Energy Wise Canada
Universal Terms of Service Agreement
Last Revised: February 22, 2020
PLEASE READ THESE UNIVERSAL TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between Energy Wise Canada, an Alberta-based incorporation, (found through this agreement as: “EWC”) and you, and is made effective as of the date of your use of this website (“Website”) or the date of electronic acceptance.
This Agreement sets forth the general terms and conditions of your use of the EWC Website and the actual products and promotional services purchased, engaged, pursued or accessed through this EWC Website (individually and collectively, known herein as the “Services”).
Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control, or take president.
The terms “we”, “us” or “our” shall refer to: EWC. The terms “you”, “your”, “User” or “customer” shall refer to: any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
EWC may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Website.
Your use of this website or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised do not use, (or continue to use) this Website or the Services. EWC may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account (“Account”) information current. EWC assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. EWC may terminate your use of Services for any violation or breach of any of the terms of this Agreement by you. EWC RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS WEBSITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.
This website and the Services are available only to individuals (“Users”) who can form legally binding contracts under applicable law. By using this website or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of Canada or another applicable jurisdiction.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your”, “User” or “customer” shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, EWC finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations.
EWC shall not be liable for any loss or damage resulting from EWC’s reliance on any instruction, notice, document or communication reasonably believed by EWC to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, EWC reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
In order to access some of the features of this Website or use some of the Services, you will have to create an Account. You represent and warrant to EWC that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information up-to-date, accurate, current and complete. If EWC has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, EWC reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure. For security purposes, EWC recommends that you change your password at least once every twelve (12) months for your Account. You must notify EWC immediately of any breach of security or unauthorized use of your Account. EWC will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss EWC or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
You acknowledge and agree that:
iii. You will not use this Website or the Services in a manner (as determined by EWC in its sole and absolute discretion) that:
Is illegal, or promotes or encourages illegal activity;
Promotes, encourages or engages in child pornography or the exploitation of children;
Promotes, encourages or engages in terrorism, violence against people, animals, or property;
Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
Infringes on the intellectual property rights of another User or any other person or entity;
Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
Interferes with the operation of this Website or the Services found at this Website;
Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
Contains false or deceptive language, or unsubstantiated or comparative claims, regarding EWC or EWC’s Services.
iii. You will not access EWC Content (as defined below) or User Content through any technology or means other than through this Website itself, or as EWC may designate.
vii. You agree to back-up all of your User Content so that you can access and use it when needed. EWC does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
viii. You will not re-sell or provide the Services for a commercial purpose, including any of EWC’s related technologies, without EWC’s express prior written consent.
xii. Without limiting any of the rights set forth elsewhere in this Agreement, EWC is expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Website or any Services to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any EWC policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Website or Services (as determined by EWC in its sole and absolute discretion).
We attempt to describe the Products and EWC Services available for purchase through the EWC Website as accurately as possible. However, we do not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on the EWC Website are accurate, complete, reliable, current, or error-free. The prices, quotations and descriptions made on the EWC Website are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express Acceptance of your order (as described below).
All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the EWC Website or related pages, or otherwise made available by us or a Plus Member are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the Plus Member’s specifications or warranty documentation to determine your rights and remedies in this regard.
While we make every effort to ensure that items appearing on the EWC Website are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
An order submitted by you only constitutes an offer by you to us to purchase Plus Member’s Products or EWC Services subject to these Terms at the price and on the terms stated in the order, and is subject to our subsequent Acceptance (as defined below), irrespective of whether the button or link you press or activate to submit your order to us includes words such as “complete order” or otherwise indicates that it is the final step in completion of your order. Any order confirmation email received by you prior to our Acceptance shall constitute an acknowledgement of our receipt of your offer only, and not an acceptance of your offer.
Our acceptance of your order only occurs at such time that we have both: (a) dispatched your Product order and/or provided you with full access to EWC Services, and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card or other payment method (“Acceptance”).
We may cancel your order at any time and for any lawful reason prior to Acceptance. Prior to Acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.
We may keep records of orders received, acknowledgements, acceptances and other contract records after Acceptance for a period not to exceed the maximum period permitted by law. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.
