist Webnames.ca to provide the DNS and Anycast
Services and will perform such duties and tasks as may be reasonably requested
by Webnames.ca.
4.9
Reporting
and Removal:
Customer
will immediately notify Webnames.ca if Customer knows or suspects that the
Customer Website violates this Agreement (including the
Webnames.ca
Acceptable Use Policy
). Customer will immediately
remove any offending materials from the Customer Website and cease and prevent
all prohibited use of the Customer Website immediately upon becoming aware of
such offending materials or prohibited use.
4.10 Indemnity: Without
limiting the generality of any other provision in this Agreement, Customer will
defend, indemnify and hold harmless Webnames.ca and its Representatives from
and against any and all Claims and Proceedings directly or indirectly arising
from, connected with or relating to:
(a) use of the DNS and Anycast Services by
Customer or Users;
(b) the Customer Website, Transaction
Services, Transactions or the Goods and Services, including without limitation
any disputes between Customer and users of the Customer Website, providers of
Transaction Services, parties to Transactions or users of Goods and Services;
(c) any negligence, misconduct, breach of
this Agreement or violation of the
Webnames.ca
Acceptable Use Policy
by Customer, Users, or
any other person for whom Customer is under this Agreement or in law
responsible;
(d) the suspension or termination of DNS and
Anycast Services; or
(e) the termination of this Agreement.
Notwithstanding the foregoing, Webnames.ca and its Representatives (if
applicable) retain the right to participate in the defense of and settlement
negotiations relating to any and all Claims and Proceedings with counsel of
their own selection at their sole cost and expense, and Customer will not
settle any Claim or Proceeding without Webnames.ca’s prior written consent (not
to be unreasonably withheld).
4.11 In this Agreement:
(a) “Claims” means claims, counterclaims,
complaints, demands, causes of action, liabilities, obligations, damages,
losses, legal fees, costs, expenses, and disbursements, including without
limitation reasonable attorneys’ fees and court costs, of any nature or kind,
whatsoever and howsoever arising, whether known or unknown, whether in law or
in equity or pursuant to contract or statute, and whether in any court of law
or equity or before any arbitrator or other body, board or tribunal;
(b) “Representatives” means past, present and
future directors, officers, employees, agents, subcontractors, service
providers including the Canadian Internet Registration Authority (CIRA), representatives, successors, permitted assigns, related
persons and each of them; and
(c) “Proceedings” means actions, suits,
proceedings, and hearings of any nature and kind in any court of law or equity
or before any arbitrator or other body, board or tribunal.
4.12 Transactions/Goods and Services: Customer
is solely responsible and liable for:
(a) all Transactions;
(b) selecting, obtaining and paying for all
Transaction Services; and
(c) ensuring that all Transactions, Goods and
Services, and related matters comply with all applicable laws (including
without limitation all applicable laws regarding consumer protection,
advertising, business practices, privacy and personal information protection).
4.13 Personal Information Privacy: Customer
represents, warrants and covenants with and to Webnames.ca that Customer has
obtained or will obtain from each and every individual that accesses the
Customer Website their informed consent to the collection, use, disclosure and
retention of their personal information by Customer and its service providers
(including Webnames.ca) in connection with Transactions with the individual and
all related matters. Customer will reasonably cooperate with Webnames.ca in
connection with Webnames.ca compliance with all applicable personal information
protection laws.
5. Monitoring, Removal of Customer
Website and Aggregated Data
5.1 Monitoring: Webnames.ca
is not obliged to monitor, screen, police or edit the use of the DNS and
Anycast Services (including without limitation the Customer Website or any
portion thereof), although Webnames.ca reserves the right to do so in its
discretion and without any notice or liability to Customer, Users or any other
person. Without limiting the generality of the foregoing and notwithstanding
Customer use of Access Codes or other passwords to protect or restrict access
to the Customer Website, Webnames.ca may in its discretion access and review
the Customer Website.
