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Terms of ServiceLast revision: April 18, 2009 Table of Contents Main Terms and Conditions
1. INTRODUCTION. In this Service Agreement ("Agreement"), "you" and "your" refer to each client ("Client") and "we", "us" and "our" refer to Yoltek Communications Inc. ("Yoltek"). This Agreement explains our obligations to you, and your obligations to us in relation to your use of our services. By selecting Yoltek service(s) you have agreed to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional Yoltek service(s) or to modify or cancel your Yoltek service(s) (even if we were not notified of such authorization), this Agreement covers any such service or actions. Any acceptance of your application(s) for our services and the performance of our services will occur at our office in Toronto, Ontario, Canada, the location of our principal place of business. 2. SECURITY. When you establish an account with us, we provide you with a password that can be used to modify your account information and your Yoltek service(s). It is your responsibility to safeguard your password. You accept full responsibility for modifications made to your account or your Yoltek service(s) using this password. 3. VARIOUS SERVICES. The terms of this Agreement are applicable to any and all of the Yoltek services you have chosen, and to any additional services you may choose in the future which may be offered by Yoltek from time to time. 4. FEES AND PAYMENT. As consideration for the services you have
selected, you agree to pay Yoltek the applicable service(s) fees
set forth on our Website at the time of your selection. Unless we
specify otherwise, all fees are due immediately and are non-refundable.
You should be aware that the continued provision of services by
Yoltek requires the ongoing payment of fees for services you have
selected. If we are unable to collect fees by the due date, Yoltek
may take all remedies available to collect fees owed and may recover
from you all costs and expenses (including reasonable attorney fees)
incurred by Yoltek to collect such fees. These remedies include
without limitation any or all of the following: (i) the suspension
or termination of your account or any services you have selected,
(ii) the transfer of ownership of the domains in your account to
Yoltek, (iii) the update, modification or removal of DNS server
information associated with any or all domains in your account to
anything Yoltek deems reasonable or appropriate. 5. TERM OF SERVICE. Unless otherwise specified, each Yoltek service, including domain name registration, is for a one-year initial term and renewable thereafter for successive one-year terms. Any renewal of your services with us is subject to our then current terms and conditions and payment of all applicable service fees at the time of renewal and, in the case of domain name re-registration, the domain name registry's acceptance of your domain name registration. 6. TRANSFERS. You agree that a domain name transfer fee will immediately become due and payable upon your application to transfer the domain. This fee must be paid prior to transferring the domain to another registrar. 7. ACCURATE INFORMATION. As further consideration for the Yoltek service(s), you agree to: (1) provide certain current, complete and accurate information about you as requested by us; (2) maintain and update this information as needed to keep it current, complete and accurate; and (3) respond within fifteen (15) calendar days to a request by us to update or confirm the accuracy of your information. We rely on this information to carry out our services for you and comply with the requirements of the registries of domain names and to send you important information and notices regarding your account and our services. Any failure by you to provide or update such information or to respond to our request is a material breach of this Agreement. 8. PRIVACY POLICY. Our privacy policy, located on our Website at http://www.yoltek.com/privacy.html and incorporated herein by reference, sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy policy. We will post such revised policy on our Website at least thirty (30) calendar days before it becomes effective. You agree to periodically review our Website to be aware of any such revisions. You agree that, by using our services after modifications to the privacy policy become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement by providing us with notice in accordance with this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us. We will not process the personal data that we collect from you in a way incompatible with the purposes and other limitations described in our privacy policy and we will take reasonable precautions to protect your personal data from loss, misuse and unauthorized access, disclosure, alteration or destruction. 9. THIRD PARTY INFORMATION. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (1) the purposes for which such third party's personal data has been collected; (2) the intended recipients or categories of recipients of the third party's personal data; (3) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (4) how the third party can access and, if necessary, rectify the third party's personal data. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals or for your providing outdated, incomplete or inaccurate information. 10. LICENSING OF DOMAIN NAME. If you license the use of the domain name or our domain name registration services to a third party, you will remain our client and you are responsible for complying with all terms and conditions of this Agreement. 