LAST UPDATE : December 31, 2012
Carefully read the following terms and conditions of this agreement. By accessing and using the web hosting and electronic commerce services and associated software of QuickSilk Inc. (“QuickSilk”), you (“Customer”) indicate the acceptance of the following terms and conditions and you agree to be bound by them. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE QUICKSILK WEB HOSTING AND ELECTRONIC COMMERCE SERVICES or associated software and promptly return the complete package including the software to QuickSilk.
This agreement constitutes the complete and exclusive statement of the agreement between you and QuickSilk with respect to the QuickSilk web hosting and electronic commerce services and associated software and SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, oral or written, and any other communications relating to the subject matter of this agreement.
Now, therefore, in consideration of the mutual covenants set forth herein, QuickSilk and Customer agree as follows:
1. Order Acceptance, Payment.
All orders are subject to acceptance by QuickSilk. An order will be deemed accepted by QuickSilk when QuickSilk sends written confirmation of the order to Customer.
QuickSilk shall charge Customer’s credit card for the applicable set-up fees and monthly or annual fees according to the Web Hosting Package(s) selected by Customer and provided by QuickSilk. Such fees and charges shall include, without limitation, the fees for connectivity, design services, and charges by any and all third parties whose materials are included as part of the Package(s). QuickSilk reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to Customer. Customer must provide QuickSilk with a valid credit card number to which QuickSilk will automatically charge all QuickSilk fees as they become due. All monthly or annual fees and set-up fees shall be due in advance of the billing period incurred and all additional charges shall be due at the end of the month in which such charges are incurred. Except as provided in Section 3, the set-up fees are nonrefundable and QuickSilk does not issue pro rata refunds for fees paid in advance. If payment by Customer’s credit card is denied, or Customer’s charge is returned to QuickSilk for any reason, including charge back or Customer otherwise fails to make any payments owing to QuickSilk, QuickSilk may, at QuickSilk's sole discretion, suspend or terminate access to the QuickSilk Services and/or terminate this Agreement. Customer’s right to use the QuickSilk Services are subject to any limits established by QuickSilk or by the issuer of Customer’s credit card. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance, which is more than thirty (30) days overdue. Customer shall be responsible for any and all taxes related to this Agreement. QuickSilk may charge you for certain taxes and other applicable fees.
2. QuickSilk Services.
A. During the term of this Agreement, QuickSilk shall provide software services to Customer according to the Package(s) accepted by Customer (the “QuickSilk Services”). “Package” means one of QuickSilk business and/or electronic commerce service offerings, as can be found on QuickSilk's Web site at http://www.quicksilk.com. The specific Package to be provided to Customer shall be established by correspondence between QuickSilk and Customer. Such Package shall be deemed incorporated by reference into this Agreement, as if fully set forth herein. QuickSilk and Customer shall retain copies of such Package(s) for future reference.
B. At Customer’s request, QuickSilk will acquire an Internet Second-Level Domain Name (“Domain Name”), from the Contracted Registrar on behalf of Customer. Customer’s request for and/or acceptance of a Domain Name obtained by QuickSilk shall in all cases constitute Customer’s waiver of any and all claims which Customer may have, or which may later arise, against QuickSilk or its third party providers, for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the Domain Name. Any cost incurred by QuickSilk to obtain and/or maintain the Domain Name on behalf of Customer shall be charged to Customer by QuickSilk. Request for and acceptance of a domain name requires QuickSilk to supply the domain name to the Contracted Registrar, which in turns supplies the Domain Name to third parties. QuickSilk will be the sole billing and technical contact for the Domain Name.
