Terms of Service

Last Update May 1, 2014

Welcome to the Travelwatch (“TW”) Email Marketing Service, an online website (the “Website”) that allows users to create, manage, and launch email marketing campaigns (the “Service”).
By setting up an account with TW or accessing or using the Service, You agree to be bound by the terms and conditions set out in this Terms of Service. If You do not wish to be bound by this Terms of Service, You may not access or use the Website or the Service.

1.  TW Website

This Terms of Service applies to all users and account holders. TW reserves the right to modify the Terms of Service by posting an updated version on the Website or by providing notice to You, or discontinue any aspect or element of the Website, at its sole discretion.

2.  TW Accounts

TW has the right to charge fees for the Service and/or use of its Website, or any parts thereof. Fees are subject to change, at the discretion of TW. TW will notify You of any changes in fees. Payments for the use of the Website or the Service shall be made by credit card, or by other arrangements agreed to in writing by TW. This Agreement represents authorization by You for TW to charge your credit card for the Service. If TW discovers that your credit card is not valid for any reason or it cannot access your monetary funds to get paid for the Service, then TW may terminate or suspend your account, upon which You will become liable for all outstanding fees as well as any other applicable termination and other fees.
You are responsible for providing accurate and complete information when setting up an account. TW will not be liable for any losses caused by any unauthorized use of your account. You are solely responsible for the activity that occurs on the account, and You must keep the account password secure. Notify TW of any breach of security or unauthorized use of your account.
As a TW account holder, You may develop and execute email marketing campaigns and collect and compile visitor, customer, and prospect lists related to the travel industry. You may also upload or develop textual content and design elements for email campaigns. All content or design related to an email marketing campaign and all data uploaded or entered into the Website by You are hereinafter collectively referred to as “User Content.”

3.  Use and Restrictions

TW grants You access to the Website and use of the Service as set forth in these Terms of Service provided that:
a)  You will not alter or modify any part of the Website.
b)  You agree that TW may automatically download and install updates from time to time to enhance the Website’s performance. These updates are designed to improve, enhance and further develop the Website and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to allow such updates as part of this Terms of Service.
c)  You agree to use the Service and the Website in compliance with this Agreement and all applicable federal, provincial, or municipal laws, without limitation. You further agree that under no circumstances will your User Content include material that is obscene, threatening, abusive, defamatory or harassing. You agree that under no circumstances will your email campaigns include spam email. You agree to use the Service and the Website for the purposes as set out in this Agreement and for no improper purpose. TW reserves the right to remove User Content without prior notice.
d)  If an account has been deactivated due to non-payment or misuse, TW reserves the right to charge a reactivation fee.
e)  TW makes no guarantee that email messages will be received by the intended recipients, or that all the design of the User Content will remain identical or consistent for all emails.
f)  You will follow the rules of the CAN-SPAM Act in connection with the use of the Service or the Website at all times. All emails will include, without limitation, a one-click unsubscribe link , a telephone number or business address, and a stated reason for the email as part of the email templates provided by TW.  You will not email to newsgroups or spam email addresses. TW will process unsubscribe requests automatically and immediately. TW reserves the right to make the unsubscribe email unusuable for any future emails.
g)  You represent to TW that you are familiar with the obligations of the sender of a Commercial Electronic Message (“CEM”) under the federal law: “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities (the “Law”).  You are aware of and will comply with your obligation to have the consent of the person to whom a CEM is sent to receive email about what is referred to in the email.  You will at all times make certain that you have the consent of the person to whom you send CEMs and to whom you ask or permit TW to send CEMs.
h)  You agree you will follow the rules of the Law in connection with the use of the Service and/or the Website at all times.  Travelwatch will include the name of your company or the name under which it carries on business, your mailing address, your telephone number with access to a live person or voice messaging system, your email address or your website address and an unsubscribe mechanism which permits the person receiving your email to advise you of the desire not to receive any further email from you, by way of replying to the email or any other electronic means and set out an email address or a link to a website on which the wish not to receive any further email can be communicated. Likewise, Travelwatch must also include it’s mailing address, telephone number and a link to its website.