If we have cause to believe that you are unable to pay your debts as they fall due, you fail to pay any amount by the due date or breach any of these Terms, we believe you have engaged in fraud or criminal activity in connection with your use of the EWC Website, or we are unable to process payment to the payment method you provided with your offer, then, without prejudice to any of your other rights, we may do any or all of the following: (a) stop any Products in transit to you; (b) suspend further deliveries of Product if on an ongoing basis; (c) stop or suspend provision of the EWC Services; (d) cancel or revoke Service Use Rights for Third Party Services; (e) cancel any automatic renewal plan in which you have elected to participate; and/or (f) cancel any and all other contracts between us and you.
Some of the features of this Website or the Services, including those Services that are hosted with EWC, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). All content submitted through your Account is considered User Content.
By posting or publishing User Content to this Website or via the Services, you represent and warrant to EWC that (i) you have all necessary rights to distribute User Content via this Website or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
EWC shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions posted to this Website, and shall be entitled to the unrestricted use and dissemination of any User Submissions posted to this Website for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Website and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Website may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Website or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
EWC generally does not pre-screen User Content (whether posted to a website hosted by EWC or posted to this Website). However, EWC reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. EWC may remove any item of User Content and/or terminate a User’s access to this Website or the Services found at this Website for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by EWC in its sole and absolute discretion), at any time and without prior notice. EWC may also terminate a User’s access to this Website or the Services found at this Website if EWC has reason to believe the User is a repeat offender. If EWC terminates your access to this Website or the Services found at this Website, EWC may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
Energy Audits scheduled with Energy Wise Canada are professionally conducted by licensed and experienced Canadian Energy Auditors. Energy Wise Canada works collaboratively with local, reputable and trusted Energy Auditors in all regions of Canada. When you send a request for a professional energy audit, Energy Wise Canada will coordinate for you a regional energy auditor for your services. You will be contacted by your energy Auditor within 2-3 working business days to discuss and arrange your services. If you have any questions about your energy audit, please feel free to email EWC at: info(@)energywisecanada.ca
Lite & Plus Memberships are available on the EWC Website for use in marketing and promoting your business, brand and offers. Lite Memberships are simple in nature with the basic features available to users and free of charge. Plus Memberships have more profile features for furthering your promotion, enable product selling and sales, allow for donation collections and does cost $699+GST per year (Canadian Dollars). Product feature for Plus Members may change and or increase over time and annual pricing us subject to change without notice, reflective on user’s annual renewals.
Posted Plus Member Products Prices or Member Subscriptions do not include applicable sales taxes, shipping and handling, or expedited service if applicable, which will be added to your total price in your checkout.
You are responsible for any applicable shipping and handling charges and provincial and local sales or use taxes that may apply to your order.
If the price of a Plus Member Product is obviously incorrect, regardless of whether it is an error in a price posted on EWC or otherwise communicated to you, then we reserve the right, at our sole discretion, to cancel your order and refund to you the amount that you paid, regardless of how the error occurred.
Prices payable for Products available or EWC Memberships and Sponsorships are those in effect at the time of Acceptance, unless otherwise expressly agreed.
Prices may be indicated on EWC or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance through the charge placed through your selected payment method. Payment shall be made by the payment method selected during your order completion process through EWC. We will charge credit cards at the time of order placement of the Plus Member’s Product(s) or commencement of EWC Memberships or Sponsorships. We reserve the right to verify and/or authorize credit card payments prior to Acceptance.
Except as expressly provided elsewhere in these Terms, payment will be taken in full at time of order, notwithstanding any future claim for short delivery or defects. Please see the User return policy for details on returning items to Plus Members.
When you use the services of a third party payment or billing provider in connection with your purchase from us, your use of such services will be subject to the third party provider’s own terms and conditions. You may be required to create an account with such third party provider and/or provide that third party provider with your bank account or credit/debit card details. We are not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.
Price & Selling Fee Changes:
EWC reserves the right to change its prices and related fees at any time, and such changes shall be posted online at this Website and effective immediately without need for further notice to you.
If you have purchased or obtained a Membership or Sponsorship, these are setup from the start as auto-renew, annually renewed automatically, so changes in prices and fees shall be effective when the Membership or Sponsorship in question come up for renewal as further described below.