11. USE OF INFORMATION. Subject to the requirements of our privacy policy, in order for us to comply with the current rules and policies for the domain name system, you hereby grant to Yoltek the right to disclose to the public the following mandatory information that you are required to provide when registering or reserving a domain name: (1) the domain name(s) registered by you; (2) your name and postal address; (3) the name(s), postal address(es), e-mail address(es), voice telephone number(s) and where available the fax number(s) of the technical and administrative contacts for your domain name(s); (4) the Internet protocol numbers of the primary nameserver and secondary nameserver(s) for such domain name(s); (5) the corresponding names of those nameserver(s); (6) the original creation date of the registration; and (7) the expiration date of the registration. All accredited domain name registrars are required to make this information available in bulk form to third parties who agree not to use it to (a) allow, enable or otherwise support the transmission of mass unsolicited, commercial advertising or solicitations via e-mail (spam) or (b) enable high volume, automated, electronic processes that apply to registrars' systems to register domain names. 12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change the services provided under this Agreement at any time. Any such revision or change will be binding and effective immediately upon posting of the revised Agreement or change to the service(s) on Yoltek's Website, or upon notification to you in accordance with this Agreement. You agree to periodically review our Website, including the current version of this Agreement available on our Website, to be aware of any such revisions. If you do not agree with any revision to the Agreement or change to the services, you may terminate this Agreement at any time by providing us with notice in accordance with this Agreement. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you prior to termination of your Agreement with us are non-refundable. By continuing to use Yoltek's services after any revision to this Agreement or change in service(s) is posted on our Website, you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation concerning this Agreement or our services made by: (3) any agent, representative or employee of any third party that you may use to apply for our services; or (4) information posted on our Website of a general informational nature. No employee, contractor, agent or representative of Yoltek is authorized to alter or amend the terms and conditions of this Agreement. 13. MODIFICATIONS TO YOUR ACCOUNT. In order to change any of your account information with us, you must use the Account Number and the Password that was provided to you by Yoltek. Please safeguard your Account Number and Password or any security authentication option from any unauthorized use. In no event will we be liable for the unauthorized use or misuse of your Account Number or Password. 14. DOMAIN NAME DISPUTE POLICY. If you reserved or registered a .ca domain name through us, you agree to be bound by CIRA's Domain-Name Dispute-Resolution Policy and Rules that are incorporated herein and made a part of this Agreement by reference. The current version of the dispute policy and rules may be found at CIRA's Website: http://www.cira.ca. Please take the time to familiarize yourself with that policy. If you reserved or registered a .com, .biz, .info, .name, .net, or .org domain name through us, you agree to be bound by ICANN's Uniform Domain-Name Dispute-Resolution Policy (the "ICANN UDRP") that is incorporated herein and made a part of this Agreement by reference. The current version of the ICANN UDRP may be found at ICANN's Website: http://www.icann.org/udrp/udrp.htm. Please take the time to familiarize yourself with that policy. 15. DOMAIN NAME DISPUTES. You agree that, if your use of our domain name registration services is challenged by a third party, you will be subject to the provisions specified in our dispute policy (the "Dispute Policy") in effect at the time of the dispute. The Dispute Policy is currently as follows. You agree that in the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to the terms and conditions set forth below in this Agreement. If we are notified that a complaint has been filed with a judicial or administrative body regarding your domain name registration or your use of our domain name registration services, you will not be permitted to make any changes to your domain name record without our prior approval. We will not allow you to make changes to such domain name record until: (1) we are directed to do so by the judicial or administrative body, or (2) we receive written notification by you and the other party contesting your registration or use of our domain name registration services that the dispute has been settled. Furthermore, you agree that if we and/or you are subject to litigation regarding your registration or use of our domain name registration services, we may deposit control of your domain name record into the registry of the judicial or administrative body. 16. DOMAIN NAME DISPUTE POLICY MODIFICATIONS. You agree that we, in our sole discretion, may modify our Dispute Policy. We will post any such revised policy on our Website at least thirty (30) calendar days before it becomes effective. You agree to periodically review our Website to be aware of such revisions. You agree that, by maintaining the reservation or registration of your domain name after modifications to the Dispute Policy become effective, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement by providing written notice to us in accordance with this Agreement. We will not refund any fees paid by you if you terminate your Agreement with us. 17. AGENTS. You agree that, if your agent purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, and the Dispute Policy, whether your agent was authorized by you or not. You certify that your agent is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement and that he or she has apprised you of the terms and conditions of this Agreement. In addition, you are responsible for any errors made by your agent. We will not refund any fees paid by you or your agent on your behalf for any reason based on any act or omission of your agent. 