4.  Website Content

You acknowledge and agree that this Agreement in no way whatsoever transfers, assigns or gives You any right, title, or interest in or to TW’s intellectual property, including without limitation, the Website or the Service. The content on the TW Website or related to the Service, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, and interactive features (the “Web Site Content”) and the trademarks, service marks and logos contained therein (the “Marks”), are owned by or licensed to TW, subject to copyright and other intellectual property rights under the law. Web Site Content is provided to You AS IS for your information and personal use only and may not be downloaded, copied, modified, produced, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, translated, published, performed or otherwise exploited for any other purposes whatsoever, except as provided in this Terms of Service. TW reserves all rights not expressly granted in and to the Website and the Web Site Content. TW acknowledges and agrees that you retain all intellectual property rights in the User Content. You represent that You own or have the necessary licenses, rights, intellectual property rights, consents, and permissions needed to use the User Content. You agree to indemnify and hold TW, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Website, to the Service, or to the User Content.
You agree not to circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Website Content or enforce limitations on use of the Website or the User Content therein.

5.  Confidential Information

TW will make all reasonable efforts to keep your information confidential, and will not provide your information to any third party without your express written consent. TW will not sell or use your customer or prospect information for its own commercial use.

 
6.  Account Termination Policy

TW reserves the right to terminate your access to the Website, in its absolute and sole discretion. If you are dissatisfied with the Service in any way, or with the terms, conditions, rules, policies, guidelines or practices of TW in operating the Service, your exclusive and sole remedy is to discontinue using the Service.
You may terminate this Agreement upon one month’s written notice to TW.

7.  Warranty and Condition Disclaimer

YOU AGREE THAT YOUR USE OF THE TW WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, TW, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL OR IN TORT, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS AND CONDITIONS, THE WEBSITE AND THE SERVICE AND YOUR USE THEREOF OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE. TW MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S CONTENT, THE SERVICE, OR THE CONTENT OF ANY WEBSITES LINKED TO ITS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF TW’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR 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 TW WEBSITE. TW EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF ANY KIND OF FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, MERCHANTABILITY, WORKMANSHIP, NON-INFRINGEMENT, OR TITLE AND OWNERSHIP. TW DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE TW WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TW WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE HEREBY DISCLAIMED.

 
8.  Limitation of Liability
IN NO EVENT SHALL TW, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO AND USE OF THE WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF TW’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER’S USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE TW WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS AND CONDITIONS OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT TW WILL NOT BE LIABLE FOR USER CONTENT OR YOUR DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Website is controlled and offered by TW from its facilities in Canada. TW makes no representations that its Website is appropriate or available for use in other locations. Those who access or use the Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.

 
9.  Third Party Content

TW may offer access to third party web pages and content available over the Internet. In such instances, TW generally exercises no control over such third party content, web pages, or sites. You agree that it is your responsibility to review and evaluate any such content, and that any and all risk associated with the use of, or reliance on, such content rests with You. You further agree that TW shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, any such content.

10.  Indemnity

You agree to defend, indemnify and hold harmless TW, its parent corporation, officers, directors, employees and agents, from and against any and all claims, demands, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses, (including but not limited to reasonable legal fees) arising from: (i) use of and access to the Website or the Service; (ii) violation of any term of these Terms of Service; (iii) violation of any third party rights, including without limitation any copyright, intellectual property, or privacy right; (iv) the sending of a CEM by you or TW on your behalf; and or (v) any claim that your User Content caused damage to a third party. This defense and indemnification obligation will survive the termination of your agreement, for whatever reason, with TW and any use of the Website.

11.  Capacity

You affirm that you are of the age of majority in the jurisdiction of residence, and are fully able and competent to enter into this Terms of Service and to use the Website. The Website is not permitted to minors. TW is not be responsible for the use of its Website by minors.

 
12.  Assignment

You may not assign this Terms of Service. TW may assign this Terms of Service without restriction.

 
13.  Jurisdiction
The Website and the Service shall be deemed solely based in Ontario, Canada. This Terms of Service shall be governed by the laws of Ontario, and Canada, and the parties irrevocably attorn to those jurisdictions. 

 
14.  Invalidity

If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect.

15.  Waiver

No waiver of any term of this Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and TW's failure to assert any right or provision under this Terms of Service shall not constitute a waiver of such right or provision.

 
16.  Amend

TW reserves the right to amend this Terms of Service at any time and without notice. Your use of the Website following any amendment of this Terms of Service will signify your acceptance of the revised terms.

17.  Survival

Sections  4, 7, 8, and 10 shall survive the termination of this Agreement.

18.  Language

The parties confirm that this Terms of Service, as well as any other related documents, including notices, schedules and authorizations, have been and shall be written in the English language only. Les signataires confirment leur volonté que la présente convention, de même que tous les documents s'y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement.