For your protection and ours, we have established the general terms and conditions of use (“TERMS AND CONDITIONS FOR THE CREATION OF THE INTERNET SITE”) that also apply to any other Code Mountain Inc. property that you may consult from time to time. Your acceptance of the TERMS AND CONDITIONS FOR THE CREATION OF THE INTERNET SITE also applies to any other site and affiliated companies offered by Code Mountain Inc. with the necessary adjustments.
Code Mountain Inc. or one of its divisions (“smbCoach”) sells to the customer, who purchases them, the services (the “Services”) whose description and fees, monthly, annually or flat-rate (the “Fees”), appear on the invoice (the “Contract”), in accordance with the terms of sale currently in effect. Following the signing of this Agreement, smbCoach will begin providing the Services on or about the date indicated on the invoice. Web services include the content creation, creation and development of a website (the “Website”), the registration of a domain name, as well as the hosting of the Website, related technical support, and all other services offered in the monthly package that the customer has chosen. If the customer already has a domain name, it will be transferred to smbCoach only for the purpose of providing the Services. Upon termination or expiration of this Agreement, smbCoach will transfer the domain name to the customer provided that the customer has fulfilled its obligations to pay the Fees. The customer will be responsible for all fees payable to third parties or registration transfer fees.
In the event of a conflict between the terms and conditions of a purchase order and the Contract, the terms of the Contract shall prevail.
Definitions of the Terms
You may use our smbCoach services (the “Service”), provided that you are of legal age to enter into a binding contract and that you are not prohibited from receiving such services under the laws of Quebec, Canada or other jurisdictions. In order to access our services, you must provide current and factual identification, contact and other information as part of the registration and payment processes. You are responsible for maintaining the confidentiality of your account information and all activities that occur under your account. You are solely responsible for all the content of your account. You agree to immediately notify codeMountain of any unauthorized use of your account or any other breach of security. codeMountain will not be liable for any loss or damage resulting from your failure to provide us with accurate information or to secure your account.
For the purposes hereof, the following terms shall have the meanings set forth below: “Customer Materials” means all materials, including, without limitation, all text, graphics, images, icons and buttons provided by the Customer to smbCoach, if any, under the Agreement. “Customer Data” means the information collected by the Customer, including, but not limited to, personal information and all Customer data relating to users. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade names, business names and any other form of intellectual property rights recognized by the competent authorities, including applications for the registration of such rights. “Third Party Tools” means any tool, content, software, module and development and creative element licensed by third parties that is used by smbCoach or its subcontractors in connection with the Services.
- Invoicing and Payment
You agree that codeMountain shall be permitted to charge your credit card a one-time Service fee and/or on a monthly, quarterly, annual, or other agreed upon basis in advance of providing services. Payment is due upon invoicing, or upon the recurring date of your initial credit card charge. Services may be interrupted on accounts that reach 15 days past due. All payments for codemountain’s Services will be paid online by credit card. Your credit card will be automatically charged each month and and invoice receipt will be emailed to you the same day. All charges on your credit card will appear as “codeMountain: smbCoach services / pmeCoach services”.
codeMountain provides each Customer with his own billing dashboard where they can review and pay their invoices online. The link to your dashboard will be sent with each invoice notice we email you.
Customer is aware that codeMountain may change the specified rates and charges from time to time. If your Services grows to a point that it requires a higher payment rate, we will let you know in advance.
codeMountain is not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges billed by codeMountain. Currency exchange settlements will be based on agreements between you and the provider of your credit card.
2.1 The Agreement shall come into force on the date of signature or upon obtaining the access codes, whichever comes first, which shall be automatically renewed on an annual or monthly basis, unless a party terminates it in accordance with paragraph 2 hereof. Unless the Client gives smbCoach written notice thirty (30) days before the end of the Initial Term, the terms of this Agreement shall automatically be renewed for an indefinite period of time and on a annual or monthly basis depending the Service and prior agreements. Minimum periods of subscription may also apply for certain Services, which will be indicated on the first Invoice.
2.2 Reasoned termination. Either party may terminate this Agreement on the grounds of a material breach by the other party of its obligations and if such breach is not cured (30) days after written notice to that effect or immediately, if the other party is bankrupt, insolvent or terminates its business activities. The obligations hereunder, which shall remain in effect upon termination of this Agreement, shall continue to be in effect after termination of this Agreement.