18. NOTICES AND ANNOUNCEMENTS. You authorize us to notify you as our client of information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails and other notices describing changes, upgrades, new products and services or other information pertaining to Internet services, Internet security or to enhance your identity on the Internet and/or other relevant matters. If you do not wish to receive bulk e-mail solicitation notices or announcements please send us an e-mail at support@yoltek.com. 19. LIMITATION OF LIABILITY. To the extent permitted at law, Yoltek and its contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from your use or inability to use any of the Yoltek services or for the cost of procurement of substitute services. We disclaim any and all loss or liability resulting from, but not limited to: (1) any failure or inability to register the domain name; (2) any third party claims arising from or based on your use of our services; (3) access delays or access interruptions; (4) data non-delivery or data mis-delivery; (5) acts of God; (6) the unauthorized use or misuse of your Account Number or Password; (7) errors, omissions, or misstatements in any and all information or service(s) provided under this Agreement; (8) the deletion of or failure to store e-mail messages; (9) the development or interruption of your Website; (10) our processing of your application for our services, our processing of any authorized modification to your domain name record or your agents failure to pay any fees, including the initial registration fee or re-registration fee; or (11) the application of the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, or the Dispute Policy. You agree that our entire liability, and your exclusive remedy, with respect to any Yoltek service(s) provided under this Agreement and/or for any breach of this Agreement is solely limited to the amount you paid for such service(s). 20. INDEMNITY. You agree to release, indemnify, and hold Yoltek, our contractors, agents, employees, officers, directors, shareholders, affiliates and assigns harmless from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising from your domain name registration or use of your domain name or the Yoltek services provided hereunder. When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. In addition, in the event we are made a party to any claim, suit or action by you which is unsuccessful or by a third party in each case relating to or arising from your domain name registration or use of your domain name or the Yoltek services provided hereunder, you will reimburse us, at a reasonable rate, for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response. 21. BREACH. You agree that your failure to abide by any provision of this Agreement, any Yoltek operating rule or policy, the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, or the Dispute Policy may be considered by us to be a material breach of this Agreement and that we may provide to you a written notice in accordance with this Agreement, describing the breach, to you. If within ten (10) calendar days of the date of such notice, you fail to provide evidence, which is reasonably satisfactory to us, that you have not breached your obligations under the Agreement, then we may delete the registration or reservation of your domain name, transfer the domain name to Yoltek and/or terminate the other Yoltek service(s) you are using without further notice. We will not refund any fees paid by you prior to the termination of your Agreement due to your breach. Any such breach by you shall not be deemed to be excused simply because we did not act earlier in response to that, or any other breach, by you. 22. NO GUARANTY. You agree that, the registration of your chosen domain name does not confer immunity from objection to either the registration or use of your domain name. 23. REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (1) the information that you or your agent on your behalf provide to us during the application process to register your domain name or to apply for other Yoltek service(s) is, accurate and complete, and that any future changes to this information will be provided to us in a timely manner; (2) to the best of your knowledge and belief neither the registration of your domain name nor the manner in which you intend to use such domain name will directly or indirectly infringe the legal rights of a third party; (3) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder; and (4) you are of legal age to enter into this Agreement. You agree that your use of our service(s) is solely at your own risk. You agree that all of our services are provided on an "as is," and "as available" basis. 