EWC participates in “recurring billing programs” or “account updater services” supported by your credit card provider (and ultimately dependent on your bank’s participation). If we are unable to successfully charge your existing payment method, your credit card provider (or your bank) may notify us of updates to your credit card number and/or expiration date, or they may automatically charge your new credit card on our behalf without notification to us. In accordance with recurring billing program requirements, in the event that we are notified of an update to your credit card number and/or expiration date, EWC will automatically update your payment profile on your behalf. EWC makes no guarantees that we will request or receive updated credit card information. You acknowledge and agree that it is your sole responsibility to modify and maintain your account settings, including but not limited to (i) cancelling Membership or Sponsorship commitments at least 30 days before renewal and (ii) ensuring your associated payment method(s) are current and valid for your renewal. Further, you acknowledge and agree that your failure to do so, may result in the interruption or loss of Memberships or Sponsorships, and EWC shall not be liable to you or any third party regarding the same.
If for any reason EWC is unable to charge your Payment Method for the full amount owed at the time of renewal, or if EWC receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that EWC may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any Membership or Sponsorship registered or renewed on your behalf. EWC also reserves the right to charge you reasonable “administrative fees” for (i) tasks EWC may perform outside the normal scope of its Services, (ii) additional time and/or costs EWC may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by EWC in its sole and absolute discretion).
PLUS Members who are collecting donations or selling their products agree to the donation fees and the selling commissions rates defined here. PLUS Members understand that all monies exchanged from customers through EWC for products or product orders REQUIRE the prompt and full professional delivery and fulfillment in every sales case in order to successfully complete each and every transaction.
EWC Product Selling-PLUS Members must provide prompt (same day, next day or at most 2 day) order processing, shipping and delivery tracking updated on all orders, processed through EWC on the Plus Member’s behalf. The EWC customer experience relies and depends on PLUS Members being proficient about their delivery processes, completing their orders in timely fashions and updating their new customers with deliver tracking numbers within 2 working days or 48 hours or less (whichever is the least amount in/of time) from/of the order being placed. This update is east to do in your Plus Member Dashboard.
PLUS Membership subscription fees are due annually and are non-refundable and must be made before full or continued activation or continuation of the features and benefits of your PLUS Membership Subscription succeed.
EWC Commission Rates:
PLUS Member’s applicable donation fee is 6% of all donations collected plus applicable transaction and banking fees (2.5-3%). PLUS Member’s product sales commissions due to EWC is: 15% of GROSS amount collected in sales revenue on any product sales transactions completed for the PLUS Member through EWC, plus applicable transaction and banking fees (2.5-3%).
Tax & GST Management:
Tax & GST is not collected on donations. Tax & GST collected on Plus Member product sales will be flowed through to the Plus Member for their sales on a pro-rata basis less the EWC Commission. So on $100 dollars collected in sales with 5% in GST ($105), EWC send to the Plus Member directly $85+GST ($89.25) and the Plus Member is responsible for the accounting of their GST (and other applicable sales taxes) on the $85 dollars in revenue collected from EWC. Banking transactions can reduce the sums due slightly, these are calculated on each sale and fund transfer required to settle with the Plus Member accordingly.
Transfer/Collection of Funds:
PLUS Members can expect to receive funds for orders processed or donations collected promptly from EWC, within a one working day window or within 24 hours whichever is the lesser in/of time.
EWC has successfully hosted the PLUS Member Profile Web Pages or Exclusive Sponsorship Promotion (sales and business offers) on EWC for the Term agreed, without folly or interruptions to the service agreed and so the service promised has been fulfilled for the Term. Nothing more or further is required to fulfill the services promised and agreed to between the PLUS Member or Exclusive Sponsor and EWC.
EWC will continue to not permit any offensive materials or unprofessional profiles or messaging to be placed anywhere on the platform. This is to protect and ensure the success and quality of all the member profiles we present and to protect the reputations of our platform.
Service begins as soon as your initial payment is processed and accepted. There are no refunds or credits available once the term has been started. To cancel your annual renewal authorization, please email us at email@example.com at least 30 days prior to your renewal and we will be able to make sure your cancellation is completed. If for some reason you signed up by accident please contact us so we can investigate and help you succeed or cancel your term with us.
Requests to return product(s) purchased on EWC are subject to the following terms and conditions: the return policies:
A EWC Customer who purchases product(s) on the EWC Website can make a Request-to-Return product(s) to the Plus Member whom they purchased from, if/when any of the following circumstances exist:
1A. Products purchased/received do not match the online product(s) details listed, ordered or specifically described; are definitively and distinctly different from the actual items ordered.