2.3 Effect of termination. Upon termination of this contract:
(i) all rights granted in this Agreement by either party to the other automatically terminate and are no longer in effect;
(ii) each party shall immediately cease using or displaying the intellectual property of the other party covered by this Agreement;
(iii) each party must return or destroy all confidential information in its possession that is related to the other party;
(iv) smbCoach is entitled to all payments due and unpaid prior to the date of termination.
2.4 Termination without cause before the website is put online. The Customer may terminate the Agreement before the website is launched, at any time, upon thirty (30) days’ written notice. In the event of an unjust termination, the Client agrees to pay smbCoach a penalty fee for all work and services rendered during the creation of the website, up to an amount of $1499.
2.5 Termination without cause following the official launch of the website. The Customer may terminate the Agreement following the launch of the website at any time upon thirty (30) days’ written notice. In the event of termination without cause, the Client agrees to pay smbCoach all amounts due under the purchase order or Contract, monthly payments for the for the Services up to the date of termination, and fees for the transfer of the Website and/or the domain name, and for closing the file.
2.5 Upon expiry or termination of a purchase order, all rights and licenses granted by one party to the other shall immediately cease.
3.1 Customer’s equipment. Customer hereby grants to smbCoach a non-exclusive, revocable, royalty-free, worldwide license to use, reproduce and modify Customer Materials and to create derivative works, under the applicable terms of the purchase order.
3.2 Customer’s brands. The Client grants to smbCoach and its subcontractors, during the term of the Agreement, a limited, non-exclusive, royalty-free, worldwide license to use the Client’s corporate names, trademarks, service marks, symbols and logos (collectively referred to as “Marks”) to perform its obligations under the Agreement.
3.3 Customer data. The Client hereby grants smbCoach a non-exclusive, revocable, royalty-free, worldwide license to use, reproduce, modify and disclose Client Data only in a form that does not reveal a person’s specific identity.
3.4 Brands of smbCoach. The Client may not use the Marks of smbCoach or its subsidiaries or subcontractors under any circumstances without the express written consent of smbCoach or its subsidiaries.
4.1 Content. The Client must refrain from including or providing any material via the Internet:
(a) pornographic or that can be considered as such, promoting violence or the use of firearms, containing obscene or defamatory language under any law in force or in any jurisdiction where it remains a user;
(b) which may constitute an infringement of the intellectual property rights of a third party (including copyright, patent, trademark, trade secret or other exclusive right);
(c) which may constitute a violation of a third party’s publicity or privacy rights;
(d) containing viruses or other computer subprograms that are intended to damage, adversely interfere with, intercept or surreptitiously expropriate a system, data or personal information;
(e) depreciating smbCoach, the services provided by smbCoach. Subject to the foregoing in all respects, the Customer may update the design and content of the Websites, provided that the Customer notifies smbCoach following any material change to the Websites and, in addition, provided that the Customer makes reasonable efforts to give smbCoach prior notice of such material changes. smbCoach reserves the right to remove from the network any Websites whose content does not comply with the provisions of this Agreement.
5.1 The Client acknowledges and agrees that the Services and any necessary software used in connection with the Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as otherwise provided or expressly authorized by codeMountain, you agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services or the Software, in whole or in part.
5.2 The Client acknowledges and agrees that smbCoach and/or its subcontractors, as applicable, shall retain all right, title and interest in and to the Services covered by the Agreement, including, but not limited to, Third Party Tools and any computer equipment used to provide the Services, and any form of Intellectual Property Rights therein, except with respect to the front-end user interface of the websites included in the Agreement.
5.3 In order to maintain the quality of our Service but without being obliged to do so, we reserve the right to remove from your Site, without notice, any file, database, transaction log, program or other element that would cause excessive use of our servers, if this element may in our opinion interfere with the proper functioning of the sites we host.
5.4 We also reserve the right to delete, modify or change the permissions of any file deemed to be in violation of the general terms and conditions of use or in the event of failure to comply with the terms hereof without notice or notice.
- Customer’s Obligations
6.1 The Customer represents and warrants that it will comply with the provisions of the following license:
6.2 The Customer agrees to pay us the amounts according to the package chosen when opening his account or as modified from time to time in accordance with this Agreement, in addition to all applicable taxes, which amount must be paid upon receipt. If the amount is not received 45 days after the current prepaid period, depending on the package chosen, the Service will be suspended without notice until the amount due has been paid in full, in which case you agree to pay us a $50 reactivation fee each time you fail to meet the renewal conditions.