24. DISCLAIMER. WE EXPRESSLY DISCLAIM ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY OR REPRESENTATION THAT OUR SERVICE(S) WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY OR REPRESENTATION REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY CONDITION OR WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 25. REVOCATION. You agree that we may delete your domain name if the information that you provide to us or subsequently modify contains false or misleading information, or conceals or omits any information we would likely consider material to our decision to register your domain name or to continue to provide you domain name registration services. You agree that we may terminate immediately and without notice our service(s), including our domain name registration services, in the event that you use such service(s) for any improper purpose, as determined in our sole discretion. Furthermore, you agree that we may suspend, cancel or transfer your domain name in order to: (1) correct mistakes made by us or the registry in registering your chosen domain name, or (2) to resolve a dispute under the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, or the Dispute Policy. We will not refund any fees paid by you prior to termination of our services. 26. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to: (1) refuse to register your chosen domain name or register you for other Yoltek service(s); and (2) delete your domain name within the first thirty (30) calendar days from receipt of your payment for such services. In the event we delete your domain name within such thirty (30) calendar day period, we agree to refund any applicable fee(s) you have paid, minus any applicable administration fees. You agree that we shall not be liable to you for loss or damages that may result from our refusal to register your domain name, the deletion of your domain name, or our refusal to register you for other Yoltek service(s). 27. POWER OF ATTORNEY. You hereby constitute and appoint Yoltek as your true and lawful attorney to take any and all action(s) necessary or desirable to obtain, maintain, renew or cancel the registration of your chosen domain name, including, without limitation, any action required to add to, delete, update or correct any or all information regarding the domain name or to comply with or respond to any requests of the registrar received by Yoltek relating to the domain name. This power of attorney is granted to Yoltek, and being coupled with an interest, shall not be revocable by you for any reason prior to the termination of this agreement. 28. SEVERABILITY. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect. 29. ENTIRETY. You agree that this Agreement, the rules and policies published by us, the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, the Dispute Policy, and the privacy policy are the complete and exclusive agreement between you and us regarding our services. This Agreement, our rules and policies, the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, the Dispute Policy, and the privacy policy supersede all prior agreements, representations and understandings, whether established by custom, practice, policy or precedent. 30. NON-ASSIGNMENT. Your rights under this Agreement are not assignable. Any attempt by you to assign your rights shall render this Agreement voidable at our option. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, garnishment or otherwise, shall render this Agreement voidable at our option. 31. GOVERNING LAW. You agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Province of Ontario, Canada, excluding its conflict of laws rules. You and we each submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the courts of that Province. You agree that any action, suit or application will be brought and heard in Toronto, Canada. 32. AGREEMENT TO BE BOUND. By applying for the service(s) of Yoltek or an affiliate through our application process or by applying for and registering a domain name using the service(s) provided by Yoltek or its affiliates under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement, the CIRA Domain Name Dispute Resolution Policy and Rules, the ICANN UDRP, the Dispute Policy, and any pertinent rules or policies that are or may be published by Yoltek, CIRA, or ICANN. 33. NOTICES. All notices to be provided by either party to this Agreement to the other shall be in writing and shall be validly given if sent by e-mail, personal or courier delivery or by ordinary mail as follows: (1) to Yoltek, at Yoltek Communications Inc., Suite 219, 34 Eglinton Ave West, Toronto, Ontario, Canada M4R 2H6; and (2) to Client, at the e-mail and postal address provided by you as part of the application process for Yoltek service(s). Any notice sent by e-mail shall be deemed to have been received upon receipt; by personal or courier delivery on the date of delivery, and by post on the 5th calendar day after mailing. 34. INCORPORATION BY REFERENCE. All terms and conditions set forth below are incorporated by reference into this agreement, and apply as applicable, to your domain name(s) and any applicable Yoltek services purchased by you and you agree to be bound by them. Schedule A. Terms and Conditions for Yoltek E-mail Service The following terms and conditions of use and any amendments thereto (the “E-mail Terms”) apply to your access to, and use of, the Yoltek e-mail and related services offered by Yoltek (the “E-mail Service”). These E-mail Terms may be changed in the future without further notice, and your continued use of the E-mail Service following any such changes constitutes your acceptance of the new terms. These E-mail Terms do not alter in any way the non-conflicting terms or conditions of this Agreement or any other agreement you may have with Yoltek for products, services or otherwise. To the extent any of the E-mail Terms are in conflict or inconsistent with any other term or condition of the Agreement, these E-mail Terms shall govern to the extent of the conflict or inconsistency. 