(This statement is only available in our official website language of English)
whos.amung.us Inc.
(Last Updated - May 15, 2010)
whos.amung.us Inc. ("we", "us", "our", "whos.amung.us" or "WAU") provides its Pro line of services, (collectively, the "Services"), through its website located at http://whos.amung.us (and all other sub-domains of amung.us) (the "Website" or "Site"), subject in all cases to the terms and conditions set forth in this Terms of Service Agreement (the "Agreement"). This Agreement constitutes a legally binding contract between you ("you" or "Customer") and whos.amung.us. By completing the registration process and/or using the Services, you agree to be bound at all times by the terms and conditions of this Agreement. Please read this Agreement carefully and in its entirety, this Agreement will always be made available publicly on our Website. If you do not agree with all of the terms and conditions set forth in this Agreement, you should immediately cease using the Services.
1. OUR PRO SERVICES Services provided by whos.amung.us include, but are not limited to, providing real time statistical data to Customers regarding the behavior of their website's visitors and the data accrued by such behavior, including without limitation, the pages visitor spend time, the duration stay, the number of pages being visited, the referring website, search terms and engines used by visitors, and details regarding the browser and operating system of said visitors. whos.amung.us may, at our discretion, utilize data from third party partners to provide Customers with additional information regarding their visitors and websites. We will provide you with services for which you have registered and or installed on your website (some of our services do not require registration, by installing the Tracking Code (defined in section 5) you accept this Agreement in its entirety), subject to the terms of this Agreement. You agree to use the Website and Services at all times in a manner consistent with all applicable laws and regulations and in accordance with the terms and conditions set forth in this agreement.
You acknowledge that the Services we offer vary by price, features, limitations, and service options (each an "Account Plan", collectively the "Account Plans"). You will only receive the Account Plan for which you are registered, and, if applicable, for which you pay all associated fees. Pricing fore each Account Plan is determined by the Account Plan you select and, with some Account Plans, the peak number of users on your website at any given time as calculated by us. The types, features, prices, and limitations of Account Plans shall be determined in our sole discretion. All Account Plans and their details are made publicly available on the Website. A Customer may change their Account plan by contacting whos.amung.us by using the contact form located at http://whos.amung.us/contact/. A Customer changing Account Plans agrees to pay the new fees associated with the new Account Plan and any outstanding fees from the old Account Plan. By agreeing to the terms in this Agreement you agree to receive direct email communication from whos.amung.us, you may opt out of these by contacting us at the above link. We reserve the right to modify the available Account Plans at anytime by posting such modification(s) on our Website. We reserve the right to cancel your account and terminate Services immediately, without notice, in the event you breach any provision of this agreement or any terms that apply to that Account Plan. You agree that some Account Plans may have additional fees applied at the next billing cycle due to exceeding the specified limits of that Account Plan, including, but not limited to, simultaneous users on your website at any given time period, pageviews and/or unique visitors for any given time period.
In order to use the Services, a Customer must create an account and provide website and contact information including, but not limited to, name, address, email address, phone number, website URL(s), and payment information in the form of a credit/debit card number and expiration date and in some cases the CCV/CVV number for the aforementioned credit/debit card (collectively, "Account Information"). Providing false Account Information constitutes a material breach of this Agreement and may result in the immediate termination of your use of the Service. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your password. You acknowledge that you are solely responsible for any and all use of your account. We reserve the right, at our sole discretion to refuse any new account or terminate any active account for no reason whatsoever, without warning or notice. Furthermore, we are not obligated to provide any Services to any Customer until we have received payment in full from the Customer. If we refuse to provide services to an existing Customer account any and all payments will be refunded on a pro-rated basis for Services paid for but not rendered up to the time Services are terminated. A Customer may cancel an Account Plan they are subscribed to by providing written notice to whos.amung.us, in which case all services rendered will terminate at the end of the current billing cycle. Should the Account Plan being cancelled bill based on overages, or be billable in any way the Customer will be issued an invoice at the date of Service termination. Upon termination the Customer is required to remove all whos.amung.us Tracking Code from their website and webpages. Should the Tracking code not be removed after Service Plan termination we reserve the right to continue billing the Customer until the Tracking Code is entirely removed from the Customer's website(s) and webpage(s).
Customer agrees that Services are not to be used within emails, that is the Tracking Code must not be embedded in any emails sent by Customer, or on or behalf of anyone/anything else. Doing so may result in the termination of Customer's account without warning.