5.2
Suspension of DNS and Anycast
Services:
If Webnames.ca in its discretion considers the Customer
Website or any portion thereof to be prohibited by the
Webnames.ca
Acceptable Use Policy
, or if Webnames.ca receives a complaint
regarding the Customer Website or any portion thereof, Webnames.ca may in its
discretion immediately suspend the DNS and Anycast Services, without any notice
or liability to Customer or any other person.
5.3 Aggregated Data: Webnames.ca
may in its discretion collect, use and disclose to other persons aggregated,
non-identifiable information regarding the use of the DNS and Anycast Services
by Customer and Users, including Internet users access to and use of the
Customer Website.
6. Proprietary Rights
6.1 Webnames.ca Ownership: The
DNS and Anycast Services (including without limitation all software and
technology used to provide the DNS and Anycast Services and related documents
and information) are the property of Webnames.ca and its licensors, and are
protected by international copyright and other laws. Use of the DNS and Anycast
Services does not transfer to Customer or any other person any ownership or
other rights in the DNS and Anycast Services. As between the parties,
Webnames.ca owns and retains all right, title and interest in, to and
associated with the DNS and Anycast Services (including without limitation all
software and technology used to provide the DNS and Anycast Services and
related documents and information), but excluding the Customer Website. Neither
Customer nor any other person will acquire any right, title or interest in or
to the DNS and Anycast Services.
6.2 Customer Ownership: As
between the parties, Customer owns and retains all right, title and interest
in, to and associated with the Customer Website, except that Customer hereby
grants to Webnames.ca a non-exclusive, royalty free, world-wide right and
license to access, copy, use and exploit the Customer Website as may be
required to provide the DNS and Anycast Services and perform its obligations
under this Agreement.
6.3 Reservation: All rights
not expressly granted under this Agreement are reserved to the parties.
7. Warranty, Disclaimers/Liability
Exclusions and Limitation
The following provisions are in addition to
similar provisions in the Webnames.ca Terms of Use and Services Agreement:
7.1 WARRANTY: WEBNAMES.CA REPRESENTS
THAT THE ANYCAST SERVICES, AS DELIVERED, WILL PERFORM SUBSTANTIALLY AS
DESCRIBED IN THE SERVICE LEVEL AGREEMENT ATTACHED HERETO AS SCHEDULE “A”. YOUR
SOLE AND EXCLUSIVE REMEDY AND WEBNAMES.CA’S SOLE AND EXCLUSIVE LIABILITY FOR A
BREACH OF THE FOREGOING WARRANTY WILL BE FOR WEBNAMES.CA TO PROVIDE A CREDIT
FOR FUTURE SERVICES IN ACCORDANCE WITH SCHEDULE “A”;
7.2 GENERAL DISCLAIMER: NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT:
(a) THE DNS AND ANYCAST SERVICES ARE PROVIDED
ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND OTHER THAN AS SET OUT IN 7.1 ARE
WITHOUT ANY FURTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF
ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR
ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF
PERFORMANCE;
(b) WEBNAMES.CA DOES NOT REPRESENT, WARRANT
OR GUARANTEE THAT THE DNS AND ANYCAST SERVICES WILL MEET CUSTOMER’S NEEDS OR BE
FREE FROM ERRORS OR DEFECTS OR THAT THE DNS AND ANYCAST SERVICES WILL BE
UNINTERRUPTED;
(c) WEBNAMES.CA DISCLAIMS ANY AND ALL
RESPONSIBILITY AND LIABILITY REGARDING THE NATURE, QUALITY OR ACCURACY OF THE DNS
AND ANYCAST SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW;
(d) USE OF THE DNS AND ANYCAST SERVICES IS AT
CUSTOMER’S OWN RISK;
(e) THE DNS AND ANYCAST SERVICES MAY BE
AFFECTED BY NUMEROUS FACTORS BEYOND WEBNAMES.CA CONTROL, AND MAY NOT BE
CONTINUOUS OR UNINTERRUPTED OR SECURE;
(f) SECURITY AND PRIVACY RISKS CANNOT BE
ELIMINATED;
(g) PASSWORD PROTECTION MAY NOT PREVENT
UNAUTHORIZED ACCESS TO THE CUSTOMER WEBSITE OR CUSTOMER MATERIALS OR OTHER
INFORMATION CUSTOMER OR USERS MAY USE IN CONNECTION WITH THE DNS AND ANYCAST
SERVICES;
(h) CUSTOMER WILL REMAIN SOLELY AND
EXCLUSIVELY RESPONSIBLE FOR CUSTOMER’S AND USERS’ USE OF THE DNS AND ANYCAST
SERVICES, THE CONTROL, SECURITY AND CONFIDENTIALITY OF THE CUSTOMER WEBSITE AND
ANY AND ALL TRANSACTIONS THROUGH THE CUSTOMER WEBSITE; AND
(i) CUSTOMER HEREBY ACKNOWLEDGES THAT THE
INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO
INTERRUPTION OR DISRUPTION, AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE
BREACHES OF SECURITY.
