- CHARGES AND PAYMENT
- SERVICE ADDRESS
- TUCOWS CONTRACT REQUIREMENTS
- CUSTOMER’S REPRESENTATIONS AND WARRANTIES
- USERIDS AND CUSTOMER PASSWORDS
- SOFTWARE AND DOCUMENTATION SUPPLIED
- LIMITATION OF LIABILITY
- ELECTRONIC NATURE OF TERMS AND CONDITIONS
- GENERAL PROVISIONS
The Customer specified in the Domain Name Registration and Management Application, or in any amendments thereto (the “Application”) has requested, and Bell MTS, a division of Bell Canada (“Bell MTS”) has agreed, to provide the service(s) described in the Application (the “Services”) on the Terms and Conditions set out herein. The provision of some or all of the Services to a Customer is subject to availability and to these Terms and Conditions.
These Terms and Conditions shall come into effect on the date specified in the Application (the “Effective Date”) and, subject to the provisions of these Terms and Conditions, shall remain in effect for the term specified in the Application (the “Term”). Following the expiration of the Term, the Services shall be renewed automatically for a period equal to one (1) year, unless either party terminates the Services by providing at least thirty (30) days written notice prior to the end of the then current term. Where a Customer has transferred a domain name registration to Bell MTS from another service provider, the term in respect of such a registration shall be the balance remaining in the existing term plus one year, pursuant to the ICANN Change in Registrar policy.
Customer agrees to pay the charges specified in the Application (the “Charges”), together with all applicable taxes. All Charges shall be billed to the Customer in advance and shall be due and payable within thirty (30) days after the date of the billing statement. All Charges not paid when due shall bear interest at the rate specified in Bell MTS’s billing statements from time to time. Upon termination of the Services, all Charges and any interest shall become immediately due and payable. The Customer agrees not to deduct or set-off any amount from the Charges due to Bell MTS for the Services. Charges that recur on an annual or monthly basis are fixed for the first year of the term specified in the Application, but Bell MTS reserves the right to adjust the Charges thereafter upon thirty (30) days prior written notice.
All facilities, electrical requirements and any other equipment or facilities required in connection with the Services shall meet the specifications and requirements prescribed by Bell MTS, and shall be arranged or provided by the Customer at its own expense. Should the Customer request Bell MTS to relocate the Services to a new service address, such relocation shall be subject to availability and shall be performed by Bell MTS at the Customer’s expense at Bell MTS’s prevailing rates and terms including such service charges as may be applicable. Bell MTS shall have no obligation to relocate the Services to a service address outside the Province of Manitoba.
Bell MTS is a registration service provider for Tucows Inc. (“Tucows”) and has entered into an agreement with Tucows respecting all domain registrations (the “Service Provider Agreement”). Bell MTS is required by the Service Provider Agreement to have the Customer agree to and be bound by Tucows’ TLD Registration Agreement attached as Exhibit A (the “Exhibit A Agreement”). By submitting the Application, the Customer acknowledges the Exhibit A Agreement, certifies to Bell MTS that Customer has reviewed and understands Exhibit A Agreement, and agrees to be bound by the terms of the Exhibit A Agreement.
The Customer represents and warrants to Bell MTS that it:
(b) shall not allow any third party to use or operate any domain name registration registered in the name of the Customer and shall not apply to Bell MTS to register any domain name as agent for, or on behalf of, any third party in any manner whatsoever, including without limiting the generality of the foregoing, for purposes of lending, leasing, licensing or otherwise granting rights in such domain name registration to any third party for monetary or non-monetary consideration unless such third party agrees to be bound by these Terms and Conditions and
(c) shall not use the Services for any purpose contrary to the laws of any government having jurisdiction over Bell MTS or the Customer.
The Customer shall not make the UserIDs provided in connection with the Services or Customer passwords available to any third party and shall be solely responsible for maintaining the security of the UserIDs and Customer passwords. The Customer shall be responsible for all use of the Services by anyone using the UserIDs and/or Customer passwords. If the Customer shall become aware, or suspects that any unauthorized person has obtained or attempted access to the Customer’s account, programs, or data, then the Customer shall forthwith notify Bell MTS and change the Customer password(s). Customer acknowledges that the fees charged by Bell MTS reflect the allocation of risk herein and the limited recourse to Bell MTS provided for in this Agreement. Bell MTS will not assume any responsibility for acts or omissions of Customer or of any individual who accesses the Services using Customer’s passwords and UserIDs. In addition, Customer acknowledges that if it allows any person under the age of eighteen (18) to use the Services, Customer shall bear the sole responsibility and liability for, and shall indemnify Bell MTS against, any claims, actions or losses that arise, directly or indirectly, from such use. As between Bell MTS and Customer, Customer is better able to put in place physical and procedural impediments to the inappropriate use of and to supervise use of its account, UserIDs Customer passwords and the Services. Protection of the UserIDs and Customer passwords shall be the Customer’s responsibility.
