Terms and Conditions – TELUS ePoint™ Service

This is a contract between you (the “Customer” or “you”) and TELUS Communications Company ("TELUS").  It spells out the terms and conditions which apply to your purchase and use of TELUS ePoint Service (the "Service") on a month to month term or your use of the Service for a trial period.  TELUS ePoint Service is described at http://www.telus.com/epoint (the "Site").

You must accept the terms of this Agreement prior to using the Service.

AFTER CHECKING THE BOX "I AGREE TO THE TERMS AND CONDITIONS" WHEN ORDERING THE SERVICE THROUGH THE INTERNET OR BY CLICKING “SIGN-IN” TO ACCESS THE SERVICE AND USE THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS, AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX "I AGREE TO THE TERMS AND CONDITIONS" OR CLICK “SIGN-IN” TO ACCESS THE SERVICE AND USE THE SERVICE. 

TELUS reserves the right, in its sole discretion, to change or modify this Agreement and any policy or guideline incorporated by reference at any time and from time to time and to determine whether and when any such changes apply to both existing and future customers.  Any changes or modification will be posted on the Site for 30 days, and become effective upon posting on the Site.  You are responsible for regularly reviewing the Site to obtain timely notice of such changes or modifications.  Your continued use of the Service following TELUS' posting of any changes or modifications will constitute your acceptance of such changes or modifications.

IF YOU DO NOT AGREE TO THE TERMS OF ANY CHANGE OR MODIFICATION, DO NOT CONTINUE TO USE THE SERVICE AND IMMEDIATELY NOTIFY TELUS OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 2.4.

1.  TELUS ePoint Service

1.1  Service Description.  TELUS ePoint Service provides the Customer with the ability to store, access and share files and other content by providing access to hosted and managed software made available through a web portal (the “TELUS ePoint Service web portal”).  TELUS ePoint Service facilitates access to and use by the Customer of storage space allocated to the Customer within TELUS’ server infrastructure (the “Customer’s Workspace”).

1.2  Access to Customer’s Workspace.  The Customer shall access the TELUS ePoint Service web portal using a Customer e-mail address and a Customer specified password.  The Customer may authorize employees and others to access the TELUS ePoint Service web portal.  Such access includes the ability to retrieve and post documents, information and other materials to the Customer’s Workspace or Customer designated workspaces within the Customer’s Workspace.  The Customer and its users are authorized to access the Customer’s Workspace only through the TELUS ePoint Service web portal.

TELUS does not endorse nor is TELUS responsible for any materials made or displayed on the Customer’s Workspace whether by the Customer or others.  TELUS is not responsible for any errors or omissions in such materials nor for any results obtained from the use of such materials.  Under no circumstances will TELUS be liable for any loss or damage caused by the Customer’s or any other party’s reliance on materials obtained through the TELUS ePoint Service web portal.

1.3  Links.  The TELUS ePoint Service web portal may contain links to other Internet web sites which are not owned or operated by TELUS.  TELUS has not reviewed such Internet web sites nor does it have any control over such Internet web sites.  TELUS is not responsible for the content of such Internet web sites, any updates or changes to such sites, or the privacy or other practices of such sites.  That TELUS provides links to other Internet web sites does not indicate any approval by TELUS or endorsement of any material contained on any linked Internet web site.  TELUS provides links to other Internet web sites to the Customer as a convenience.  The Customer should become familiar with the terms of use and practices of any linked Internet web site which it accesses.

2.   Term, Charges, Payment, and Termination

2.1  Term.  TELUS ePoint Service is provided on a month to month term.  Either party may terminate this Agreement on 30 days notice, except that during any trial period for the Service either party may terminate this Agreement on notice.  

2.2  Charges.  You agree to pay all charges (and applicable taxes) which relate to your use of the Service in accordance with the rates, terms and conditions established from time to time by TELUS.  Such rates, terms and conditions will be posted on the Site or otherwise made available to you by TELUS.  

You shall also be responsible for charges associated with any additional storage you order.  In addition to the monthly charges for the Service, you shall be responsible for the payment of all federal, provincial, and local sales, use, and any other taxes assessed with respect to the Service.