7.3
NO RESPONSIBILITY FOR CUSTOMER
WEBSITE/GOODS AND SERVICES/TRANSACTIONS:
WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, THE CREATION, OPERATION AND USE OF THE CUSTOMER WEBSITE AND
ALL TRANSACTIONS ARE AT CUSTOMER’S OWN RISK. CUSTOMER IS SOLELY RESPONSIBLE
FOR, AND BEARS ALL RISKS AND LIABILITIES ASSOCIATED WITH, THE CUSTOMER WEBSITE,
THE GOODS AND SERVICES AND TRANSACTIONS. WEBNAMES.CA IS NOT OBLIGATED TO
ENDORSE OR EXERCISE ANY CONTROL WHATSOEVER OVER THE CUSTOMER WEBSITE, THE GOODS
AND SERVICES OR TRANSACTIONS, AND IS NOT OBLIGATED TO MONITOR, SCREEN, BLOCK,
FILTER OR POLICE THE CUSTOMER WEBSITE, THE GOODS AND SERVICES OR TRANSACTIONS
FOR COMPLIANCE WITH APPLICABLE LAWS OR ACCEPTABLE USE POLICIES. WEBNAMES.CA IS
NOT A PARTY TO ANY TRANSACTION, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY
TRANSACTION. WEBNAMES.CA MAKES NO REPRESENTATION, WARRANTY, CONDITION OR
GUARANTEE OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR
STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR
COURSE OF PERFORMANCE, REGARDING THE CUSTOMER WEBSITE, THE GOODS AND SERVICES
OR TRANSACTIONS, AND DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY
REGARDING THE CUSTOMER WEBSITE, THE GOODS AND SERVICES AND TRANSACTIONS TO THE
FULLEST EXTENT PERMITTED BY LAW.
7.4
NO RESPONSIBILITY FOR TRANSACTION
SERVICES:
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
SELECTION AND USE OF TRANSACTION SERVICES ARE AT CUSTOMER’S OWN RISK. CUSTOMER
IS SOLELY RESPONSIBLE FOR, AND BEARS ALL RISKS AND LIABILITIES ASSOCIATED WITH,
TRANSACTION SERVICES. INFORMATION REGARDING TRANSACTION SERVICES IS PROVIDED BY
WEBNAMES.CA FOR CONVENIENCE ONLY. WEBNAMES.CA DOES NOT ENDORSE OR EXERCISE ANY
CONTROL WHATSOEVER OVER TRANSACTION SERVICES. WEBNAMES.CA MAKES NO
REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY NATURE OR KIND
WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR
TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING
TRANSACTION SERVICES, AND DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY
REGARDING TRANSACTION SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW.
WEBNAMES.CA IS NOT A PARTY TO ANY CONTRACT BETWEEN CUSTOMER AND PROVIDERS OF
TRANSACTION SERVICES.
