Supplementary Terms and Conditions for Webnames.ca DNS and Anycast Services

Last published: Jun 4, 2015

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 theWebnames.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.

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