During any trial period for the Service, you shall not be responsible for any charges for the Service.  To access Service features that are not available for use during any trial period for the Service, you must upgrade your trial account for the Service to a paid for account.  Prior to expiration of any trial period for the Service, TELUS shall provide you with information relating to continuing use of the Service on the expiration of the trial period.  You shall be responsible for all charges associated with TELUS ePoint Service commencing on the day after you upgrade your trial account for the Service to a paid for account. 

2.3  Payment.  TELUS will bill the Customer for, and the Customer shall pay, all charges specified on the TELUS bill.  Payment in full, without deduction or set off, of the amounts in each bill is due on the due date shown on the bill or, if no due date is shown on the bill, within 30 days of the date of the bill.  The Customer shall pay interest on all overdue amounts at the rate shown on the bill or, if no interest rate is shown on the bill, at the simple interest rate of 2% per month (24% per year). 

Your failure to fully pay the amount shown on any bill by the due date will be deemed a material breach of this Agreement, justifying TELUS' immediate suspension of its provision of the Service and/or termination of this Agreement.  You are responsible for any fees associated with reinstatement of Service.  Any such termination will not relieve you from paying past due fees plus interest.  

2.4  Termination.  The Customer must provide TELUS with notice of termination by sending an e-mail to service@epoint.telus.com.  The Customer shall provide TELUS with sufficient Customer identification information so that TELUS may properly identify the Customer and the Customer's account.  A TELUS termination notice shall be sent to the e-mail address specified by the Customer when first ordering the Service.

If you terminate this Agreement during any trial period for the Service, any notice of termination will be effective on TELUS’ receipt of such notice.  If you terminate this Agreement any time after expiration of the trial period, any notice of termination will be effective 30 days following TELUS’ receipt of such notice.  If this Agreement is terminated prior to the end of your billing period, TELUS shall not refund to you any fees paid in advance of such termination.  If TELUS terminates this Agreement, TELUS shall refund to you the pro-rata portion of pre-paid fees attributable to Service not yet provided as of the termination date, unless otherwise expressly provided in this Agreement. 

If this Agreement expires or is terminated for any reason, TELUS will not be liable to you for compensation, reimbursement or damages on account of any loss of prospective profits, anticipated sales, goodwill or on account of expenditures 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 charges accrued prior to the termination date.  TELUS shall not be responsible to notify any third party of the termination of your account nor provide any termination assistance.  Without limiting the generality of the foregoing, TELUS shall have no obligation to forward any data, information or other content related to your use of the Service, and you acknowledge

3.  Use of Service

3.1   Responsibility for Use. You acknowledge and agree that you are responsible for anything that may be required to connect to TELUS ePoint Service including, without limitation, the installation, operation and maintenance of any and all software, hardware and/or Internet service.

As the account holder, you are solely responsible and liable for your account and all activities that are conducted through your account including, without limitation, any applicable fees and charges incurred.  You are responsible and liable for any and all activities that occur in respect of your use of the Service including, without limitation, activities of any users authorized by you.  

You shall:

(a)  maintain the security of the e-mail address and password used to access the TELUS ePoint Service web portal, and

(b)  be responsible for the actions of any party using the e-mail address and password used to access the TELUS ePoint Service web portal.

You and your users shall be responsible for the confidentiality and use of e-mail addresses and passwords utilized by users provided access to the TELUS ePoint Service web portal by you.

You shall immediately notify TELUS of any unauthorized use of the Service or of any other breach of security, and will provide assistance as requested by TELUS to stop or remedy any breach of security.

You and your users will not attempt to gain or allow access to any data, files or programs to which you are not entitled under this Agreement and, if such access is obtained, you and your users will safeguard as confidential information, and immediately return such materials to TELUS, without using, copying, disclosing or distributing such materials.

You and your users shall:

(a)  use TELUS ePoint Service for the Customer’s own business purposes,

(b)  not resell TELUS ePoint Service or access to TELUS ePoint Service;

(c)  not reproduce, duplicate, copy, sell, resell, disassemble, decompile or reverse engineer all or any part of TELUS ePoint Service; and

(d)  comply with the TELUS’ Acceptable Use Policy located at www.telus.com/aup .

You acknowledge and agree that TELUS does not: 

(a)  represent or endorse the accuracy or reliability of any opinion, advice or statement transmitted through the use of TELUS ePoint Service,

(b)  assume any liability for any harassing, offensive or obscene material distributed through the use of TELUS ePoint Service, or

(c)  assume any liability for any material distributed through the use of the TELUS ePoint Service including, without limitation, any use of TELUS ePoint Service which is in violation of any third party's copyright or any other intellectual property right.