7.5
NO RESPONSIBILITY FOR THIRD PARTY
CLAIMS:
CUSTOMER IS SOLELY LIABLE AND RESPONSIBLE FOR ANY AND ALL
CLAIMS AND PROCEEDINGS DIRECTLY OR INDIRECTLY ARISING FROM, CONNECTED WITH OR
RELATING TO THE CUSTOMER WEBSITE, THE TRANSACTION SERVICES, THE GOODS AND
SERVICES, CUSTOMER’S BREACH OF THIS AGREEMENT, CUSTOMER’S OR USERS’ VIOLATION
OR INFRINGEMENT OF THE RIGHTS OF OTHER PERSONS, USERS’ VIOLATION OF THE
WEBNAMES.CA
ACCEPTABLE USE POLICY
, OR CUSTOMER’S OR USERS’ VIOLATION OF ANY
APPLICABLE CIVIL OR CRIMINAL LAW. WEBNAMES.CA DISCLAIMS ANY AND ALL
RESPONSIBILITY AND LIABILITY REGARDING ALL SUCH MATTERS TO THE FULLEST EXTENT
PERMITTED BY LAW.
7.6
NO RESPONSIBILITY FOR
UNAUTHORIZED ACCESS OR DAMAGE:
WEBNAMES.CA IS UNDER NO OBLIGATION TO
VERIFY THE IDENTITY OF USERS OF THE DNS AND ANYCAST SERVICES. WEBNAMES.CA IS
NOT RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR
DESTRUCTION OF THE CUSTOMER WEBSITE THROUGH ACCIDENT, FRAUDULENT MEANS OR
DEVICES, INTENTIONAL MISCONDUCT, OR ANY OTHER METHOD, REGARDLESS OF WHETHER
SUCH DAMAGE OCCURS AS A RESULT OF WEBNAMES.CA NEGLIGENCE, GROSS NEGLIGENCE,
FUNDAMENTAL BREACH OR ANY OTHER FAULT OR WRONGDOING. IN NO EVENT WILL
WEBNAMES.CA BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF
DATA, LOSS OF REVENUE OR PROFITS, OR FOR ANY OTHER SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE
OF OR INABILITY TO USE THE CUSTOMER WEBSITE.
7.7
EXCLUSION/LIMITATION OF
LIABILITY:
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(a) WEBNAMES.CA LIABILITY (IF ANY) UNDER THIS
AGREEMENT OR OTHERWISE IS LIMITED TO DIRECT DAMAGES SUFFERED BY CUSTOMER, AND
IN NO EVENT WILL WEBNAMES.CA BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR
DAMAGE, ARISING FROM, CONNECTED WITH, OR RELATING TO THIS AGREEMENT, THE
SUBJECT MATTER OF THIS AGREEMENT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
LOSS OF DATA AND MATERIALS (INCLUDING CUSTOMER MATERIALS), INFORMATION, BUSINESS,
MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, OR GOODWILL, ANTICIPATED OR
OTHERWISE (INCLUDING WITHOUT LIMITATION BY REASON OF ANY EXPENDITURES,
INVESTMENTS, LEASES OR COMMITMENTS MADE IN ANTICIPATION OF THE CONTINUANCE OR
PERFORMANCE OF THIS AGREEMENT), OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY
(WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR
EQUITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING
FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY WEBNAMES.CA OR ANY PERSON FOR WHOM
WEBNAMES.CA IS RESPONSIBLE, AND EVEN IF WEBNAMES.CA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BEING INCURRED; AND
(b) IN NO EVENT WILL WEBNAMES.CA TOTAL
AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PERSON UNDER THIS AGREEMENT OR
OTHERWISE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY, REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING
(INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY WEBNAMES.CA OR ANY PERSON
FOR WHOM WEBNAMES.CA IS RESPONSIBLE, AND EVEN IF WEBNAMES.CA HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BEING INCURRED, EXCEED THE
LESSER OF $100 CDN OR THE FEES PAID OR PAYABLE BY CUSTOMER TO WEBNAMES.CA FOR
THE MONTH DURING WHICH THE LIABILITY AROSE. IN THIS PARAGRAPH 7.6,
“WEBNAMES.CA” INCLUDES WEBNAMES.CA AND ITS AFFILIATES AND THEIR RESPECTIVE
PAST, PRESENT AND FUTURE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
REPRESENTATIVES, SUBCONTRACTORS, SERVICE PROVIDERS, SUCCESSORS, PERMITTED
ASSIGNS, AND RELATED PERSONS.
