Terms and Conditions

Virtualwind Online Web Site

TERMS AND CONDITIONS OF USE

This document describes the terms and conditions (the "Terms of Use") under which users may access and use the Virtualwind Online Web Site (the "Virtualwind Service").

1. Virtualwind Service

The Virtualwind Service is owned and operated by Virtualwind Inc. ("VIRTUALWIND"), and VIRTUALWIND is providing access to the Virtualwind Service to you as a user (the "User" or "You") under these Terms of Use and any operating rules, policies and procedures that VIRTUALWIND may post from time to time on the Virtualwind Service.

2. Participation in Virtualwind Service

VIRTUALWIND intends to make the Virtualwind Service available to You twenty-four (24) hours a day, seven (7) days a week. However, the Virtualwind Service may not be available from time to time. VIRTUALWIND retains the right to make the Virtualwind Service unavailable from time to time for any reason. YOU AGREE THAT VIRTUALWIND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY INTERRUPTION, SUSPENSION OR TERMINATION OF VIRTUALWIND SERVICE AVAILABILITY.

3. Disclaimer of Warranty and Limit of Liability

YOU EXPRESSLY AGREE THAT USE OF THE VIRTUALWIND SERVICE IS AT YOUR SOLE RISK AND THAT THE VIRTUALWIND SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. VIRTUALWIND MAKES NO REPRESENTATION OR WARRANTY THAT THE VIRTUALWIND SERVICE WILL MEET THE USER'S REQUIREMENTS, OR THAT USER'S ACCESS TO THE VIRTUALWIND SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. VIRTUALWIND GIVES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AVAILABILITY, RELIABILITY OR NON-INFRINGEMENT WHETHER ARISING BY USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE, AND VIRTUALWIND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OTHER THAN THOSE WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF USE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE VIRTUALWIND SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT VIRTUALWIND WILL NOT BE RESPONSIBLE FOR ANY DAMAGE OR LOSS SUFFERED BY YOU AS A RESULT OF THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA, INCLUDING DAMAGE TO ANY COMPUTER SYSTEM OR LOSS OF DATA.

UNDER NO CIRCUMSTANCES WILL VIRTUALWIND OR ITS RELATED ENTITIES OR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY CLAIMS, DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, CONTINGENT, EXEMPLARY, PUNITIVE, AGGRAVATED, CONSEQUENTIAL OR EQUITABLE DAMAGES, RELATED TO, OR ARISING FROM, DIRECTLY OR INDIRECTLY, (1) YOUR USE OF OR INABILITY TO USE THE VIRTUALWIND SERVICE, OR (2) ANY OTHER MATTER RELATED TO THE VIRTUALWIND SERVICE, INCLUDING WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA AND/OR ANY OTHER INFORMATION, NON-DISCLOSURE, LOSS OF USE OR LACK OF AVAILABILITY OF THE VIRTUALWIND SERVICE, FIDUCIARY OBLIGATIONS, OR ANY OTHER ECONOMICAL LOSS WHATSOEVER, HOWEVER CAUSED AND WHETHER OR NOT FORESEEABLE, OR FOR CONTRIBUTION OR INDEMNITY IN RESPECT THEREOF, EVEN IF VIRTUALWIND HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN THE POTENTIAL FOR SUCH DAMAGES.

IN THE EVENT THAT ANY OF THE ABOVE DISCLAIMERS OF WARRANTY OR LIMITATIONS OF LIABILITY ARE FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE OR FOR ANY OTHER REASON VIRTUALWIND, ITS RELATED ENTITIES OR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, IS FOUND TO BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, CLAIM OR LIABILITY (A "LOSS"), VIRTUALWIND'S MAXIMUM LIABILITY TO YOU FOR ANY SUCH LOSS SHALL NOT EXCEED CDN $100.00.

4. Modifications to Virtualwind Service

VIRTUALWIND reserves the right to modify or discontinue the Virtualwind Service, temporarily or permanently, with or without notice to You, and is not obligated to support or update the Virtualwind Service.

5. Links to Third Party Sites

The Virtualwind Service may provide links to other third party worldwide web sites or resources. Although VIRTUALWIND has attempted to provide links to web sites or resources that VIRTUALWIND believes may be useful to You, VIRTUALWIND does not control these sites and resources, nor does VIRTUALWIND endorse them in any way, and is not responsible or liable for their availability, content, or delivery of services, or any damage or loss arising in connection with your use of or reliance on any such third party web sites or resources.

6. User Responsibility

You agree that You are solely responsible for your actions and omissions, the content of your programs, your communications undertaken or transmitted in the course of your use of the Virtualwind Service, and all other data created through or posted on the Virtualwind Service. You agree to comply with all laws that apply to your use of the Virtualwind Service.

7. Security

You are solely responsible for maintaining the confidentiality of your password, and You shall not disclose your passwords to third parties. Furthermore, You are entirely responsible for any and all activities which occur under your User ID. You agree to immediately notify VIRTUALWIND of any unauthorized use of the Virtualwind Service. Unauthorized access to the Virtualwind Service is a breach of these Terms of Use and may be a violation of applicable law.

8. Limited Right to Use

You agree to use the Virtualwind Service only for lawful purposes. Except as explicitly allowed in associated License Agreements or Service Agreements, the viewing or downloading of any content, form or document grants the User only a limited, non-exclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of the Virtualwind Service may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your own personal use. Your right to use the Virtualwind Service is not transferable. Any password or right given to you is not transferable.