1. Privacy Policy In addition to the terms of the Yoltek privacy policy, you agree that Yoltek may access and disclose information about you or your use of the E-mail Service when Yoltek deems necessary or appropriate to comply with the law or legal process, to protect Yoltek's systems and clients, or to ensure the integrity and operation of Yoltek's business and systems. Such disclosure may include, without limitation, user profile information (e.g., name, e-mail address, etc.), IP address and traffic information, usage history, and posted content. Yoltek's right to disclose any such information shall govern over any terms of Yoltek's privacy policy. 2. Access Restriction & Password Security Yoltek reserves the right to deny in its sole discretion any user access to the E-mail Service or any portion thereof without notice. You are responsible for safeguarding the confidentiality of your password(s) and user name(s) issued to you by Yoltek, and for any use or misuse of your account or the E-mail Service resulting from any third party using a password or user name issued to you. 3. No “Spamming” Users shall not use the E-mail Service for chain letters, junk mail, “spamming” or any use of distribution lists to any person who has not given specific permission to be included in such a process. An e-mail advertisement which is (a) addressed to a recipient with whom the initiator does not have an existing business or personal relationship and (b) is not sent at the request of or with the express consent of the recipient to receive such communications from you (“spam” or “spamming”) is strictly prohibited by Yoltek. If any user uses the E-mail Service for spamming, Yoltek reserves the right to immediately terminate that user’s access to the E-mail Service and to seek appropriate legal recourse as necessary. If any user believes that others are using the E-mail Service for spam, please contact Yoltek at support@yoltek.com. 4. User Conduct Yoltek reserves the right, but does not assume the responsibility, to monitor or review user conduct on the E-mail Service. Use of the E-mail Service is subject to all applicable local, state, provincial, federal and international laws and regulations. You agree: (1) to comply with U.S. and Canadian law regarding the transmission of technical data exported from the United States or Canada through the E-mail Service; (2) not to use the E-mail Service for illegal purposes; and (3) not to interfere or disrupt networks connected to the E-mail Service. In using the service, you agree not to: (1) Harvest or otherwise collect information about others, including without limitation names and e-mail addresses, without their consent; (2) Transmit through the E-mail Service any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, sexually explicit, or otherwise objectionable material of any kind or nature; (3) Invade another’s privacy or violate rights of publicity or intellectual property rights (including but not limited to copyright, trademark and patent rights) while using the E-mail Service; (4) Transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, provincial, federal or international law or regulation; (5) Interfere with another User’s use and enjoyment of the E-mail Service or another entity’s use and enjoyment of similar services; (6) Advertise or offer to sell or buy any goods or services for any non-personal purpose; (7) Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs; (8) Interfere with or disrupt networks connected to the E-mail Service or violate the regulations, policies or procedures of such networks; (9) Attempt to gain unauthorized access to the E-mail Service, other accounts, computer systems or networks connected to the E-mail Service, through password mining or any other means; (10) Use or attempt to use another’s account, service or system without authorization from Yoltek, or create or use a false identity on this E-mail Service; or (11) Engage in any other conduct which, in Yoltek’s sole discretion, is considered unauthorized or objectionable. 5. Proprietary Rights You acknowledge and agree that any material, including but not limited to text, compilations, graphics, software, music, sound, photographs, video, or other material contained or distributed on or through the E-mail Service, by Yoltek, its advertisers or other third parties (“Content”), is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not use or distribute any Content received through the E-mail Service without the authorization of the content owner, except for your personal, non-exclusive use. You agree not to modify, copy, reproduce, republish, upload, post, transmit, sell or distribute Content available through the E-mail Service, including code and software, in violation of applicable copyright and other intellectual property laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE YOLTEK SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. YOU MAY NOT DECOMPILE, DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY TRADE SECRET CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER. You acknowledge that the Software, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the United States and Canada. You agree not to export or re-export the Software, directly or indirectly, to any countries that are subject to U.S. or Canadian export restrictions. 