7.8 SOLE REMEDY: IF CUSTOMER
IS DISSATISFIED WITH THE DNS AND ANYCAST SERVICES, OR WEBNAMES.CA POLICIES,
GUIDELINES OR PRACTICES, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE
THIS AGREEMENT PURSUANT TO PARAGRAPH 8.1 AND CEASE USING THE DNS AND ANYCAST
SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER WILL NOT
BE ENTITLED TO ANY CREDITS, REBATES, OR REFUNDS FOR ANY SERVICE DEFICIENCIES,
INCLUDING WITHOUT LIMITATION ANY UNAVAILABILITY OF THE DNS AND ANYCAST SERVICES
OR THE CUSTOMER WEBSITE.
7.9 FAIR ALLOCATION OF LIABILITY: CUSTOMER
ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT PRESENTS A FAIR ALLOCATION OF RISK
AND LIABILITY, WHICH IS REFLECTED IN THE FEES TO BE PAID BY CUSTOMER FOR THE DNS
AND ANYCAST SERVICES.
7.10 OTHER RIGHTS: THE
EXCLUSION OF CERTAIN WARRANTIES AND THE EXCLUSION OR LIMITATION OF CERTAIN
LIABILITIES IS PROHIBITED BY LAW IN SOME JURISDICTIONS. SUCH LIMITATIONS MAY
APPLY TO CUSTOMER.
8. Termination and Suspension
8.1 Termination by Customer: Customer
may terminate this Agreement at any time after the Initial Term for its sole
convenience immediately upon delivery of notice to Webnames.ca. Fees paid prior
to such termination are not refundable.
8.2 Automatic Termination: This
Agreement will automatically terminate if the Domain Name ceases to be duly
registered through Webnames.ca as the domain name registrar for DNS Services.
Fees paid prior to such termination are not refundable.
8.3 Termination by Webnames.ca: Webnames.ca
may terminate this Agreement at any time for its sole convenience upon thirty
(30) days’ notice to Customer. Webnames.ca reserves the right to suspend or
terminate accounts, or remove or modify any files, which are deemed to be a
threat to the functionality or existence of the Webnames.ca DNS and Anycast
system without any prior notice to Customer. Webnames.ca may terminate this
Agreement for cause immediately upon delivery of notice of termination to
Customer if:
(a) Customer materially breaches this Agreement
(including the
Webnames.ca
Acceptable Use Policy
); or
(b) Customer becomes bankrupt, takes any step
or proceeding for the benefit of insolvent debtors, becomes insolvent or takes
any step or proceeding for liquidation, dissolution or winding up. If
Webnames.ca terminates this Agreement for its convenience, Webnames.ca will
refund to Customer any unused portion of pre-paid fees, except those fees
designated in this Agreement as non-refundable. If Webnames.ca terminates this
Agreement for cause, Webnames.ca will not refund any pre-paid fees.
8.4 Consequences of Termination: If
this Agreement is terminated for any reason whatsoever:
(a) Fees: Customer will immediately pay all fees
accrued up to the date of termination and applicable taxes without any right of
deduction or setoff;
(b) No Further Services: Customer and all
Users no longer use the DNS and Anycast Services;
(c) Deletion of Data: Webnames.ca may in its
discretion permanently delete from its systems data associated with Customer
use of the DNS and Anycast Services without any notice or liability to Customer
or any other person, and Customer will no longer have any right to access or
use the DNS and Anycast Services on Webnames.ca’s systems.
