The TELUS Website Services: Do It Yourself web hosting services (the “Services”) are further described in the TELUS website located at (Medium & Large Business) www.telus.com/websiteservices and (Small Business) www.telus.com/businesswebsiteservices (the “Site”).
If you have registered a domain name through TELUS, then you agree to be bound by the Domain Names Terms and Conditions.
This is an agreement between you and TELUS Communications Inc. ("TELUS"). It spells out the terms and conditions which apply to your purchase and use, in any manner, of the Services. These terms and conditions, together with such other additional or alternative terms, conditions, rules and policies which are displayed or to which you may be directed in connection with any particular Service or the Site, as all of the same may be modified by TELUS, form the agreement between you and TELUS for the Services (the “Agreement”).
You must accept the terms of this Agreement prior to ordering or using the Services. BY CONTINUING TO USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY THE TERMS AND CONDITIONS CONTAINED HEREIN, AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
TELUS reserves the right to change or modify this Agreement, and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing and future customers. Any changes or modification will be posted by TELUS, and become effective upon posting of the revisions on the Site. TELUS will post a notice of such changes or modifications on the Site for thirty (30) days. You are responsible for regularly reviewing the Site to obtain timely notice of such changes or modifications. Your continued use of the Services 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 THIS AGREEMENT OR ANY MODIFICATION THERETO, YOU MAY NOT USE THE SERVICES AND YOU MUST IMMEDIATELY NOTIFY TELUS OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 3 BELOW.
- 2.1 Term
The Services are provided on a month to month basis until terminated in accordance with this Agreement.
- 3.1 Termination by You or TELUS
You may terminate this Agreement at any time by notifying TELUS of the date you want the cancellation to be effective. TELUS may at any time terminate this Agreement upon 30 days’ prior notice in writing. If this Agreement is terminated by either you or TELUS, for any reason, you shall pay all unpaid charges for the Services up to the termination date.
- 3.2 Termination for Cause
Notwithstanding the foregoing, TELUS reserves the right to immediately terminate the Services for reasonable cause, including but limited to (i) non-payment to TELUS; (ii) failure to meet TELUS’ credit requirements; (iii) non-compliance with any of the provisions of this Agreement; (iv) requests by law enforcement or other government agencies; (v) TELUS ceases to offer the Services; (vi) TELUS’ inability to verify or authenticate any information you provide to TELUS; or (vii) TELUS concludes in its sole discretion that your use of or access to the Services may result in liability to us. In the event of default by you, any and all payments required to be made to TELUS by you shall be due and payable immediately. Termination of this Agreement shall not relieve you from any liability, including amounts owing, accrued prior to the time that such termination becomes effective.
- 3.3 Notice of Termination
You must provide TELUS with notice of termination in writing by sending an e-mail to email@example.com. You shall provide TELUS with sufficient customer identification information so that TELUS may properly identify you and your account. Notice on the part of TELUS shall be provided by way of an email from TELUS to the email address specified by you when first ordering the Services.
- 3.4 Termination Policy
If you terminate Services prior to the end of a calendar month, (a) 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 Services not yet rendered as of the termination date, unless otherwise expressly provided herein.
- 3.5 Liability and Obligations on Termination
Should this Agreement be terminated for any reason, TELUS will not be liable to you because of such 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. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date. TELUS shall have no responsibility 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 email messages, data, information or other content related to your use of the Services, and you acknowledge that all such email messages, data, information and content may be immediately deleted by TELUS.
4. Payment and Charges
- 4.1 Charges
You agree to pay all recurring and non-recurring fees and charges (and applicable taxes) incurred which relate to your use of the Services, in accordance with the rates, terms and conditions established from time to time by TELUS that are applicable to the Services which you have selected. Such rates, terms and conditions will be posted on the Site or otherwise made available to you by TELUS. TELUS shall begin charging you on the date that you subscribe for the Services, unless otherwise specified by TELUS. All prices on the Site are net of tax and you shall be responsible for the payment of all federal, provincial, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on TELUS' net income.
