Terms and Conditions
The Registrant Rights and Responsibilities
1. Terms and Payment for Services
This Agreement shall be for an "Initial Term" of either (a) twelve (12) month if you register for Hosting Services, or twelve (12) month if you register for E-Mail Services, or (c) as otherwise accepted by you in the Order Form, located on the Site, at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide Web & Creativity with notice of termination either (a) at least seven (7) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, if you registered for and are receiving Hosting Services, or (b) at least seven (7) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, if you registered for and are receiving E-Mail Services, or (c) as otherwise accepted by you in the Order Form, located on the Site, at the time you register for the Services. You must provide Web & Creativity with your notice of termination by sending via post or e-mail. Upon Web & Creativity receipt of the written notice of cancellation, you will be asked to provide Web & Creativity with sufficient customer identification information so that Web & Creativity may properly identify you and your account. Any authenticated notice of termination will be effective upon Web & Creativity receipt thereof.
1.2 Termination Policy.
If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) Web & Creativity shall not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of Web & Creativitys standard monthly charge for each month remaining in the term, unless otherwise expressly provided herein. Web & Creativity charges no processing fee for all cancellations requests. Notwithstanding the foregoing, if you have pre-paid for an extended period of Services, you are no entitled to a pro-rated refund of the remaining months. Your termination request must be submitted to Web & Creativity via post or e-mail. Web & Creativity may terminate this Agreement at any time and for any reason by providing to you written notice of termination. If Web & Creativity terminates this Agreement, Web & Creativity shall decide at its sole discretion if a refund is applicable unless otherwise expressly provided herein.
1.3 Liability and Obligations on Termination.
Should the Agreement expire or be terminated for any reason, Web & Creativity will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, 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 and any other amounts owed by you to Web & Creativity as provided in this Agreement.
You agree to pay for all charges attributable to your use of the Services at the then current Web & Creativity prices, which shall be exclusive of any applicable taxes. You shall be responsible for the payment of all federal, province, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Web & Creativity net income.
All charges for Services must be paid in advance according to the then current price applicable to the Services, unless otherwise expressly agreed herein. Upon registration you must choose to pay for the Services either by credit card or prepayment or upon your receipt of an invoice. If you choose to pay by credit card upon registering, you thereby authorize Web & Creativity to charge your credit or debit card to pay for any charges that may apply to your account. You must notify Web & Creativity of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Web & Creativity from charging your account. If you choose to be invoiced upon registration, Web & Creativity will send an invoice to you for the Services applicable to the period for which you have registered for the Services. Web & Creativity may also send periodic invoices to you for any applicable supplemental charges associated with your use of the Services. You agree to pay to Web & Creativity the amount indicated in each invoice by the due date reflected on the invoice. If you fail to pay any fees and taxes within thirty (30) days from applicable due date for credit card or invoice payments, Web & Creativity will block the rented services. In addition, your failure to fully pay any fees and taxes within thirty (30) days after the applicable due date will be deemed a material breach of this Agreement, justifying Web & Creativity suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstated of 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, reasonable attorneys fees, court costs and collection agency fees.
2. Use of Services
2.1 Material and Product Requirements.
You must ensure that all material and data placed on Web & Creativity equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Web & Creativity. Web & Creativity 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", Web & Creativity has the option at any time to reject this material. Web & Creativity 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 Web & Creativity. 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 Web & Creativity responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Web & Creativity.
2.2 Bandwidth, Storage, and E-Mail Usage.
You agree that use of the Services hereunder will not exceed the bandwidth, storage and E-mail usage limits set out in the Order Form. 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, Web & Creativity may, in its sole discretion, assess you with additional charges, suspend the performance of the Service, or terminate this Agreement. In the event that Web & Creativity elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees.
2.3 Domain Names.
As part of the Services, you will provide Web & Creativity with a registered domain name or names or Web & Creativity will register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any EuropeanNIC or other registration services policies, or any law or regulation. You agree to promptly reimburse Web & Creativity for any fees paid by Web & Creativity to EuropeanNIC or other registration services 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 Web & Creativity will attempt to register with EuropeanNIC or other registrar an alternative domain name chosen by you. You agree to be bound by the terms of EuropeanNIC then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by Web & Creativity of any fees paid with respect to the registration of such unusable domain name.