8.5 Survival: Notwithstanding
anything herein to the contrary, the following provisions of these
Supplementary Terms and Conditions, and all other provisions necessary to their
interpretation or enforcement, will survive indefinitely after the expiration
or termination of this Agreement and will remain in full force and effect and
be binding upon the parties as applicable: Sections 6, 7 and 9 and paragraphs
2.2, 4.13, 5.3, 8.4 and 8.6.
8.6 Suspension: Webnames.ca
may in its discretion, and in addition to its other remedies, immediately
suspend providing the DNS and Anycast Services to Customer without any prior
notice or liability to Customer or any other person if:
(a) Customer or any User breaches this
Agreement (including the
Webnames.ca
Acceptable Use Policy
) or engages in any prohibited or excessive
use of the DNS and Anycast Services; or
(b) Customer fails to make any payment when
due.
9. General
9.1 Force Majeure: Notwithstanding
any other provision of this Agreement, Webnames.ca will not be liable to
Customer or any other person for any delay in performing or failure to perform
any of its obligations under this Agreement to the extent performance is delayed
or prevented due to any cause or causes that are beyond Webnames.ca’s
reasonable control, including without limitation:
(a) any act of God, fire, explosion,
lightning, storm, flood, earthquake, accident, or natural disaster;
(b) war, terrorism, hostilities, civil war,
insurrection, riot, civil unrest, commotion or acts of a public enemy;
(c) labour shortages, strikes, lock-outs, or
other labour, industrial or trade action, disputes, disruption or disturbances
(whether involving its employees or those of any other person);
(d) theft, sabotage, malicious damage, fraud,
epidemic, or quarantine restrictions;
(e) material shortages or rationing;
(f) general failure, malfunction or
unavailability of power, utilities, telecommunications, data communications, or
related services;
(g) action, inaction, demand, order,
restraint, restriction, requirement, prevention or hindrance by any government
or court; or
(h) applicable law or regulation. Any delay
or failure of this kind will not be deemed to be a breach of this Agreement by
Webnames.ca, and the time for Webnames.ca’s performance of the affected
obligation will be extended by a period that is reasonable in the
circumstances.
9.2 Relationship of Parties: The
parties are independent contractors, and nothing in this Agreement or done
pursuant to this Agreement will create or be construed to create a partnership,
joint venture, agency, employment, or other similar relationship between them.
9.3 Subcontractors: Webnames.ca
may in its discretion engage subcontractors to perform any or all of
Webnames.ca’s obligations under this Agreement.
9.4 Severability. If any provision of
this Agreement is held to be invalid or unenforceable for any reason, then the
provision will be deemed to be severed from this Agreement and the remaining
provisions will continue in full force and effect without being impaired or
invalidated in any way, unless as a result of any such severance this Agreement
would fail in its essential purpose.
9.5 Governing Law and Disputes: This
Agreement will be governed by, and construed in accordance with, the laws of
British Columbia and the laws of Canada (excluding choice of law rules and the
United Nations Convention on Contracts for the International Sale of Goods)
applicable in British Columbia, which will be deemed to be the proper law of
this Agreement. All disputes arising from, connected with, or relating to this
Agreement, the subject matter of this Agreement (including the DNS and Anycast
Services), or the termination of this Agreement will be determined by the
courts of British Columbia sitting in the City of Vancouver, and the parties
hereby irrevocably submit and attorn to the original and exclusive jurisdiction
of the courts of British Columbia sitting in the City of Vancouver for those purposes.
9.6
Interpretation and
Language:
In
this Agreement:
(a)
a reference to “this
Agreement” and other similar terms refers to this Agreement as a whole
(including the
Webnames.ca
Acceptable Use Policy
) and not just to the particular provision in
which those words appear;
(b)
headings in this
Agreement are for reference only and do not define, limit or enlarge the scope
or meaning of this Agreement or any of its provisions;
(c)
words importing
persons include individuals, partnerships, associations, trusts, unincorporated
organizations, societies, and corporations;
(d)
words importing the
singular number only include the plural and vice versa;
(e)
words importing any
gender include all genders; and
(f)
reference to a day,
week, month, quarter or year, means a calendar day, week, month, quarter or
year, unless expressly stated otherwise. Customer expressly requests and
requires that this Agreement and all other related documents be drawn up in the
English language.