If TELUS initiates a new domain name registration and/or transfers an existing domain name on behalf of you as a result of a special promotion offered by TELUS, TELUS reserves the right to charge for domain registration and/or Service charges unless specified in the promotion.
- 4.2 Payment by Credit Card
All charges for Services must be paid on a monthly basis in advance according to the then current price applicable to the Services. When ordering the Services through the online process at the Site, you must elect to pay for the Services by credit card. TELUS reserves the right to modify the forms of payment it will accept, at any time, in its sole discretion.
You expressly authorize TELUS or its agents to charge all fees and charges incurred by you under this Agreement to such credit card, and such authorization will survive termination of this Agreement until there are no charges owing by you under this Agreement. If you use a credit card and TELUS does not receive payment from the card issuer, you agree to pay all amounts due, upon demand by TELUS. You must notify TELUS 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 TELUS from charging your account.
- 4.3 Failure to Pay
The billed amount is payable in full, without deduction or set off, by the due date shown on the bill. The Customer shall pay a late payment charge of 2% per month (compounded to 26.82% per year), calculated from the billing date, on any amounts not received by TELUS by the due date shown on the bill. TELUS may change the late payment charge at any time by giving at least 30 days’ advance notice to the Customer.
In addition, your failure to fully pay any amounts payable to TELUS within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, justifying TELUS' immediate suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstatement of Services. Any such termination would not relieve you from paying past due fees plus applicable late payment charges. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, legal fees, court costs and collection agency fees.
5. Logo Design Service (Optional)
- 5.1 Logo Design
You may purchase the TELUS Logo design service (the “Logo Service”) at an additional cost. If you purchase the Logo Service, the terms and conditions in this section 5 apply to you and the Logo Service is a “Service” for the purposes of this Agreement.
The Logo Service provides you the option to use a system to post specific assignments and project descriptions (each, a “Project”), including illustrative samples or other media (each, a "Creative Brief"), provide additional direction during the design process (each, a "Revision Brief") and obtain responses (each, a "Response") to those Creative or Revision Briefs. Your Responses will be created iteratively through a drafting cycle of Creative Briefs, Revision Briefs and Responses, ultimately resulting in a final Response conforming to your various Creative and Revision Briefs (the “Final Product”). TELUS does not have a duty to and does not generally screen or edit content, but TELUS reserves the right to refuse the Logo Service, monitor or to remove, without notice, any content for projects which, in our sole discretion, are deemed illegal, misleading, or obscene, or are otherwise in breach of this Agreement.
- 5.2 Refunds
If you are not satisfied with the initial design Responses provided by TELUS, you may request to have a re-draw of a brand new set of logo designs or slogans. You may request a refund by completing a refund request form, which will be provided to you upon request. Upon timely receipt of the completed form, TELUS will refund the total payment made by you on the logo design package purchased. However, you shall forfeit the right to the refund outlined below if yourequest additional revisions (1 or more design changes regardless of the complexity) or modifications to any of the initial concepts. You shall also forfeit the right to a refund if you do not respond in a timely manner to a status notification from us, as described above. There are no refunds for any rush service charges. 24 hour design fees and 24 hour rush changes are non-refundable. No refund is available for design firms or for those who order TELUS’ design services on behalf of another entity.
All refunds are issued within thirty business days from the day that the cancellation was requested. You agree that youracceptance of the refund shall constitute your sole and exclusive remedy with respect to related Responses. Additionally, youacknowledge that you will have no right (express or implied) to use any Response or other work product, content, or media, nor will you have any ownership interest in or to the same.
- 5.3 Artwork Rights.
Subject to your compliance with this Agreement, you shall own the Final Product. You shall not own any materials, media or other content generated during any revision cycles leading up to the Final Product, and TELUS expressly reserves all right, title and interest in and to the same. TELUS retains the rights to all artwork concepts and other content not selected by you. You acknowledge that your ownership rights under this Agreement are limited to the Final Product, and that no trademarks or service marks in or to any Final Product are being conveyed under this Agreement.