3. Limited 30-Day Money-Back Guarantee.
QuickSilk offers a limited, one-time, thirty (30) day money back guarantee on Web Hosting and e-Commerce Hosting suites. If Customer is not completely satisfied with the QuickSilk Services provided under such Package within the first thirty (30) days, Customer may cancel this Agreement by notifying QuickSilk by calling the telephone number listed in Section 8C or writing to the address listed in Section 8C. In such case, Customer will receive a full refund of any amounts paid pursuant to this Agreement, except for set-up fees and excess network usage fees, which are nonrefundable. After the initial thirty (30) day period, the QuickSilk Services shall be deemed accepted for all purposes, provided no written claim has been received by QuickSilk within such thirty (30) day period.
4.Third Party Providers.
In order to access and use the QuickSilk Services, Customer may be required to subscribe to other QuickSilk services offered under separate agreements, including, but not limited to, the QuickSilk Internet Access Agreement. This Agreement does not in any way modify the terms of such agreements. In addition, Customer acknowledges that in order to access certain of the QuickSilk Services, Customer may have to agree to and execute agreements with third party providers who may charge Customer fees and charges which are in addition to the fees and charges imposed by QuickSilk.
5. Rules and Regulations.
From time to time QuickSilk may impose reasonable rules and regulations regarding the use of the QuickSilk Services. Such rules and regulations are called acceptable use policies and are posted on QuickSilk’s web site at http://www.quicksilk.com/legal. All such acceptable use policies are incorporated by reference into this Agreement as if fully set forth herein.
6. License Grant.
During the term of this Agreement, QuickSilk grants to Customer a non-exclusive, personal, non-transferable license to access and use the QuickSilk Services solely on and as part of QuickSilk’s World Wide Web site and servers. QuickSilk may modify the QuickSilk Services at any time for any reason and may provide modified versions of the QuickSilk Services to Customer.
7. Intellectual Property Rights.
Customer acknowledges and agrees that the QuickSilk Services constitute confidential and proprietary information of QuickSilk and its licensors and embodies trade secrets and intellectual property of QuickSilk and its licensors protected under Canadian and United States copyright and other laws and international treaty provisions. Customer further acknowledges that all right, title, and interest in and to all parts of the QuickSilk Services, including, without limitation, associated intellectual property rights, are and shall remain with QuickSilk and its licensors. Customer shall not, and shall cause its employees and agents not to, disclose or transfer any portion of the QuickSilk Services to any third party. Customer further agrees not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the QuickSilk Services. Customer hereby acknowledges that, if QuickSilk at any time or from time to time performs any customizations or modifications to QuickSilk Services, all rights and interests to such customizations or modifications shall be the sole property of QuickSilk.
8. Term and Termination.
This Agreement shall have an initial term of one (1) month or (1) year, depending on the plan, and shall thereafter automatically renew for successive one (1) month or one (1) year periods. This Agreement and Customer’s access to the QuickSilk Services shall terminate as follows: (i) Either party may terminate upon thirty (30) days prior notice; (ii) QuickSilk may immediately and without prior notice terminate upon a violation by Customer of QuickSilk’s acceptable use policies; (iii) QuickSilk may terminate immediately and without prior notice in accordance with Section 1; and (iv) QuickSilk may terminate immediately if, after 15 days prior notice to Customer, Customer has failed to correct any breach of this Agreement. Refunds are not provided for partial periods.
Upon any termination in accordance with Section 8(A)(i), QuickSilk shall permit Customer forty-eight (48) hours to download or otherwise copy any of Customer’s information and data residing on QuickSilk’s facilities prior to removing such information and data from QuickSilk’s facilities. Upon termination by QuickSilk under Sections 8(B)(ii), (iii) or (iv), QuickSilk may immediately remove all of Customer’s data and information from QuickSilk’s facilities and Customer shall have no right to copy or download such data or information, and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of QuickSilk. In cases where Customer’s account has been cancelled, and Customer is requesting reactivation, QuickSilk, at it’s option, may reactivate the same account, only if the account had been cancelled less than sixty (60) days prior. After sixty (60) days, Customer will be required to set up a new account.