2.3.1 Trustee Contact Service - Duties of the customer
a) The customer guarantees, that the proposed domain does not violate any third-party rights ( trademark law, naming right, competition law or copyright ) and that it does not offence against legal prohibition or public morals.
b) The customer commits to inform Web & Creativity about all appreciable registration events appertaining to the domain, particularly about the threat or initiation of legal measures unhesitatingly by postal service or fax and email.
c) On an owner change, the contract counts as cancelled and a new contract needs to be concluded if the Trustee shall be chosen as Owner-C/Admin-C again.
d) The customer guarantees to answer requests on behalf of the domain/domain registration by Web & Creativity or the Trustee immediately by postal service or fax and email, however at the latest within 48 hours after obtained by the customer. This stated period decreases accordingly if a shorter period is set on legally effective ways by a third-party (complainant, Court etc.).
e) The customer is obligated to keep the contact data up-to-date with Web & Creativity and authorizes Web & Creativity explicitly to place this information at the disposal of the Trustee and / or his Representative.
f) If the customer is not reachable through the named contact wipe or is not answering within the affixed legal period, so is the Trustee and / or his Representative authorized to make all necessary decisions, especially to release the domain because of actual or alleged violation of law.
2.3.2 Trustee Contact Service - Duties of Web & Creativity
a) Web & Creativity commits that it will provide availability of the Trustee for the domain registration during the life of contract.
b) Web & Creativity will commit that
- the Trustee and / or his Representative will solve all duties as Owner-C/Admin-C fiduciary within the meaning of the domain owner. The Trustee and / or his Representative will follow instructions of the customer accordingly, as long as they do not run contrary to canadian law or this contractual agreement;
- the Trustee and / or his Representative will inform the customer about any issues regarding the domain registration and if procurable will not make any decision without consultation of the customer.
- the Trustee and / or his Representative will, if any decisions can or has to be made without
2.3.3 Trustee Contact Service - Contraventions of law
a) Does the Trustee and / or his Representative detect, that the domain name itself or the under the domain name reachable content violate applicable law, especially penologic regulation, is he authorized to delete the domain without warning and to cancel this contract with immeditate effect. The Trustee and / or his Representative will inform Web & Creativity about that.
2.3.4 Trustee Contact Service - Commission
a) Web & Creativity receives a commission of 5,00 CAD per .de/.eu/.fr/.asia domain per year plus tax and 1,00 CAD per .nl domain per year plus tax for the allocation of an Owner-C/Admin-C. The tax is not applicable to customers outside of Canada.
b) This commission is payable yearly upfront.
c) The claim by Web & Creativity and the Trustee is satisfied by payment of this amount.
d) The customer has no claim to proportional refund if a domain gets deleted or transferred ahead of schedule.
2.3.5 Trustee Contact Service - Exchange of the Trustee
The Trustee is authorized to transfer all rights and duties of the Trustee contract to another Trustee and to register this new Trustee as Owner-C/Admin-C with the registry without further approval. As a result of this, there must not emerge a legal disadvantage for the customer. Likewise is Web & Creativity authorized to name a new Trustee and register him with the registry at any time.
2.3.6 Trustee Contact Service - Liability of Web & Creativity
Web & Creativity is not liable for compensation, immaterial of which reason of law, especially of impossibility, delay, defective or wrong service, violation of contract, violation of duties with contractual negotiation and illegitimate activity.
2.3.7 Trustee Contact Service - Liability of the customer
The customer has to dispense Web & Creativity from any costs, damage or disadvantages of any kind, which develop as a result, that a third party – eligible or unjustified, extrajudicial or judicial – assert claim based on the domain registration of the customer and in so doing make a draft on the Trustee alongside the domain owner or alone, as long as the Trustee and / or his Representative holds himself harmless towards Web & Creativity concerning these claims.
3. Intellectual Property Rights
3.1 Your License Grant to Web & Creativity.
You hereby grant to Web & Creativity a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Web & Creativity a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
3.2 Your Warranties And Representations to Web & Creativity.
You warrant, represent, and covenant to Web & Creativity that (a) you are at least eighteen (18) 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 the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (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.
3.3 Web & Creativity Materials And Intellectual Property.
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Web & Creativity or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Web & Creativity to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Web & Creativity or its suppliers. Web & Creativity shall also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that may be assigned to you by Web & Creativity. Web & Creativity reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
4.1 Investigation of Violations.
Web & Creativity may investigate any reported violation of this Agreement, the Addendum its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. Web & Creativity will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
Web & Creativity reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement, the Addendum or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or in potentially violation of any laws. In the event of becoming aware of any possible violation by you of this Agreement, the Addendum, any related policies or guidelines, third party rights or laws, Web & Creativity may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Web & Creativity systems, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Web & Creativity which, in Web & Creativity sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Web & Creativity to civil or criminal liability or public ridicule. It is Web & Creativity policy to terminate repeat infringers. The above stated rights of action, however, do not obligate Web & Creativity to monitor or exert editorial control over the information made available for distribution via the Services. In the event Web & Creativity takes corrective action due to such possible violation, Web & Creativity shall not be obligated to refund to you any fees paid in advance of such corrective action.