TELUS does not guarantee that your logo will not have similarities to those designed by TELUS for its other customers. Apart from yourlogo or business name as a whole, you obtain no right or claim of any kind to any individual design element or elements of the logo or tagline and TELUS reserves the right to use one or more of the design elements in other projects for other customers.
You hereby acknowledge that TELUS shall have no obligation or duty to perform trademark or copyright clearance searches, inquiries, or the like, in order to validate the propriety or legality of the Final Product. Moreover, you acknowledge that TELUSshall have no responsibility or obligation of any kind to assist you in seeking intellectual property protection, including, without limitation, trademark or copyright registration, for the Final Product, nor shall TELUSbe responsible for assisting you in any way to perfect your rights in or to the Final Product. It is solely your responsibility to determine if the logo is suitable and appropriate for your use and to obtain the advice of an attorney or other suitable professional regarding whether or not the logo or tagline is legally available for your use and/or infringes the rights of any third party. Accordingly, you are encouraged to perform your own independent searches with regard to the Final Product.
- 5.4 Responses, Creative Briefs, Revision Cycles.
You are solely responsible for timely preparing and posting detailed descriptions of each of your Creative Briefs, including providing samples illustrating the Customer Creative Brief and any relevant deadlines.
When TELUS provides you with a Response, you are responsible for reviewing it in a timely manner. If you fail to promptly inform TELUS that the Response is not reasonably responsive to the Creative Brief, you will be deemed to have accepted the Response. If you notify TELUS that you think a Response is not reasonably responsive to the related Creative Brief, youshall then submit a Revision Brief containing information regarding amendments or modification to be made to the initial Response. After you provide TELUS with a Revision Brief, TELUS will provide youwith a subsequent Response that conforms to the additional criteria yourequested. TELUS is not responsible for the content of Responses to the extent that they are prepared to conform to your Creative or Revision Briefs.
Revision cycles consist of additional compositions that incorporate changes you request in a Revision Brief. The number of revision cycles available to youis determined by the logo design package you have purchased. The purpose of the revision process is to create Responses that move yourproject forward in the specific direction you have determined. You may request significant changes in the first and second cycles, and the Responses generated might be quite different in nature from the original composition you selected. For logo design packages with more than two revision cycles, by the third revision request, yourrequests shall be modifications of the current composition only. Revision requests that depart from the then-current composition will be honored and completed in a timely manner, however; TELUS reserves the right to charge additional fees for each such Revision. No revision work, which requires payment, will be started without your authorization.
You agree to provide timely responses to any status notifications that TELUS sends. You shall have 30 days to respond to each Response sent . If after 30 days you have failed to respond, TELUS will assume that your project is complete and the project shall be deemed completed. At such time, TELUS will have no further obligation to you, and you will pay TELUS pursuant to the provisions of this Agreement. Notwithstanding the foregoing, TELUS reserves the right, in its sole discretion, to terminate your access to all or a portion of the Logo Service, at any time, with or without notice.
6. Use of Services
- 6.1 Responsibility for Use
You are responsible for use of the Services and the maintenance and security of all passwords related to the Services. You are solely responsible and liable for any and all activities that occur in respect of your use of the Services, including without limitation all activities of any users authorized by you or using your passwords. You are also responsible for maintaining the confidentiality of all passwords related to your use of the Services. You agree to immediately notify TELUS of any unauthorized use of the Services or your passwords or of any other breach of security and to provide assistance to TELUS, as requested, to stop and/or remedy any breach of security. TELUS reserves the right not to change the passwords without proper identification, which may include, but is not limited to, your signature.
You shall solely be responsible for use of the Services by any of your employees, officers, directors, agents as well as your end users and agree to take all necessary measures to ensure that such persons use the Services in accordance with the terms and conditions.