6.3. The Customer undertakes to comply with all laws and regulations in force in the country from which it uses the Service, as well as with all laws and regulations in force in Canada from which the Service is operated.
6.4. To use the Service, you must provide a valid e-mail address, provide accurate, current and complete personal information and keep it up to date at all times.
6.5 Customers must have access to an email address in order to use any of our Services. Customer is responsible for monitoring that email address for all communications from codeMountain including but not limited to notices and invoices related to Services provided by us. You also give us the right the send you Email related to your Account and Services. We will never share your information for any other purposes then to deliver the Services you subscribe to with codeMountain.
6.6 Do not disrupt the Service in general.
- Acceptable Conduct
You are responsible for the actions of all users of your account and any data that is created, stored, displayed by, or transmitted by your account while using our Services. You will not engage in any activity that interferes with or disrupts codeMountain’s services or networks connected to any of our services.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the Customer. This means that you, and not codeMountain, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. codeMountain does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will codeMountain be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
- Prohibited Usage
You agree that any of the below activities are considered prohibited usage and will result in immediate account suspension or cancellation without a refund and the possibility that codeMountain will impose fees; and/or pursue civil remedies without providing advance notice.
Misuse of System Resources: Intentional misuse of system resources, including but not limited to employing programs that consume excessive network capacity, CPU cycles, or disk IO.
Spam and Unsolicited Bulk Email (UBE): codeMountain has a zero-tolerance policy on spam, Junk E-mail or UBE. Spam, Junk-mail and UBE are defined as: the sending of the same, or substantially similar, unsolicited electronic mail messages, whether commercial or not, to more than one recipient. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested the message. UBE also includes e-mail with forged headers, compromised mail server relays, and false contact information. This prohibition extends to the sending of unsolicited mass mailings from another service, which in any way implicates the use of codeMountain’s services whether or not the message actually originated from our network.
Mailing Lists: Our mass mailing rules also apply to mailing lists, list servs, or mailing services you may contract with. The policy is stated as follows: An acceptable mailing list will be focused at a targeted audience that has voluntarily signed up for your e-mail information or that has made their e-mail address available for distribution of information from you. The list must also allow for automatic removal of recipients with non-distribution in the future.
Access to Other Computers or Networks without Authorization: Attempting unauthorized and/or illegal access of computers, networks and/or accounts not belonging to party seeking access. Any act which interferes with the services of another user or network. Any act relating to the circumvention of security measures.
Our services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of Canadian or provincial regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights; uploading, posting, emailing, transmitting or otherwise making available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable or harmful to minors in any way. codeMountain’s services may not be used to facilitate infringement of these laws in any way.
Other Activities viewed as Illegal or Harmful: Engaging in illegal activities or engaging in activities harmful to the operations of codeMountain or our Customers.
Providing False Data on any Contract or Application: This includes fraudulent use of credit card numbers and identity theft.
You acknowledge that codeMountain may or may not pre-screen Content, but that codeMountain and its designees shall have the right (but not the obligation) in its sole discretion to pre-screen, refuse, or move any Content that is available via the Services. Without limiting the foregoing, codeMountain and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content, including without limitation information in message boards and in all other parts of the Services.
You acknowledge, consent, and agree that codeMountain may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of codeMountain, its principals, employees, associates, affiliates, users, and the public.
You understand that the technical processing and transmission of the Services, including your Content, may involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Services and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by codeMountain and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Services. Any unauthorized reproduction, publication, further distribution, or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
All logos, product, and service names related to these TOS are trademarks of codeMountain inc (the “smbCoach and pmeCoach” product branding). Without codeMountain’s prior permission, you agree not to display or use in any manner the codeMountain brand or product branding.
- Support Boundaries
Support service will only be provided via Email at firstname.lastname@example.org, via telephone/voicemail at 1-855-810-5255, scheduled calls at http://calendly.com/codemountain or from within some of the Services themselves. codeMountain provides 9-5 EST GMT -04:00 / business days support to our customers. The following are our guidelines when providing support: codeMountain provides support related to your Services. codeMountain does not offer technical support for other applications that we did not deliver to you. Examples include but are not limited to plugin usage or configuration, CGI programming, email, web or mail server configuration, or any other such issue. codeMountain does not provide general technical support. codeMountain may provide such support on a per incident basis, we will do our best to give you an estimate of the applicable fees related to any work you approve us to perform.