6. Trademarks Yoltek and the Yoltek logo are trademarks of Yoltek, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Yoltek. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Yoltek or its contractors or suppliers, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Yoltek. All other trademarks, registered trademarks, product names and company names or logos mentioned herein are the property of their respective owners. 7. Submissions You agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, provided by you in the form of e-mail or submissions to Yoltek, or postings on this E-mail Service, are non-confidential and shall become the sole property of Yoltek. Yoltek shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you. The submission of any materials to Yoltek, including the posting of materials to any forum or interactive area, irrevocably waives any and all “moral rights” in such materials, including the rights of paternity and integrity. 8. Linking You may not use, frame or utilize framing techniques to enclose any Yoltek trademark, logo or other proprietary information, including the images found at this E-mail Service, the content of any text, or the layout/design of any page or form contained on a page, without Yoltek’s express written consent. Further, you may not use any meta tags or any other “hidden text” utilizing any Yoltek name, trademark, or product name without Yoltek’s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Yoltek or any third party. Yoltek makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of Websites accessible by hyperlink from this E-mail Service, or Websites linking to this E-mail Service. The linked sites are not under the control of Yoltek, and Yoltek is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Yoltek is providing these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement, or adoption by or between Yoltek and any third party. 9. Third Party Content & E-mail Services Yoltek may provide links to Web pages and content of third parties (“Third Party Content”) as a service to those interested in this information. Yoltek does not monitor, and has no control over, any Third Party Content or third party Websites. Yoltek does not endorse or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness. Yoltek does not represent or warrant the accuracy of any information contained therein, and undertakes no responsibility to update or review any Third Party Content. When leaving the Yoltek site, you should be aware that Yoltek’s terms and policies no longer govern, and, therefore, you should review the applicable terms and policies, including privacy and data gathering practices, of that site. Your use of these links and Third Party Content contained therein is at your sole risk. 10. Copyright Policy & Copyright Agent Yoltek may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, Yoltek may terminate the accounts of users who appear to infringe the copyright or other intellectual property rights of others. If you believe that Yoltek or any user of our site has infringed your copyright in any material way, please notify Yoltek, and provide the following information: (1) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest. (2) An identification of the copyrighted work claimed to have been infringed. (3) An identification of the material that you claim is infringing so that we may locate it on the E-mail Service. (4) Your address, telephone number, and e-mail address. (5) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law. (6) A statement by you that the above information in your Notice is accurate, made under penalty of perjury, and that you are authorized to act on behalf of the owner of the copyright interest involved. 11. No Resale You agree not to resell or make any commercial use of the E-mail Service without Yoltek’s express written consent. 12. Termination Notwithstanding any of these terms and conditions of use, Yoltek reserves the right, without notice and in its sole discretion, to terminate your use of this E-mail Service, to change or eliminate any of the services we provide, and to block or prevent future access to and use of this E-mail Service. If your account is terminated for violation of these E-mail Terms, you will not be entitled to any refunds. Should you object to these E-mail Terms or become dissatisfied with the E-mail Service in any way, your only recourse is to immediately discontinue your use of the E-mail Service and terminate your account. 13. Severability If any provision of these terms and conditions shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions. The terms of this section survive any termination of the E-mail Terms. 14. Modification & Amendments Yoltek reserves the right to amend at any time any policies governing this E-mail Service, including these E-mail Terms, by posting the amended terms and providing notice of such amendments. The amended terms shall be effective upon posting. If you do not accept the amended terms, you should cease using this E-mail Service. Schedule B. Terms and Conditions Applicable to all Website and Hosting Services 1. Definitions. For purposes of this Schedule, the following capitalized terms shall have the meanings ascribed to them below: a. "Yoltek Template Website" means any pre-designed, customizable Yoltek website template licensed by Yoltek to end users. b. "Web Hosting Service" means the web hosting services provided by Yoltek as described on the Yoltek website located at www.yoltek.com. c. "Subscription Service" means any of the Yoltek subscription service packages