You shall inform TELUS and keep TELUS current with any changes to your employees, agents or representatives corresponding with TELUS.
- 6.2 Applicable Policies
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 Services. You hereby 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 Acceptable Use Policy at http://www.telus.com/aup, as it may be amended from time to time (the “TELUS AUP”), establishes the acceptable use requirements for use of the Services and outlines prohibited conduct in respect of use of the Services.
The TELUS Privacy Commitment and the TELUS AUP are referred to as the “Usage Guidelines” and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE GUIDELINES. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE GUIDELINES AND ANY MODIFICATIONS THERETO. TELUS RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS AGREEMENT.
- 6.3 Material and Product Requirements
You must ensure that all material and data placed on TELUS' equipment is in a condition that is "server-ready," which is in 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. 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 website. You must have the necessary knowledge to create and maintain a website. It is not TELUS' responsibility to provide this knowledge or customer support.
- 6.4 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 Site for the Services ordered by you. 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, TELUS may, in its sole discretion, assess you with additional charges according to TELUS' then current pricing policy, suspend the performance of the Service, or terminate this Agreement. In the event that TELUS elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees. Warning messages will be emailed to you as you exceed 80% and 90% of your package's respective bandwidth and disk space limits. If payment for extra usage is not received within two weeks of the invoice date, the expiry date of the account will be adjusted according to the amount outstanding.
- 6.5 Miscellaneous Components
You acknowledge that the Services do not include content design, development, FTPmaster maintenance, uploading and publishing, Common Gateway Interface scripts and other such executables and that all of the foregoing are your responsibilities.
7. Intellectual Property Rights
- 7.1 TELUS Property
You hereby acknowledge and agree that all programs (in object code and source code form), data, services, processes, designs, technologies, materials and all other things comprising the Services 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. TELUS shall also maintain and control ownership of all Internet protocol ("IP") numbers and email addresses that may be assigned to you by TELUS. TELUS reserves, in its sole discretion, the right to change or remove any and all such IP numbers and email addresses at any time.
- 7.2 Your Content
TELUS does not claim ownership of information, materials, software, text, images, photographs, graphics, sound, video or other content (collectively, the "Content") that you post, upload, input, provide, submit or otherwise transmit to TELUS or any third party, using the Services. However, you agree that by posting, uploading, inputting, providing, submitting or otherwise transmitting the Content to TELUS or any third party, using the Services, you have thereby 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 rendering and operating the Services 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. Youwarrant and represent that you have all necessary right to provide the Content and that such Content shall not and does not violate the intellectual property rights or any other rights of any third party.
You acknowledge and hereby grant to TELUS a royalty-free, irrevocable, non-exclusive, perpetual, worldwide right (including any moral rights) to use the Content, Creative and Revision Briefs, individual Responses provided to you, and Final Product for internal and archival purposes, and in order to display and promote the Service in any form, media, or technology now known or later developed.
- 8.1 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, customers and/or third parties. TELUS 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.
- 8.2 Actions
TELUS reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement, or related policies, 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, 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 Services, (c) restricting or prohibiting any and all uses of content hosted on TELUS' systems, and/or (d) disabling or removing any hypertext links to third-party websites, any of your content distributed or made available for distribution via the Services, 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. It is TELUS' policy to terminate Services to infringers. The above stated rights of action, however, do not obligate TELUS to monitor or exert editorial control over the information made available for distribution via the Services and you acknowledge that TELUS has no obligation to censor or monitor use of the Services by you, or any obligation to censor or monitor any content, material or other information sent, received or accessible through the Services. 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.
- 8.3 Disclosure Rights
To comply with applicable laws and lawful governmental requests, to protect TELUS' systems 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 on TELUS' servers and systems. 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's right to disclose under this section, TELUS's right to disclose under this section will prevail.
9. Warranties and Disclaimers
- 9.1 Your Warranties And Representations to TELUS
You warrant, represent, and covenant to TELUS 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 use of the Services; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party websites; (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.