Customer shall comply with all current and future policies of Bell MTS related to the Services. Bell MTS may post notice of such policies at www.bellmts.ca , or may send notice of such policies by e-mail or regular mail.
Any software or documentation supplied by Bell MTS or its agents to Customer with respect to the Services shall remain the property of Bell MTS or its agents, as applicable. Customer shall take appropriate steps to protect same against loss or damage. The use by Customer of any such software and documentation shall be subject to such terms set out in the license agreement included with the software and documentation.
Bell MTS, in its sole discretion, may suspend the Customer’s access to some or all of the Services or terminate the Services without notice and without incurring any liability if:
(b) the Customer fails to carry out or perform any covenants, undertakings or obligations imposed on Customer by this Agreement, as determined by Bell MTS in its sole and absolute discretion;
(c) the Customer makes an assignment for the benefit of creditors or takes any other action for the benefit of creditors, becomes bankrupt or insolvent, or takes the benefit of, or becomes subject to, any legislation in force relating to bankruptcy or insolvency;
(d) Bell MTS’s status as a Tucows registrar is revoked;
(e) the Customer’s agreement with Tucows is suspended; or
(f) with respect to any one domain name registrations, ICANN ceases to operate the registry for any top level domains and Bell MTS is unable to make suitable arrangements with the party operating such registry in ICANN’s place.
In the event a domain name registration has been auto renewed, Bell MTS may only suspend or delete the domain name during the 45 day grace period following the date the domain name auto-renewed (the “Auto Renew Grace Period”). Any such suspension shall only be in place during the Auto Renew Grace Period and shall be lifted at the end of this period. This suspension or deletion of the domain name cannot occur in the event the Customer is in default for payment of any other Service (including hosting). Notwithstanding the foregoing, Bell MTS must delete a domain name during the Auto Renew Grace Period if requested by the registrant of the domain name.
The Customer may terminate all or any part of the Services upon providing thirty (30) days prior written notice to Bell MTS, provided however that Bell MTS shall not be required to refund the Charges paid by the Customer in the event of termination for any of the reasons stated in this section 10, nor in respect of any Charges in respect of domain registrations.
Customer hereby acknowledges that Bell MTS may retain and use any information, comments or ideas conveyed by Customer relating to the Services (including any products and services made available on the Services). This information may be used by Bell MTS to provide Customer with better service.
11.1 LIMITATION ON WARRANTIES AND CONDITIONS. LIMITATION ON WARRANTIES AND CONDITIONS. Bell MTS makes no representation, warranty or condition, whether oral or written, express or implied, statutory or otherwise with respect to the Services, including, without limitation, any warranty or condition of quality or fitness for a particular purpose or non-infringement, or with respect to functionality, merchantable quality, freedom from bugs or viruses, compatibility or interoperability of Bell MTS’s facilities.
11.2 USE OF DOMAIN NAMES. Customer agrees that Bell MTS shall not be responsible for the use of or right to use any domain name and that Bell MTS shall not be responsible in any way whatsoever for any conflict or dispute with or any claim against the Customer including one relating to a registered or unregistered trade-mark, a corporate, business or other trade name, rights relating to a name or other identifying indicium of an individual or any other intellectual property rights of a third party, or relating to defamation of or unlawful discrimination with respect to any other person. The Customer acknowledges and agrees that the registration of a domain name does not create any proprietary right for the Customer or any other person in any name used as a domain name or in any domain name registration, and the entry of a domain name in the “whois” database, or in any other registry shall not be construed as evidence of ownership of the registered domain name. The Customer shall not in any way transfer or purport to transfer a proprietary right in any domain name registration or grant or purport to grant as security or in any other manner encumber or purport to encumber any domain name registration provided hereunder.
11.3 LIMITATION OF LIABILITY. BELL MTS’s aggregate liability to the Customer, including for all breaches by Bell MTS of this agreement, shall be limited to the amount of fees paid or payable to Bell MTS under this Agreement, regardless of the form of action including breach of contract (including fundamental breach or otherwise), strict liability, tort, (including negligence), any act or omission of Bell MTS or its representatives or under any other legal or equitable theory, even if Bell MTS had knowledge of or could have foreseen the possibility of such damages.