3.2  Privacy.  The TELUS Privacy Commitment at http://www.telus.com/privacy/privacy.html (the "TELUS Privacy Commitment") describes how TELUS collects, stores, processes and uses information associated with your use of the Service.  You consent to the collection, use and disclosure by TELUS and its agents of your personal information (whether previously collected or to be collected) for the purposes identified in the TELUS Privacy Commitment.  The TELUS Privacy Commitment may be updated from time-to-time.

3.3  Material and Product Requirements.  You must ensure that all material and data placed in the Customer’s Workspace is in a condition that is "server-ready" i.e., a form requiring no additional manipulation by TELUS.  TELUS 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", TELUS has the option at any time to reject this material.  TELUS 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 TELUS.  

3.4  Customer’s Workspace Usage.  If you attempt to utilize any storage space in excess of the assigned limit, you may increase your assigned storage limit by accessing a Service option available through the TELUS ePoint Service web portal.  If you increase your storage limit, TELUS shall assess you with additional charges according to TELUS' then current pricing policy.

4.  Intellectual Property Rights

4.1   TELUS Property.  You acknowledge and agree that all programs (in object code and source code form), data, service, processes, designs, technologies, materials and all other things comprising the Service are owned by and shall remain the sole property of TELUS, its licensors or its suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets and/or other proprietary rights and laws.  

4.2  Your Content.  You are solely responsible for all information, data, software or other materials or content transmitted, stored or received by you using TELUS ePoint Service (the “Content”).  TELUS exercises no control whatsoever over the content, accuracy or quality of the Content.  TELUS is not responsible for checking, verifying or editing the Content for completeness or for detecting errors or anomalies or for recreating or re-transmitting data.

TELUS does not claim ownership of the Content that you post, upload, input, provide, submit or otherwise transmit to TELUS or any third party, using the Service.  However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to TELUS or any third party, using the Service, you have granted TELUS a royalty-free, non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate such Content to the extent reasonably required by TELUS for the purposes of providing the Service to you under this Agreement or to ensure adherence to or enforce the terms of this Agreement.  You expressly (a) grant to TELUS a license to cache the Content, 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.

5.  Enforcement

5.1  Investigation of Violations.  TELUS may investigate any reported violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, licensors or suppliers, customers and/or third parties.  TELUS will not access or review the Content except as required or permitted by applicable law or legal process.

5.2  Actions.  TELUS reserves the right and has absolute discretion to restrict or remove from the Customer’s Workspace any Content that violates this Agreement or related policies, or is otherwise objectionable or potentially infringing on any third party's rights or potentially violating any laws.  In the event of becoming aware of any possible violation by you of this Agreement, any related policies, or third party rights or laws, TELUS 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 the Content, and/or (d) disabling or removing any Content distributed or made available for distribution via the Service, or other content not supplied by TELUS which, in TELUS' sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes TELUS to civil or criminal liability or public ridicule.  The above stated rights of action, however, do not obligate TELUS to monitor or exert editorial control over the Content made available for distribution via the Service and you acknowledge that TELUS has no obligation to censor or monitor use of the Service by you, or any obligation to censor or monitor any Content, sent, received or accessible through the Service.  In the event TELUS takes corrective action due to such possible violation, TELUS shall not be obligated to refund to you any fees paid in advance of such corrective action.

In addition to its rights elsewhere in this Agreement, TELUS has the right to block access to, or to remove or require you to remove from the Customer’s Workspace, any Content that violates any provisions of this Agreement, that may expose TELUS to legal liability, or that may be deemed, in TELUS’ sole discretion, to be illegal, objectionable or infringing on any third party's rights.  If TELUS exercises any of these rights, it is not obligated to refund any charges paid in advance by you.

5.3  Disclosure Rights.  To comply with applicable laws and lawful governmental requests, to protect TELUS' systems, its licensors, suppliers, and customers, or to ensure the integrity and operation of TELUS' business and systems, TELUS 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 in the Customer’s Workspace.  TELUS 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 TELUS' Privacy Commitment and TELUS' right to disclose under this section, TELUS' right to disclose under this section will prevail.