- Liability of smbCoach
10.1 In no event shall smbCoach’s liability in respect of the Services performed and delivered or to be delivered exceed the lesser of the following amounts:
(i) the price actually invoiced and paid by the Customer for the portion of the Service concerned and
(ii) smbCoach’s additional cost for the correction or replacement (at smbCoach’s discretion) of the defect found in connection with the portion of the Service concerned. smbCoach’s warranty obligations and the Customer’s remedies for breach thereof are solely and exclusively provided for in this paragraph.
10.2 Without limiting the foregoing, in no event shall smbCoach be liable for any indirect, punitive or consequential damages or loss of income or profits, or any damages your business may suffer.
- Service Fees
11.1 Notwithstanding any provision to the contrary, smbCoach may at any time change its prices, at its sole discretion.
11.2 smbCoach may annually increase the Fees payable under this Agreement in accordance with its usual practices. The client must pay the increased Fee to smbCoach upon receipt of a notice of increase from smbCoach.
12.1 The Client understands that smbCoach is not responsible in any way for the Client’s Material and the Client’s Brands. The Client undertakes to indemnify smbCoach, its affiliates and partners for any claim arising from the Client’s Material or Trademarks or from use that does not comply with the restrictions detailed in section 4 of this Agreement.
12.2 The Client agrees to indemnify and hold smbCoach, its officers, directors, members, employees, volunteers, agents and representatives harmless from any damages and expenses, including attorneys’ fees, arising from your use of the Service and any breach of the general terms and conditions of use of this Agreement. You agree to release smbCoach and its officers, directors, members, employees, volunteers, agents and representatives from any and all claims, actions, damages or other demands, claims, debts, obligations or losses (direct or indirect), expenses or fees of third parties of any kind, including their limitation:
12.2.1 the content of the Site submitted, displayed or communicated through the Service;
18.104.22.168 the use of the Services offered;
12.2.3 the link connecting to the Site or Services;
12.2.4 failure to comply with the obligations included herein;
12.2.5 any violation of the law or infringement of the rights of third parties.
12.3 The Client therefore waives the right to invoke any law likely to limit the scope of such provisions.
12.4 The Customer agrees that in the event of a breach of contract by us, the only compensation payable against us for any direct or indirect damage shall be limited to the reimbursement of the cost of using the Service for the current period, according to the monthly fixed price chosen. You will not be entitled to any other compensation, including but not limited to any loss of profits, data or direct or indirect damage or any other claim of this kind, even if we have been advised of the possibility of such damage.
12.5 Subject to the preceding paragraph, our liability (and that of our subsidiaries, affiliates, partners, sponsors or licensees) to you for any damage or loss whatsoever, whether contractual or extra-contractual, shall not exceed $39 CAD.
13.1 The Client may, at any time and at its own expense, transfer the management of website(s) that are not included in the Agreement to smbCoach. The Client will be responsible for paying the costs incurred by smbCoach for such a transfer.
13.2 Upon expiry of the Agreement, the Customer may, at its discretion, transfer the management of the website(s) included in the Agreement to a third party, subject however to full and uncompromising payment by the Customer of the costs incurred by smbCoach in transferring the Website, closing the file, all amounts due under the Agreement and all outstanding Service monthly payments.
- Third Party Tools
14.1 Notwithstanding any provision to the contrary, the Client acknowledges and agrees: (i) that the Services may contain Third Party Tools over which smbCoach has no control; and (ii) to be familiar with and comply with the terms and conditions of the licenses applicable to Third Party Tools, which are subject to change at any time. smbCoach makes no representation or warranty to the Customer regarding the Third-Party Tools, or that the terms and conditions of the licenses applicable to Third Party Tools will not change or be modified at any time. In addition, the Client acknowledges that these third-party suppliers, as well as smbCoach and its subcontractors, decline and make no representations or warranties with respect to these Third-Party Tools, and assume no liability for any claim that may arise with respect to the Third Party Tools or their use by the Client or the inability to use them. The Client accepts and acknowledges that it will not have full access to the Third-Party Tools.