1B. The Plus Member assumes responsibilities for any errors in order transmissions. (This includes product logistics and return shipping costs when the product(s) are not delivered correctly to the User.)
2A.The product does not work, or is obviously damaged upon arrival.
2B. Pictures taken of the state of the arrival packaging and condition will be required to process the Request-to-Return product (s) purchased in this case.
3A. If there are no product defects, no damage, no errors on the delivery or of the merchant/member or EWC and you are for any other reason not satisfied with the product(s), or it is simply not what you expected and you would still like to make a Request-to-Return the product(s), the following steps and Plus Member Product(s) Returns-Protocol has been established to help you proceed with your request:
All Plus Member Returned Products Are Subject to:
-A 25% (of the list purchase price) restocking fee; AND,
-All product(s) return shipping costs (in the case where the Plus Member has accepted your Request-to-Return, not because the Plus Member was in error) are the responsibility of you, the customer, not the Plus Member.
-Product(s) accepted for returned and received back to the Plus Member will be refunded within two business day of arrival back with the Plus Member, less the 25% restocking fee as outlined here.
You understand and agree that we are not the manufacturer of the products sold by Plus Members we offer for sale through the Website, and are not the operator of third party services for which we offer service use rights for sale through the property. To the fullest extent permissible under applicable law, the products that you purchase from us are provided to you “as is,” and your use is at your own risk.
All future communications regarding any purchase of any and all products or services sold by Plus Members are to be had between the Plus Member and you the User.
We do not make, and hereby disclaim, any and all express, implied or statutory warranties, including the implied warranties of merchantability, fitness for a particular purpose, non-infringement of third party rights, and any warranties arising from a course of dealing, usage, or trade practice.
Some jurisdictions do not allow the exclusion of or limitations on implied warranties, so the above exclusions and limitations may not apply to you. Unless agreed otherwise or required by applicable law, any warranties provided in relation to products sold by Plus Members only extend to you on the understanding that you are a user and not an unauthorized reseller of those products sold by through the Website by Plus Members.
Plus Members have priced products for purchase from us upon the understanding, and you hereby acknowledge the understanding, that to the maximum extent permitted by applicable law, and whether or not the limited remedies provided herein fail of their essential purpose: (a) our aggregate liability (whether for breach of contract, tort or any other legal theory) shall in no circumstances exceed the amount actually paid by you for the applicable products sold by members which give rise to such liability; and (b) neither we nor our Plus Members shall be responsible or liable to you for any lost profits, cost of substitute goods or services, or any special, incidental, indirect, exemplary, punitive or consequential damages of any description (including without limitation loss or interruption of business) in connection with your use of this Website or your purchase or use of any product sold by Plus Members, however caused and whether based on contract, negligence, tort, warranty, strict liability, or any other legal theory, whether or not we were aware or advised of the possibility of damages, and irrespective of the number or nature of claims. Notwithstanding the foregoing, nothing contained in these terms limit our liability to you for any liability to the extent such liability cannot be excluded or limited as a matter of applicable law.
You agree to defend, indemnify and hold harmless us, EWC, our members, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to (a) any Products purchased by you in connection with your use of the EWC (including without limitation your use of any Third Party Service for which you purchase Service Use Rights from us), or (b) the violation of Section 8 of these Terms by you, your employees, consultants, agents, distributors, or customers.
To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products sold by Plus Members infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.
You specifically acknowledge and agree that your use of this Website and the Services found at this Website shall be at your own risk and that this Website and the Services found at this Website are provided “as is”, “as available” and “with all faults”. EWC, its officers, directors, employees, agents, and all third party service providers disclaim all warranties, statutory, express or implied, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. EWC, its officers, directors, employees, and agents make no representations or warranties about (i) the accuracy, completeness, or content of this website, (ii) the accuracy, completeness, or content of any websites linked (through hyperlinks, banner advertising or otherwise) to this website, and/or (iii) the services found at this website or any websites linked (through hyperlinks, banner advertising or otherwise) to this website, and EWC assumes no liability or responsibility for the same.
In addition, you specifically acknowledge and agree that no oral or written information or advice provided by EWC, its officers, directors, employees, or agents (including without limitation its call center or customer service representatives), and third party service providers will (i) constitute legal or financial advice or (ii) create a warranty of any kind with respect to this Website or the Services found at this Website, and users should not rely on any such information or advice.
The foregoing disclaimer of representations and warranties shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this agreement or your use of this website or the services found at this website.
This Website and the Services found at this Website may contain links to third-party websites that are not owned or controlled by EWC. EWC assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. EWC does not censor or edit the content of any third-party websites. By using this Website or the Services found at this Website, you expressly release EWC from any and all liability arising from your use of any third-party website. Accordingly, EWC encourages you to be aware when you leave this Website or the Services found at this Website and to review the terms and conditions, privacy policies, and other governing documents of each other website that you may visit.
You agree to protect, defend, indemnify and hold harmless EWC and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by EWC directly or indirectly arising from (i) your use of and access to this Website or the Services found at this Website; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Website or the Services found at this Website.
EWC makes no representation or warranty that the content available on this Website or the Services found at this Website are appropriate in every country or jurisdiction, and access to this Website or the Services found at this Website from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Website or the Services found at this Website are responsible for compliance with all local laws, rules and regulations.
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
(A) Disputes. The terms of this Section shall apply to all Disputes between you and EWC. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and EWC arising under or relating to any EWC Services or Products, EWC’s websites, these Terms, or any other transaction involving you and EWC, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. You and EWC agree that “dispute” as defined in these terms shall not include any claim or cause of action by you or EWC for (i) Trade secret misappropriation, (ii) Patent infringement, (iii) Copyright infringement or misuse, and (iv) Trademark infringement or dilution. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
(B) Binding Arbitration. You and EWC further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the CAA Arb Rules Revised 20 Jun 2016 governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in Section 12 of this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your province or territory if the action is within that court’s jurisdiction and is pending only in that court.
(D) Dispute Notice. In the event of a Dispute, you or EWC must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to EWC must be addressed to: EWC. Edmonton, AB, Canada, T6H Attn.: Legal Department (the “EWC Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If EWC and you do not reach an agreement to resolve the Dispute within sixty (90) days after the Dispute Notice is received, you or EWC may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
(E) WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EWC AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR PROVINCIAL CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR EWC WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the CAA Arb Rules, Revised 20 Jun 2016 (“CAA”) and governed by the CAA Arb Rules Revised 20 Jun 2016 (“CAA Rules”) in conjunction with the rules set forth in these Terms, except that CAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The CAA Rules are at canadianarbitrationassociation.ca or by calling 1-800-856-5154. If there is a conflict between the CAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, provincial, or local laws, as limited by the Limitation of Liability set forth in Section 12 of this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, provincial or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Edmonton, AB, Canada, at your option.
(G) Initiation of Arbitration Proceeding. If either you or EWC decide to arbitrate a Dispute, we agree to the following procedure:
(H) Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by EWC or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or EWC is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
(I) Arbitration Fees and Payments:
iii. Disputes involving any amount. In any arbitration you commence, EWC will seek its CAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration EWC commences, EWC will pay all filing, CAA, and arbitrator’s fees and expenses. EWC will not seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.
(J) Claims or Disputes Must be filed within One Year. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within one year in small claims or in arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed and not more then 90 after the dispute inccident. If not filed within one year, the claim or dispute will be permanently barred.
(K) 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY EWC BY E-MAILING INFO@ENERGY-WISE.CA WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first name, (b) last name (c) address, (d) phone number, and (e) account number(s) and state the following: “I wish to opt out of the arbitration provision contained in EWC’s Universal Terms of Service Agreement.” By providing your information in the method above, you are opting out of the agreement to arbitrate contained in EWC’s Universal Terms of Service. Your opt-out request will only be valid if made within thirty (30) days of first accepting the Universal Terms of Service. In the event that you opt-out consistent with the procedure set forth above, all other terms shall contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.
(L) Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and EWC agree that if EWC makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to EWC’s address) in these Terms, EWC will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
(M) Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.
(N) Exclusive Venue for Other Controversies. EWC and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Edmonton, AB, Canada, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You also agree to waive the right to trial by jury in any such action or proceeding.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.
If you have any questions about this Agreement, please contact us by email or regular mail at the following address:
EWC Legal Department
Copyright © 2016-2020 EWC – All Rights Reserved.
Energy Wise Canada
Last Revised: January 21, 2020
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