6.  Warranties and Disclaimers

6.1  Customer Warranties and Representations to TELUS.  You warrant, represent, and covenant to TELUS that:  (a) you possess the legal right and ability to enter into this Agreement; (b) you will use the Service only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (c) you will be financially responsible for use of the Service; (d) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Service, including, without limitation, your Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (e) 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.

6.2  Warranty and Disclaimer.  TELUS warrants that the Service will be provided by qualified personnel in a professional manner.  TELUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, DURABILITY AND FITNESS FOR A PARTICULAR, OR ANY, PURPOSE AND THE SERVICE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS.  Although TELUS will use commercially reasonable measures to maintain the security of the Service, TELUS assumes no responsibility for the effectiveness of the security measures provided by TELUS.

7.  Exclusion and Limitation of Liability

7.1  Exclusion of Liability.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL TELUS, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, THE "TELUS ENTITIES" AND EACH, A "TELUS ENTITY") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OPPORTUNITY, EARNINGS, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF THE TELUS ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO DELAYS, ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, VIRUSES OR DEFECTS IN THE TRANSMISSION OF ANY INFORMATION, MATERIAL OR DATA OVER OR THROUGH TELUS' SYSTEMS OR NETWORKS OR THE SYSTEMS OR NETWORKS OF THIRD PARTIES..

7.2  Limitation of Liability.  CIRCUMSTANCES MAY ARISE IN WHICH YOU ARE ENTITLED TO RECOVER DAMAGES FROM ONE OR MORE OF THE TELUS ENTITIES.  IN SUCH INSTANCE, THE AGGREGATE LIABILITY OF THE TELUS ENTITIES FOR DAMAGES IS LIMITED TO THE LESSER OF:  (A) THE AMOUNT ACTUALLY PAID TO TELUS BY YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED, AND (B) THE SUM OF ONE THOUSAND ($1,000.00) DOLLARS.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.  THE FEES FOR THE SERVICE SET BY TELUS HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK.  ACCORDINGLY, YOU RELEASE THE TELUS ENTITIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS PARAGRAPH.

7.3  Interruption of Service .  You acknowledge and agree that TELUS and its licensors or suppliers will not be liable for any temporary delay, outages or interruptions of the Service.  Further, TELUS 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).

8.  Indemnification

8.1  Indemnity to TELUS.  You release and hold harmless, and agree to indemnify, the TELUS Entities from and against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by the TELUS Entities arising out of or relating to:  (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy; (b) your improper or illegal use the Service; 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).

9.  General Provisions

9.1  Entire Agreement.  This Agreement, including any and all documents, Internet web sites, rules, terms and policies referenced in this Agreement, constitutes the entire agreement between you and TELUS with respect to the matters referred to in this Agreement and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between you and TELUS with respect to such matters.

9.2  No Waiver.  The failure of TELUS to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.  Neither the course of conduct between you and TELUS nor trade practice shall act to modify any provision of this Agreement.

9.3  Severability.  In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of you and TELUS, and the remainder of this Agreement shall remain in full force and effect.

9.4  Choice of Laws.  This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada.  You irrevocably consent to the exclusive jurisdiction of the courts of the Province of Alberta in connection with any matter arising under this Agreement.  Use of the Service in any jurisdiction that does not give effect to all provisions of this Agreement, including, without limitation, this paragraph, is prohibited.

9.5  Assignment.  TELUS may at any time assign its rights and obligations under this Agreement, in whole or in part, without notice to you.  You may not assign this Agreement.

9.6  Enurement.  This Agreement will enure to the benefit of and bind you and TELUS and our respective personal and legal representatives, successors and permitted assigns.

9.7  Cumulative Rights.  The rights, powers and remedies of TELUS in this Agreement, including, without limitation, the right to suspend, restrict or terminate Service, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to TELUS at law or in equity.

9.8  Survival.  Any provisions, including, without limitation, the disclaimers of warranty and limitations and exclusions of liability contained in this Agreement that by their meaning are intended to survive termination of this Agreement shall survive the termination of this Agreement.

9.9  Independent Contractors .  You agree that no joint venture, partnership, employment or agency relationship exists between TELUS and you as a result of this Agreement or use of the Service.

9.10  Headings.  The section headings in this Agreement are for convenience only and have no legal or contractual effect.

TELUS ePoint Service 30/04/2007