2. PAYMENT AND PRICING - You agree to pay us any fees incurred as listed on our Website for the Account Plan you have subscribed to ("the Subscription Fees"), plus any applicable taxes. Completion and submission of any account registration or billing form or infromation authorizes whos.amung.us to charge the credit/debit card specified with your registration for all such corresponding fees in the Account Plan. Such charges will be made on a monthly, yearly, daily, or quarterly basis depending on the Account Plan selected by the Customer. If you wish to cancel the Service, it is important you cancel the service before the next new billing period in order to avoid being charged for it. whos.amung.us reserves the right to change the Subscription Fees for any and/or all of the available Account Plans at any time by updating the applicable pricing information and posting such updates on the Website. Should you be on a custom account plan, you will be billed automatically as above at the amounts and times specified in communication between you and whos.amung.us upon your signup or change to a new plan. New pricing terms will become active and effective with the next new full billing cycle after such pricing term changes are made publicly available. Any failure to pay the amounts due under this Agreement will constitute a material breach of your obligations under this Agreement. Without limiting any other remedies available to us, YOU AGREE TO FULLY REIMBURSE WHOS.AMUNG.US FOR ANY COSTS AND EXPENSES THAT WHOS.AMUNG.US MAY INCUR IN CONNECTION WITH COLLECTING OR ATTEMPTING TO COLLECT ANY SUCH UNPAID AMOUNTS. Requests for refunds will be authorized at the sole discretion of whos.amung.us and will not be given for users found or suspected of 'testing' Pro Services for features and fitness of use. Refunds will generally not be provided if you fail to request cancellation of the Services before you are (automatically) charged for the next billing period.
3. TERMS OF SERVICE CHANGES - We reserve the right to modify any of the terms of this Agreement from time to time and such modification(s) will become effective immediately after posting the modified Agreement on the Website. You agree to be bound to any changes to this Agreement when you use the Services after any such modified Agreement is posted. Hence, it is important that you review this Agreement regularly to ensure you are updated as to any changes. If you do not wish such modifications to apply automatically to you, then it is important for you to review this Agreement before each time you use any of our Services and refrain from using such Services if you see new or different terms that you do not accept.
4. CUSTOMER REPRESENTATIONS, WARRANTIES AND COVENANTS As a condition of receiving any Services from whos.amung.us, you represent, warrant, and covenant as follows: (i) All supplied Account Information is true, complete, and accurate, and during the term of this Agreement the Customer agrees to notify whos.amung.us of any changes to Account Information, (ii) You will safeguard Account Information and passwords by not disclosing it to any third party, furthermore, you will assume all responsibility for any and all harm or liability attributable to you or any other person accessing your account or any Services with your Account Information and/or passwords, (iii) You will comply with all applicable federal laws and regulations governing customer actions under this Agreement, and (iv) You are over the age of 18 and posses the capacity to enter into a legally binding contract. You have full power to enter into this Agreement and perform any and all obligations as set forth in this Agreement.
5. GRANT OF LICENSE - Subject to your full compliance with all of the terms and conditions of this Agreement, whos.amung.us herby grants you a limited, non‐exclusive, revocable, non‐sub‐licensable, nontransferable, royalty-free license to install and implement whos.amung.us's tracking code, which may make use of HTML tags, Javascript, CSS, or other code on your website (the "Tracking Code"), onto page(s) of your website solely for your use in receiving the Service provided to you by whs.amung.us for which you have paid. You agree to accurately follow all instructions and restrictions set forth by whos.amung.us in accordance with respect to your usage of the Tracking Code. You agree that you will not modify, or otherwise change the Tracking code in any way shape or form. You agree that whos.amung.us will not be responsible for any errors, malfunctions, data inaccuracies, or improper results that are attributable to your incorrect, unauthorized, or unsupported use of the Tracking Code. You acknowledge that by implementing the Tracking Code on your web page(s), you consent to whos.amung.us placing temporary or persistent cookies on your users' hard drives. You further agree that it is your responsibility to adequately inform your users of the presence of such cookies.
6. INDEMNIFICATION - You shall defend, indemnify, and hold harmless whos.amung.us, its subsidiaries, and affiliates, and their respective directors, officers, shareholders, agents, affiliates, licensors, partners and employees from and against any and all claims, actions, demands, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses of any kind (including, without limitation, reasonable attorneys fees and other litigation expenses) arising out of or relating to (i) your, or one of your agent's, use of the Website or any of the Services, including, without limitation, the Tracking Code; (ii) your, or one of your agent's, breach of any provision(s) of this Agreement; (iii) any harmful or illegal activities by you or one of your agents in connection with the Website or Services.