9. Prohibited Uses and Materials

You agree not to:

(a) post, promote or transmit through the Virtualwind Service any material that is unlawful, harassing, libellous, abusive, threatening, vulgar, obscene, hateful or racially, ethnically or otherwise objectionable;

(b) transmit or post any material that encourages criminal conduct, gives rise to civil liability or otherwise violates any applicable local, provincial, federal or international law or regulation;

(d) disrupt or interfere with another User's use and enjoyment of the Virtualwind Service.

10. Copyright Infringement

In the event that a User posts or makes accessible communications or other materials that infringe the copyrights of any third party, VIRTUALWIND may terminate the User's access to the Virtualwind Service.

11. Indemnity

As a condition of using the Virtualwind Service, You agree to indemnify VIRTUALWIND, and its subsidiaries, affiliates, officers, agents, and employees against any claim, demand, liability or expense (including reasonable attorney's fees), related to User data or your use of or conduct on the Virtualwind Service, including without limitation, any claims alleging facts that if true would constitute a breach by You of these Terms of Use.

12. Proprietary Rights in Content

You acknowledge that the content of the Virtualwind Service, including but not limited to text, design, graphics, drawings, software, music, sound, photographs, video, graphics or other material contained on this web site or other information presented to User as part of the Virtualwind Service ("Content") is the exclusive property of VIRTUALWIND or its licensors and is protected by copyright, trade marks, service marks, patents or other proprietary agreements and laws, and User is only permitted to use this Content as expressly authorized by VIRTUALWIND. These Terms of Use do not transfer any right, title, or interest in the Virtualwind Service or the Content to User, and User may not copy, reproduce, distribute, or create derivative works from the Content except as provided for herein without expressly being authorized to do so by VIRTUALWIND.

The foregoing provisions of Section 12 apply equally to and are for the benefit of VIRTUALWIND, its related entities and affiliates and its third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.

13. Data Storage

VIRTUALWIND may establish a limit on the amount of memory or other computer storage You may use through the Virtualwind Service. VIRTUALWIND assumes no responsibility for the deletion of, or failure of the Virtualwind Service to store or transmit User Data.

14. Termination or Suspension

VIRTUALWIND may terminate these Terms of Use upon thirty (30) days notice to You. VIRTUALWIND also has the right to revoke or suspend your right to access the Virtualwind Service at any time, without notice to You, for any violation of these Terms of Use or for any prohibited use of the Virtualwind Service or any use of the Virtualwind Service that VIRTUALWIND may consider inappropriate. VIRTUALWIND will not be liable to You or to any third party for termination of these Terms of Use or the revocation or suspension of your right to access the Virtualwind Service. You agree that upon termination of these Terms of Use or the suspension or revocation of your right to access the Virtualwind Service You will cease to access or make any use of the Virtualwind Service. The provisions of Sections 3, 7, 8, 11, 12, 14, 16, 17 and 18 will survive any termination of these Terms of Use or the revocation or suspension of your right to access the Virtualwind Service.

15. Revision of the Terms of Use

VIRTUALWIND may revise, modify, alter or update these Terms of Use at any time by posting the amended Terms of Use on the Virtualwind Service. The amended Terms of Use shall automatically become effective immediately after they are initially posted on this site and any access to or use of the Virtualwind Service occurring after such date shall be subject to such amended Terms of Use. Your continued use of the Virtualwind Service after the posting of amended Terms of Use on the Virtualwind Service constitutes your affirmative agreement to abide by and bound by such Terms of Use, as amended. You agree to regularly review the Terms of Use and to be aware of any such revisions, modifications, amendments and updates.

16. Privacy

By accessing the Virtualwind Service and submitting personal information, including without limitation, your contact information or any information about an identifiable individual, as defined under applicable Canadian laws ("Personal Information"), You agree that VIRTUALWIND may collect, use and/or disclose your Personal Information in accordance with VIRTUALWIND's Privacy Policy and for any purpose otherwise permitted by law. For information on how your Personal Information is collected, used and disclosed by VIRTUALWIND in connection with your use of the Virtualwind Service, please consult VIRTUALWIND's Privacy Policy. You agree that VIRTUALWIND may provide your Personal Information to other persons as required to satisfy any legal requirements and to any person that purchases all or a substantial portion of VIRTUALWIND's assets or participates in a merger or substantial reorganization of VIRTUALWIND's business, provided that such person agrees to use your Personal Information only in accordance with terms and conditions that are no less protective of your Personal Information than the terms and conditions in VIRTUALWIND's Privacy Policy.

17. Applicable Laws

These Terms of Use shall be treated as though they were executed and performed in Alberta, Canada and are governed by and shall be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, without regard to conflict of laws principles. You and VIRTUALWIND hereby submit to the exclusive jurisdiction of the Courts of the Province of Alberta for any claim related to the Virtualwind Service or these Terms of Use, and You agree not to bring any action, claim, suit or proceeding against VIRTUALWIND in any jurisdiction other than Alberta.

18. General

VIRTUALWIND's Privacy Policy is a binding part of these Terms of Use, and together with these Terms of Use constitutes the entire agreement between You and VIRTUALWIND with respect to your use of the Virtualwind Service. VIRTUALWIND's failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right, nor of the right to enforce such provision. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use invalid for any reason, such invalidity shall not affect the remaining portions of these Terms of Use and the remaining portions of these Terms of Use shall continue in full force and effect.

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