To cancel a QuickSilk web hosting, domain name services or electronic commerce services, Customer should call QuickSilk at 613-270-1478 or send a request via mail to QuickSilk, 27 Pentland Cres, Suite 202, Ottawa, ON , Canada, K2K 1V6, Attention: Web Hosting Cancellations. For assurance of delivery, QuickSilk recommends that requests for cancellation are sent via certified mail.
Sections 1, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement.
9. Exclusion of Warranties.
QuickSilk PROVIDES THE QuickSilk SERVICE ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
While QuickSilk makes reasonable efforts to maintain the QuickSilk service, many factors are not within QuickSilk’s control. Therefore, QuickSilk does not warrant, and is not responsible for (even if caused by the negligence of QuickSilk) any loss of data, delays, non-delivery or misdelivery of information, lack of access, slows response time, or service interruptions or errors. Loss, delay or non-delivery of data can be due to but not limited to QuickSilk’s own negligence, viruses or other third parties. Customer’s data is defined as any data held by QuickSilk and includes account information, web hosting data, email and domain name services. This disclaimer and waiver shall apply equally to any and all third party providers. QuickSilk provides no warranty to customer regarding the accuracy of usage statistics, which QuickSilk may provide in its discretion. Further, no advice or information given by an QuickSilk representative shall create a warranty or serve as an amendment to this agreement.
QuickSilk has the right to change prices, or add or delete product features of any existing product or service. The right to change products or services extends to any software supporting a product or service. QuickSilk reserves the right to change prices or material features at any time upon 30 days prior notice. QuickSilk reserves the right to institute new fees or new material features at any time upon 30 days prior notice. QuickSilk has the right to discontinue products or services and the right to remove or reassign IP addresses of a customer’s web site. QuickSilk also has the right to deactivate a customer’s service with a thirty (30) day notice. Except for certain products and services specifically identified as being offered by QuickSilk, QuickSilk does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you. QuickSilk has no control over and accepts no responsibility for such materials. You assume full responsibility and risk for use of the services and the Internet and are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet.
10. Limitation of Liability and Damages.
THE TOTAL AGGREGATE LIABILITY OF QuickSilk TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID TO QuickSilk BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH QuickSilk IS LIABLE TO CUSTOMER. IN NO EVENT SHALL QuickSilk BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT, TORT, OR OTHERWISE AND WHETHER OR NOT QuickSilk HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer acknowledges that by reason of its relationship with QuickSilk, it may have access to certain information and materials relating to QuickSilk’s business, customers, software technology and marketing which QuickSilk treats as confidential (collectively “Confidential Information”). Customer shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of QuickSilk; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
Customer shall indemnify and hold QuickSilk harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney’s fees and expenses that Company may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement (including reasonable attorney’s fees) and for any act or omission of Customer or its clients which are in any way related to the QuickSilk Service.
13. Export Control.
Customer agrees not to export or re-export any portion of the QuickSilk Service outside of the United States or Canada. Customer further agrees to comply with all United States, Canadian and other applicable laws, rules and regulations relating to the export, re-export or transshipment of the QuickSilk Services.
14. Force Majeure.
Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
Customer may not assign its rights or delegate any of its duties under this Agreement without the prior written consent of QuickSilk, and any attempted assignment or delegation without such consent shall be null and void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of partners or joint ventures. QuickSilk may subcontract any work, obligations or other performance required of QuickSilk under this Agreement without consent of Customer. Other than the termination of this agreement, all notices provided hereunder sent by email, mail or certified mail to QuickSilk, will be effective upon transmission. QuickSilk has the right to amend the Agreement from time to time, and will do so by posting the new Agreement on the QuickSilk web site under the Terms and Conditions at the Policies and Agreements page.
This Agreement is governed by law of the Province of Ontario, Canada without regard to conflict of law provisions. Any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration, and administered by the Canadian Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Ontario law and will be held in Ottawa, Ontario, Canada. The arbitrator will be an expert in the field of Internet services. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. There shall be no class action arbitration pursuant to this agreement.