- 9.2 Warranty and Disclaimer
TELUS warrants that the Services 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 SERVICES, INCLUDING ALL LOGOS AND TAGLINES, ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS.
Although TELUS will use commercially reasonable measures to maintain the security of the Services, TELUS assumes no responsibility for the effectiveness of these security measures provided by TELUS. You acknowledge that TELUS does not warrant uninterrupted or error-free Services and that TELUS does not warrant the content, availability, accuracy or any other aspect of any information including, without limitation, the accuracy of spelling or grammar, all data files, the Content and all other information or content in any form or of any type, accessible or made available to or by you or your end users through the use of the Services. TELUS shall be permitted from time to time to interrupt the Services in order to provide maintenance to the Services.
TELUSmakes no representations, warranties or covenants regarding, and does not guarantee, the truthfulness, accuracy, or reliability of any information or other material (including, without limitation, any Creative Brief, or Responses) that are communicated through, or posted to, the Services, nor does TELUS endorse any opinions expressed by any user of the Site. Without limiting the foregoing, TELUS makes no representations, warranties or covenants regarding the validity of the rights to Responses granted pursuant to this Agreement. You acknowledge that any reliance on information or other material, including, without limitation, any information related to your project, communicated through the Services, or posted to the Site, will be at your own risk. Without limiting the foregoing, you agree and acknowledge that youuse each Response at your own risk and that you are responsible for taking any actions youdeem reasonable to determine whether your use of a Response will infringe any statutory or third-party intellectual property, privacy or publicity rights. TELUS shall not be responsible for any use of photos that are not royalty free. It is your responsibility to purchase and pay for all rights to use any photos, images, graphics, icons, logos, and/or designs for any designs created by TELUS.
10. Exclusion and Limitation of Liability
- 10.1 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, 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 SERVICES, 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.
- 10.2 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 (B) THE SUM OF ONE THOUSAND ($1,000.00) DOLLARS. 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 TELUS HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE THE TELUS ENTITIES FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS PARAGRAPH.
- 10.3 Interruption of Service
You hereby acknowledge and agree that TELUS and its suppliers will not be liable for any temporary delay, outages or interruptions of the Services. 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).
- 11.1 Indemnity to TELUS
You hereby release and hold harmless, and agree to indemnify, the TELUS Entities 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 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).
- 11.2 Third Party Beneficiaries
You are hereby notified that in the event that the TELUS Entities are intended third party beneficiaries of this Agreement, with a right of enforcement of the exclusions and limitations of liability and the indemnities contained in this Agreement.
12. General Provisions
- 12.1 Entire Agreement
This Agreement, and any and all documents, web sites, rules, terms and policies referenced herein, constitutes the entire agreement between TELUS and you 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 TELUS and you with respect to such matters.
- 12.2 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.
- 12.3 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.
- 12.4 Choice of Laws
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada. You hereby irrevocably consent to the exclusive jurisdiction of the courts of the Province of Ontario and the federal courts situated in the Province of Ontario in connection with any matter arising under this Agreement. Use of the Services in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph, is prohibited.
- 12.5 Successor Sites
All references to TELUS website addresses in this Agreement shall also include any successor or replacement websites containing substantially similar information as the referenced website(s).
- 12.6 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.
- 12.7 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.
- 12.8 Currency
All monetary amounts expressed in this Agreement are in Canadian dollars, unless otherwise expressly stated.
- 12.9 Cumulative Rights
The rights, powers and remedies of TELUS in this Agreement, including without limitation the right to suspend, restrict or terminate Services, 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.
- 12.10 Survival
Any provisions, including without limitation the disclaimers of warranty and limitations and exclusions of liability contained herein, that by their meaning are intended to survive termination of this Agreement shall survive the termination of this Agreement.
- 12.11 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 Services.
- 12.12 Headings
The section headings in this Agreement are for convenience only and have no legal or contractual effect.