11.4 ADDITIONAL LIMITATIONS OF LIABILITY. Without limiting the generality of section 11.3, in no event, whether as a result of breach of contract (including fundamental breach or otherwise), strict liability, tort (including negligence), any act or omission of Bell MTS or its representatives or any other legal or equitable theory even if Bell MTS had knowledge of or could have foreseen the possibility of damages, shall the Customer pursue any claim against Bell MTS, and in no event shall Bell MTS or its directors, officers, employees, agents and representatives be liable to the Customer or any other party for any loss, damage or expense (including, without limitation, any special, indirect, incidental, exemplary, punitive or consequential damages or for economic loss or damages resulting from loss of use, lost profits, lost business revenue or third party damages) arising directly or indirectly from these Terms and Conditions, the Services provided hereunder, the Customer’s use or intended use of the Service, or in any way resulting from or connected with:
(b) any data non-delivery or data misdelivery;
(c) any unauthorized use or misuse of the Customer number or password provided to the Customer by any registry authority;
(d) any error, omission or misstatement in any information or service provided under these Terms and Conditions;
(e) the deletion of or failure to store email messages;
(f) a computer bug or virus or other system malfunction;
(g) Bell MTS’s failure or refusal to register, renew, transfer, maintain, modify or cancel a domain name registration or Bell MTS’s registration, renewal, transfer, maintenance, modification or cancellation of a domain name registration;
(h) the processing by Bell MTS of any application for the registration of a domain name or any other application or request, Bell MTS’s processing of any authorized or unauthorized changes to the Customer’s information;
(i) the application of Tucows’ dispute resolution procedures or policies or the compliance with any order, ruling, decision or judgment made thereunder or by any court, tribunal, board, administrative body, commission or arbitrator and any actions taken in consequence thereof; or
(j) the use of any domain name in the “whois” database or any other registry and any conflict or dispute with or any claim against the Customer, including one relating to:
i. registered or unregistered trade-marks;
ii. business names, partnership names, corporate names and other trade names;
iii. names or indicia of individuals or groups or individuals;
iv. any other intellectual property rights;
v. defamation of any person; or
vi. unlawful discrimination with respect to any person.
(k) any breach by Bell MTS of its obligations under these Terms and Conditions or any other agreement between Bell MTS and the Customer, or by Bell MTS under the Service Provider Agreement;
regardless of the form of action including breach of contract (including fundamental breach or otherwise), strict liability, tort, (including negligence), any act or omission of Bell MTS or its representatives or under any other legal or equitable theory, even if Bell MTS had knowledge of or could have foreseen the possibility of such damages.
The Customer shall be solely responsible and liable for, and agrees to indemnify and save Bell MTS and its contractors, agents, employees, officers, directors, affiliates and assigns harmless from and against any and all damages, liabilities, obligations, losses, claims, demands, actions, causes of action, lawsuits, penalties, costs and expenses (including, without limitation, reasonable legal and other related costs) arising out of or in any way connected with:
(b) any breach of or non-fulfillment of any covenant or agreement on the part of the Customer under the Customer’s Agreement with Tucows or any other registry authority; or
(c) any incorrectness in or breach of any representation or warranty of the Customer;
(d) the violation by the Customer of any intellectual property or other right of any Person and any defamation of or unlawful discrimination against any Person or any violation of any of the rules and procedures relating to the Services provided; or
(e) the actions or omissions of the Customer;
including, without limitation, all losses, damages, expenses and costs incurred by Bell MTS in attempting to enforce any provision of these Terms and Conditions, or in recovering any charges or any damages for breach of any covenant, term or condition of these Terms and Conditions. All remedies conferred upon Bell MTS shall be deemed to be cumulative and no one is exclusive of the other, or any other remedy conferred by law.
Any and all notices to be provided by one party to the other shall be sufficiently given if personally served or sent by mail, e-mail or facsimile and with respect to the Customer sent or addressed as specified by the Customer on the Application and with respect to Bell MTS, sent or addressed to P.O. Box 6666, 333 Main Street, Winnipeg, Manitoba, R3C 3V6, Attention: Internet Customer Service, Facsimile No. 204-784-6043 , E-mail: MTSInternetServices@bellmts.ca. Any such notices, if delivered personally, shall be deemed to have been received the same day; if sent by mail or e-mail, shall be deemed to have been received three (3) business days after the date of mailing; if sent by facsimile, shall be deemed to have been received on the next business day following the date of transmission.