that are available for purchase by end users on an annual basis, for an annual fee, all as described on the Yoltek website located at www.yoltek.com. 2. Payment. In addition to the payment terms in Section 4 of the Agreement, the following provisions shall also apply solely with respect to the Subscription Service: a. Yoltek, in its sole discretion, shall determine the prices it will charge for the Subscription Service, and the terms and conditions applicable to the same, and Yoltek may, upon providing thirty (30) days' notice to you, amend such pricing and/or terms and conditions. If you do not agree to the change(s), you may terminate your Subscription Service as provided in Section 5 of this Schedule within that thirty (30) days; otherwise all such changes shall thereafter be effective with respect to your account. b. Unless Yoltek agrees to another payment method, payments for the Subscription Service will be by cheque. 3. Conduct. You agree to abide by the terms and conditions set forth herein and be bound by the applicable provisions of any applicable Yoltek Acceptable Use Policy and other applicable Yoltek policies and procedures, incorporated herein and made part of this Agreement by reference, in connection with your use of the services described in this Schedule. You are responsible for ensuring that your website conforms to all local, provincial, state, federal and international laws. Further, you are responsible for ensuring the legal copyright to any images, audio files, text or other website elements that are not provided by Yoltek. You warrant that the website being hosted by Yoltek will not be used in connection with any illegal activity and that it will not conflict with the legal rights of a third party or a third party's trademarks or trade name. 4. Yoltek's Rights. Yoltek explicitly reserves the right and sole
discretion to: suspend any website (including indefinite suspension)
without notice for non-payment of fees due hereunder; censor any
website hosted that, in Yoltek’s sole discretion, is deemed
inappropriate; review every Web Hosting account for excessive space
and bandwidth utilization and to terminate or apply additional fees
to those accounts that exceed allowed levels; modify its pricing
through e-mail notification; terminate your Subscription Service
for unsolicited, commercial e-mailing (i.e., SPAM); illegal access
to other computers or networks (i.e., hacking); distribution of
Internet viruses or similar destructive activities; non-payment
of Web Hosting fees; and other activities whether lawful or unlawful
that Yoltek determines to be harmful to its other clients, operations,
or reputation; terminate Your Subscription Service if the contents
of your website result in, or are the subject of, legal action or
threatened legal action, against Yoltek or any of its affiliates
or partners, without consideration for whether such legal action
or threatened legal action is eventually determined to be with or
without merit. 5. Cancellation. You may cancel your Subscription Service at any time. To cancel your Subscription Service you must submit your written notice of cancellation to Yoltek (as provided herein) and include the following information: (i) Your Yoltek Account Number; (ii) your Yoltek Website Web address; and (iii) your reason for requesting cancellation. In the absence of such written notice of cancellation, Yoltek will automatically continue the Subscription Service indefinitely and Yoltek will bill for the Subscription Service at Yoltek’s then current rates. 6. Term and Termination. a. Term. Your Subscription Service shall be on an annual basis for successive annual periods, unless either party notifies the other of termination in accordance with this Agreement. b. Notice of Service Cancellation by You. Any termination of your Subscription Service must be in accordance with our cancellation policy. Unless terminated earlier as provided herein, this Schedule, and the Agreement (if you have no other services with Yoltek) will be terminated on the day in which your cancellation notice was received and processed by Yoltek. 7. Website Content. a. Copyright. You agree to only provide content that is properly licensed for use on your website. You must either be the copyright holder, or you must license the content for use on your website. b. Excessive Content. In Yoltek's sole discretion, if the content you wish to place on any of the web pages on your website is excessive in quantity or complexity, Yoltek may charge additional fees to place the content on your website. Yoltek will inform you if this is the case. 8. Hosting Uptime Guarantee. Yoltek offers an uptime guarantee for the Web Hosting Service of 99.9% of available time. In a given calendar month, if Yoltek fails to maintain 99.9% availability of your website during that calendar month, you may contact Yoltek and request a $5 credit for that calendar month. The credit may be used only for the purchase of further products and services from Yoltek, and is exclusive of any applicable taxes. The credit does not apply to service interruptions caused by: (i) periodic scheduled maintenance or repairs Yoltek may undertake from time to time; (ii) errors caused by you from custom scripting or coding; (iii) outages that do not affect the appearance of the website but merely affect access to the website such as FTP and e-mail; and (iv) causes beyond the control of Yoltek or that are not reasonably foreseeable by Yoltek. Total uptime shall be solely determined by Yoltek and shall be calculated on a monthly basis.
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