Les parties conviennent et exigent expressement que
ce Contrat et tous les documents qui se rapportent soient rediges en anglais.
SCHEDULE
“A” – SERVICE LEVEL
AGREEMENT FOR WEBNAMES.CA ANYCAST SERVICE (SLA)
This Schedule A is subject to the terms of, and is
incorporated by this reference, into the Agreement.
Webnames.ca reserves the right to modify this SLA from time
to time.
Upon the date when You are deployed onto the Services,
there will be a transition period of thirty (30) days (“Transition Period)
during which You and Webnames.ca will work to configure several variables in
order to meet full operational performance parameters. During the Transition
Period, the service level guarantees shall not apply.
After the Transition Period, the Services will meet or
exceed the performance objectives set forth in this Service Level Agreement
(SLA). Failure by Webnames.ca to meet the SLA will result in the issuance of a
credit to You as set out below.
Availability
1.
A "Service
Outage" shall mean that the Services were not available because:
a)
The
Webnames.ca Anycast DNS Network was unable to achieve 100% uptime for DNS name
resolution.
b)
The
Web-based user interface, zone/data transfer mechanisms, applications
programming interfaces (API) or other Customer-accessible data access or
manipulation software are unavailable for four (4) or more consecutive hours in
any calendar month, thereby preventing You (or Your applications) from being
able to reasonably add, delete or modify Your DNS or other directory data as
committed to in the published functional specifications for such Services.
2.
The following downtime
events shall not be considered part of a Service Outage:
a)
Unavailability
of the management tools and API's used to manage directory data for up to four
(4) consecutive hours in any calendar month.
b)
Unavailability
of the Services due to Your misuse, application programming, non-performance or
other negligent or unlawful acts by You or Your agents or Your suppliers,
problems with Your domain name registrar, network unavailability outside of the
Webnames.ca DNS Server Network or events of Force Majeure.
c)
Suspension
of the Services by Webnames.ca in accordance with the terms of the Agreement
(e.g. for non-payment, abuses or otherwise).
d)
Regarding
Item 1(b) above, any regularly scheduled maintenance ("Regularly Scheduled
Maintenance"), which shall mean any maintenance performed to any component
of the Webnames.ca DNS Server Network of which You are notified forty-eight
(48) hours in advance, and that is performed during standard maintenance
windows. Notice of Regularly Scheduled Maintenance will be provided to Your
designated point of contact by e-mail.
Webnames.ca, in its
sole discretion, shall determine whether an event will be considered a
"Service Outage" based on its records and data.
Remedies
When You become aware of a Service
Outage, You shall notify Webnames.ca Customer Support at
support@webnames.ca
within five (5)
calendar days.
If Webnames.ca determines in its
reasonable commercial judgment that the Service Outage event lasted for more
than one (1) minute, but fewer than four (4) consecutive hours during a
calendar month, Webnames.ca, upon Your request, will credit Your account for such
month the pro-rated charges for one (1) day's service.
If Webnames.ca determines in its
reasonable commercial judgment that the Service Outage event lasted for four
(4) or more consecutive hours during any calendar month, Webnames.ca , upon
Your request, will credit Your account for such month the pro-rated charges for
one week's service.
In order to qualify for any credit, You
must have a current and valid subscription for the Services and must have an
account in good standing with Webnames.ca. Credits will only apply to the
Monthly Fee for the Services for which this commitment was not met. Your
account shall not be credited more than once per month under this SLA.
Your sole and exclusive remedy, and
Webnames.ca’s sole and exclusive liability, in the event Webnames.ca fails to
meet the commitments set forth in this SLA, shall be to receive a credit in
accordance with the terms of this SLA.