The Customer acknowledges that Bell MTS collects, uses and discloses Personal Information, for the purposes identified in the Bell MTS Privacy Code. These purposes are:
b) to understand Customer needs;
c) to develop, enhance, market or provide products and services;
d) to manage and develop Bell MTS’s business and operations, including personnel and employment matters; and
e) to meet legal and regulatory requirements;
The Customer hereby consents to Bell MTS collecting, using and disclosing Customer’s Personal Information in accordance with the Bell MTS Privacy Code and for the purposes set forth in section 7 of these Terms and Conditions. The entire Bell MTS Privacy Code may be viewed on Bell MTS’s website at www.bellmts.ca/privacy or will be provided upon request.
Any discretion, option, decision, or opinion by Bell MTS shall be sufficiently exercised or formed if exercised or formed by or subsequently ratified by Bell MTS’s system administrator or any other person or persons designated by Bell MTS’s directors.
Should any competent regulatory authority determine that the Services must be regulated, then in such case, the parties shall observe the terms and conditions imposed by the regulatory authority, including any change to the rates set out herein. If, as a result of regulation, the rates set out herein are increased, the Customer may terminate the Services without penalty or termination charge at any time following the effective date of such rate increase, upon giving thirty (30) days’ notice of termination to Bell MTS.
Bell MTS may amend these Terms and Conditions at any time by posting the amended Terms and Conditions on the Bell MTS Domain Name Registration Terms and Conditions page. The amended Terms and Conditions are effective thirty (30) days from the date of posting. Customer’s continued use of the Services after posting constitutes acceptance of the amended Terms and Conditions. Bell MTS may, but shall not be obligated to, notify the Customer via email of the amended Terms and Conditions. In addition, Bell MTS reserves the right to amend these Terms and Conditions immediately should such action be required due to an amendment of the Service Provider Agreement with Tucows.
By using the Services, Customer expressly consents to these Terms and Conditions applying to the Service without the need for a signature by either Customer or Bell MTS. Both Bell MTS and Customer agree that a printed version of these Terms and Conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records generated and maintained in printed form by Bell MTS.
The Customer shall not directly or indirectly assign the Customer’s rights and obligations hereunder except with the prior written consent of Bell MTS. Bell MTS may assign all or part of its rights and obligations hereunder without the consent of the Customer. These Terms and Conditions shall be binding upon, and shall enure to the benefit of, the parties and their respective successors and permitted assigns. These Terms and Conditions shall be governed by, and interpreted in accordance with, the laws of Manitoba and the laws of Canada applicable therein. Bell MTS shall not be responsible for the performance of, or deemed to be in default of, any obligation or provision of these Terms and Conditions where delayed or hindered by labour disruptions, casualties, civil disturbances, acts of civil or military authorities, accidents, fires, acts of God, natural disasters or other catastrophes or events beyond Bell MTS’s control. Any provision of these Terms and Conditions that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions of these Terms and Conditions. No failure by Bell MTS to exercise any right under these Terms and Conditions or to insist upon full compliance by the Customer with its obligations under these Terms and Conditions will constitute a waiver of any provision of these Terms and Conditions. Subject to section 10 above, these Terms and Conditions cancel, replace and supercede as of the Effective Date all existing agreements and understandings, written or oral, between the parties relating to the Services. The headings and sub-headings given to portions of these Terms and Conditions are intended for reference only and shall not affect the construction or interpretation of these Terms and Conditions. If there is a conflict between the Terms and Conditions set forth in these Terms and Conditions, and Exhibit A, the provisions of these Terms and Conditions shall prevail as between Bell MTS and the Customer, and the provisions of Exhibit A shall prevail as between the Customer and Tucows.
The following is a glossary of terms used in these Terms and Conditions:
“Application” means the Application for Domain Name Registration and Management Services submitted by the Customer to Bell MTS.
“Customer” means the person who submitted the Application to Bell MTS and who is ultimately responsible for all activities with respect to use of the Services.
“Personal Information” means information about an identifiable individual including, but not limited to, name, physical address, e-mail address, birth date, gender and such other similar information as may be appropriate or required by specific circumstances. It does not include the name, title, business address or telephone number of an employee of an organization.
“Exhibit A Agreement” means the Agreement between the Customer and Tucows set out in Exhibit A.
“Services” means the domain name registration and management services provided by Bell MTS to the Customer pursuant to the Application and these Terms and Conditions.
“Service Provider Agreement” means the agreement between Bell MTS and Tucows pursuant to which Bell MTS is authorized to provide domain name registration services in respect of domain extensions.
“Terms and Conditions” means these Terms and Conditions and the attached Exhibit A as it may be amended from time to time by Bell MTS or Tucows, as applicable.
“Tucows” means Tucows Inc. or any successor thereto, the company that provides Internet domain name registration services for second level domain names within the top level domains.