7. TERM AND TERMINATION - This Agreement shall continue until terminated in accordance with the terms and conditions of this Agreement. Either party may terminate this Agreement at any time, for any reason, including, but not limited to, if the Customer violates any provision of this Agreement. Any termination of this Agreement shall also terminate the license granted hereunder. Termination by the Customer must be made in writing (email, contact form, etc) to whos.amung.us. Upon termination of this Agreement for any reason, we will invoice you for any outstanding charges resulting from your usage of the Services. Licensee shall have seven (7) days to pay any outstanding invoices upon receipt of such invoice. Sections 6 through 14 and all accrued rights to payment shall survive termination of this Agreement.
8. DISCLAIMER OF WARRANTIES - THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, WHOS.AMUNG.US, ITS SUBSIDIARIES OR PARENTS AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS,AGENTS, AFFILIATES, LICENSORS, PARTNERS AND EMPLOYEES EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, NON-INFRINGEMENT, ACCURACY OF INFORMATION, FEATURES OR CAPABILITIES OF THE SERVICES, AND RELIABILITY OF WHOS.AMUNG.US'S COMPUTERS AND SERVERS. FURTHER, WHOS.AMUNG.US DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SERVICES WILL BE SUITABLE FOR YOUR NEEDS OR YOUR INTENDED APPLICATIONS, OR THAT THE SERVICES WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT YOU SELECT.
9. LIMITATION OF LIABILITY - REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL WHOS.AMUNG.US OR ITS VENDORS, BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST, DAMAGE, OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE, ATTEMPTED USE, OR INABILITY TO USE THE PRO SERVICE, EVEN IF WHOS.AMUNG.US HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN SIX (6) MONTHS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, WHOS.AMUNG.US, ITS SUBSIDIARIES OR PARENTS, AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, AFFILIATES, LICENSORS, PARTNERS, AND EMPLOYEES DISCLAIM ALL LIABILITY OF ANY KIND OF WHOS.AMUNG.US VENDORS. IN NO EVENT WILL WHOS.AMUNG.US'S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY WHOS.AMUNG.US FROM THE CUSTOMER UNDER THIS AGREEMENT.
10. SEVERABILITY - If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and shall not affect the enforceability of any other provision contained in this Agreement. The failure of whos.amung.us. to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit our rights with respect to such breach or any subsequent breaches.
11. MISCELLANEOUS - This Agreement, the whos.amung.us Privacy Policy (available at: http://whos.amung.us/legal/privacy/), and any other guidelines, rules, terms of service/use, or policies pertaining to any of the Services that may be posted from time to time by whos.amung.us collectively constitute the entire agreement and understanding concerning the subject matter hereof between whos.amung.us and the Customer and supersede all prior negotiations, and all other agreements (proposed or other), whether written or oral. You agree that there are no third party beneficiaries of any promises, obligations or representations made by whos.amung.us herein. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement between whos.amung.us and Licensee. The delay or failure of whos.amung.us or Customer, at any time or times, to require performance of any provision hereof shall in no manner affect whos.amung.us' or Customer's right at a later time to enforce such provision. No delay or failure of whos.amung.us or Customer in exercising any right hereunder shall constitute a waiver of such right or any other rights hereunder. No Customer may assign its rights or delegate its responsibilities hereunder without the express written permission of whos.amung.us. whos.amung.us may, at any time, assign its rights or delegate its obligations hereunder without notice to Customer.
12. GOVERNING LAW AND JURISDICTION - This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under the laws of the Canadian province of Alberta as such law applies to agreements between Alberta residents entered into and to be performed within Alberta by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by whos.amung.us, any action or proceeding arising from or relating to this Agreement must be brought in a court in Calgary, Alberta, Canada and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and reasonable attorney fees incurred in connection with such dispute.
13. GOVERNMENT USE - If you are part of an agency, department, or other entity of the United States Government or Canadian Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Services are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies, according to the regulations and laws of the Government country. The Services are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Services by the Government shall be governed solely by the terms of this Agreement
14. NOTICES - whos.amung.us may give notice to Customers for any or all purposes by means of a general notice posted on the Website or by means of an email to Customer's email of record. All notices or other communications to whos.amung.us from Customer shall be sent from the form available at: http://whos.amung.us/contact/.
15. BILLING CURRENCY - All prices quoted for the Services are in United States Dollars (USD) and will be charged in USD for all payment options except for American Express (AMEX) which will be charged the USD equivalent price in Canadian Dollars (CAD) (at an exchange rate of $1USD = $1.02CAD) unless otherwise noted.