4.3 Disclosure Rights.
To comply with applicable laws and lawful governmental requests, to protect Web & Creativity systems and customers, or to ensure the integrity and operation of Web & Creativity business and systems, Web & Creativity may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Web & Creativity servers and systems. Web & Creativity also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of Web & Creativity On-line Privacy Practices and Web & Creativity right disclose under this section, Web & Creativity right to disclose under this section will control.
5. Disclaimed Warranties
You acknowledge and agree that Web & Creativity exercises no control over, and accepts no responsibility for, the content of the information passing through Web & Creativity host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Web & Creativity DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
6. Limitations and Exclusion of Liability
IN NO EVENT SHALL WEB & CREATIVITY OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER WEB & CREATIVITY NOR ITS SUPPLIERS SHALL HAVE LIABILITY WITH RESPECT TO WEB & CREATIVITY OBLIGATIONS UNDER THIS AGREEMENT, THE ADDENDUM OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF WEB & CREATIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME PROVINCES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE LIABILITY OF WEB & CREATIVITY AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO WEB & CREATIVITY BY YOU UNDER THIS AGREEMENT AND THE ADDENDUM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. 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 WEB & CREATIVITY HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE WEB & CREATIVITY AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.
6.2 Interruption of Service.
You hereby acknowledge and agree that Web & Creativity and its suppliers will not be liable for any temporary delay, outages or interruptions of the Services. Further, Web & Creativity 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, electronic, communications or third-party supplier failure). Web & Creativity is not an appropriate place to host sites with exceptionally high bandwidth, availability or support requirements.
You hereby release and hold harmless, and agree to indemnify, Web & Creativity and its affiliates and suppliers (and their respective employees, directors and representatives) 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 Web & Creativity or its suppliers, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, the Addendum or any applicable policy or guideline; (b) your improper or illegal use 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).
8. MISCELLANEOUS PROVISIONS
8.1 Entire Agreement.
This Agreement, in conjunction with the Addendum and all policies and guidelines incorporated herein by reference, constitutes the entire agreement between you and Web & Creativity with respect to the subject matter hereof and there are no representations, understandings or agreements, which are not fully expressed in this Agreement and the related policies and guidelines.
8.2 No Fiduciary Relationship.
No Third-Party Beneficiaries. Web & Creativity is not the agent, fiduciary, trustee or other representative of you. Except for the rights of Web & Creativity suppliers under sections 6 and 7 hereof, nothing expressed or mentioned in or implied from this Agreement or the Addendum is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement and the Addendum. This Agreement and the Addendum and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge hereof or to the Addendum shall be valid unless in writing and signed by the parties.
With your permission, Web & Creativity may, free of any obligation to pay compensation, use your name and identify you as a Web & Creativity client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
8.5 Choice of Law and Forum.
THIS AGREEMENT, INCLUDING THE ADDENDUM, WILL BE GOVERNED BY THE LAWS OF CANADA AND THE PROVINCE OF QUÉBEC, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR PROVENCIAL COURTS LOCATED IN MONTRÉAL, QUÉBEC, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
8.6 Compliance With Laws.
You shall at all times comply with all applicable laws and regulations and shall indemnify and save Web & Creativity harmless from your failure to so comply. You agree that Web & Creativity shall not have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.
You shall not use the Services in any way that violates U.S. export laws, including without limitation, uses related to the proliferation of weapons of mass destruction, prohibited chemical, biological, or nuclear weapons or missile use. You agree that you are not located in, under control of, or a national or resident of any country restricted as a destination by U.S. law or on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders.
You may not assign this Agreement or any right or obligation hereunder or under the Addendum, by operation of law or otherwise, without Web & Creativity prior written consent. Web & Creativity may assign its rights and obligations under this Agreement or the Addendum, and may utilize affiliate and/or agents in performing its duties and exercising its rights hereunder, without your consent. Subject to that restriction, this Agreement and the Addendum will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
8.8 No Waiver.
Web & Creativity failure to enforce the strict performance of any provision of this Agreement or the Addendum will not constitute a waiver of Web & Creativity right to subsequently enforce such provision or any other provisions hereunder or thereunder.
Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement and the Addendum, if applicable, shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
All provisions of this Agreement and the Addendum relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.
9.1. Logos and link logo marks (the Marks) and, during or after the term of this Agreement, shall not, in any way, contest, or help others to contest, such ownership or the validity of any registrations or rights of Web & Creativity now owned or obtained relating to the Marks.
9.2. Customer shall not use any names, marks, terms, graphics, or other materials on its Web page or site that are likely to cause confusion with or dilute the distinctiveness of either of the Marks or to damage the reputation or commercial image of Web & Creativity or any of its products.
9.3. Web & Creativity, in its sole discretion, may terminate this license immediately for any reason. Upon termination of this license, Customer shall immediately cease all further use of the Marks, or any other similar mark, name or logo, including, without limitation, any name or mark comprising the term "Web & Creativity".