14.2 The Client accepts that smbCoach is in no way responsible for the content on the Client’s sites. In addition, the Sites may contain links to other sites over which we have no control, or these third-party sites may contain links to sites hosted by our Service, including but not limited to the Google Adwords services we offer you (hereinafter: “SEM Campaign”). We do not endorse and are not responsible for any content, advertising, products, products, services, associations or other materials presented or available on these external sites, unless the Customer has purchased the SEM Campaign Service from which our liability is limited. The same applies to external sites and social networks that refer to Sites hosted by our Service.
- Promotional gifts, gift certificates, discounts and other benefits and loyalty programs
15.1 We may, from time to time and without obligation, give you discounts and benefits as well as promotional gifts or free gift certificates that are promotional offers from us directly or from third parties not controlled by us; they may be subject to special conditions that are more fully specified when they are sent to you. We reserve the right to modify, withdraw or replace such gifts, discounts and other benefits. We disclaim all warranties, express or implied, including, without limitation, the implied warranties of title, merchantability, fitness for a particular purpose in connection with such discounts, benefits and promotional gifts.
16.1 smbCoach offers you, at low cost, the ability to create unlimited email addresses linked to the main domain name of your account. The only limit is the amount of disk space included in your package (5 GB for basic packages).
16.2 smbCoach provides you with the email messaging service (Webmail) so that you can manage, receive and send emails. The email messaging service is part of the email messaging service and customer service technical support included is free of charge.
16.3 In addition to complying with the laws and netiquette, you agree not to use your email addresses in such a way that our servers are on the blacklist (Bill C-28, spam, etc.). Any misuse of emails will result in an immediate suspension of this service in your account.
16.4 You are free to use any technology of your choice to receive or send emails. In this case, please refer to the supplier of the device and/or software to assist you with configuration or problems with receiving and/or sending emails.
16.5 As email problems can be of several kinds beyond our control (internet connection or Wi-Fi network, your devices, updates, backups, etc.). smbCoach offers you free technical support only on its Webmail service. For the other solutions and software you can choose, there are several companies that offer technical support services to help you with your computers, tablets and smartphones. If you prefer to use smbCoach’s on-demand technician service to help you solve your email problems related to the use of solutions other than our Webmail, an hourly fee of $100 per hour will be charged per minute.
17.1 Each party represents and warrants to the other that:
(i) it is duly incorporated and validly existing under its incorporating laws and has the full capacity and authority to become a party to this Agreement;
(ii) it is duly authorized to sign and deliver this Agreement and to perform its obligations thereunder; (iii) this Agreement is a legal and valid obligation, binding on the parties and enforceable in accordance with its terms.
18.1 The Customer may not transfer this Agreement without the prior consent of smbCoach. smbCoach may assign this Agreement, directly or indirectly, in whole or in part, to any of its existing or future affiliates.
19.1 Each of the parties hereto undertakes to maintain confidentiality and not to disclose, in any manner whatsoever, confidential information communicated in connection with the activities of smbCoach, the terms and conditions hereof and not to transmit a copy of the Agreement or any other confidential information to any person without the prior written consent of the party disclosing the information. It is understood that the parties may provide copies of the Agreement to their legal or financial advisors, to the extent that they are bound by confidentiality agreements.
20.1 This Agreement, including this Appendix, supersedes all previous documents, correspondence or negotiations relating to the Services. This Agreement may only be amended by a written document signed by the authorized representatives of both parties.
- Disclosure to Law Enforcement
The Terms of Service specifically prohibits the use of our service for illegal activities. Therefore, Customer agrees that codeMountain may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any court who sends us a valid Court Order, without further consent or notification to the Customer. In addition, codeMountain shall have the right to terminate all service set forth in this Agreement.
- Warranty Disclaimer
You agree that your use of codeMountain shall be at your sole risk. All services provided by codeMountain are available as is, without warranty.
- Independent Contractors
23.1 The parties hereto are independent contractors and nothing in this Agreement shall be construed to create a partnership, association, joint venture or other similar legal relationship between the parties.
24. Applicable law
24.1 The Terms of Service and the relationship between you and codeMountain shall be governed by the laws of the province of Quebec without regard to its conflict of law provisions. You and codeMountain agree to submit to the personal and exclusive jurisdiction of the courts located within the administrative region of St-Jerome, Quebec.
25. Waiver and Severability of Terms
The failure of codeMountain to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the party’s intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
26. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of codeMountain services, or the Terms of Service must be filed within 3 months after such claim or cause of action arose or be forever barred.
All pages on the smbCoach website are protected:
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