Utilium™ Terms of Service
This version in effect since November 16, 2007
THIS AGREEMENT GOVERNS THE USE OF THE UTILIUM WEBSITE. THIS AGREEMENT EXEMPTS UTILIUM AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, AND CONTAINS OTHER IMPORTANT PROVISIONS THAT YOU SHOULD READ. BY ACCESSING OR USING THE UTILIUM WEBSITE, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE UTILIUM WEBSITE.
1. Acceptance of this Agreement
This Agreement: This Terms of Service Agreement (the "Agreement") is a binding agreement between you and the Utilium Network, Inc. ("Utilium") regarding your access to and use of the Utilium website accessible at
Acceptance to Changes: Utilium may in its discretion change this Agreement as it relates to your future use of the Website from time to time, without any prior notice or liability to you or any other person, by posting the revised Agreement on the Website. When you use the Website, you should check the date of this Agreement and review any changes since the last version. Utilium employees do not have authority to change or supplement this Agreement except by posting a revised Agreement on the Website. You may not change or supplement this Agreement in any manner. By using the Website after this Agreement has been revised, you signify your acceptance and agreement, without limitation or qualification, to be bound by the revised Agreement. If you do not agree with each and every provision of the revised Agreement, you may not access or use the Website.
Complete Agreement: This Agreement is the entire agreement between you and Utilium relating to your use of the Website, and supersedes all previous agreements, written, oral or otherwise, between you and Utilium with respect to your use of the Website. This Agreement is in addition to and supplements any other written agreements you may have with Utilium concerning your dealings with Utilium generally. If there is any inconsistency or conflict between the provisions of this Agreement and the provisions of any other written agreements you have with Utilium, the provisions of this Agreement will govern regarding access to and use of the Website, and the other agreements will govern regarding all other matters.
2. Governing Law
Governing Law and Disputes: Utilium is located in Victoria, British Columbia, Canada. This Agreement, your access to and use of the Website, and all related matters are governed solely by the laws of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding the United Nations Convention On Contracts For The International Sale Of Goods. Any dispute between you and Utilium or any other person arising from, connected with or relating to the Website, this Agreement, or any related matters (collectively the "Disputes") will be resolved before the Supreme Court of British Columbia, sitting in the City of Victoria, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court in respect of all Disputes.
3. Ownership and Proprietary Rights
Website: The Website (including all content and other information in text, graphical, video and audio forms, images, icons, software, designs, applications, data, and other elements available via the Website) and the software and technology used to operate the Website are the property of Utilium and others, and are protected by Canadian and international copyright, trademark and other laws. As between the parties, Utilium owns and retains all right, title and interest in, to and associated with Website and all software and technology used to operate the Website. You will not acquire any right, title or interest in or to any software or technology used to operate the Website. All rights not expressly granted under this Agreement are reserved to Utilium.
Trademarks: Utilium is a trademark and trade name owned or licensed by Utilium. Other trademarks, service marks, names, and logos appearing on or in connection with the Website may be owned by other persons. Any use of the trademarks, service marks, trade names or logos displayed on or in connection with the Website is strictly prohibited, and nothing appearing on or in connection with the Website will be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any of those marks.
4. Permission to Use the Website
Permissible Users: The Website may be accessed and used only by individuals who can form legally binding contracts and who have accepted and agreed to this Agreement. The Website may not be used by persons if their permission to use the Website has been previously revoked or terminated by Utilium. This Website may not be used by persons in jurisdictions where access to or use of the Website or any part of it may be illegal or prohibited.
Permitted Uses: You may use the Website for your lawful, personal use only. You may use the Website only in the manner described expressly in this Agreement, and subject to all applicable laws. You may print Website pages provided that you do not modify any of the pages and you do not remove or alter any visible or non-visible identification, marks, notices, or disclaimers.
Prohibited Uses: The Website may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, without the express prior written consent of Utilium. You may not sell or resell any part of the Website or access to or use of the Website. You may not use any of the software or other technologies that are used in the operation of the Website except while you are using the Website in accordance with this Agreement. The framing, mirroring, scraping or data-mining of the Website or any of its content in any form and by any means is strictly prohibited. You may not use any browsing or display technologies in connection with your use of the Website or to post comments, communications, or any other data of any kind to or on the Website with the intention that such postings may be viewed by other users of the Website.
Copyright Complaints: Utilium prohibits you and all persons from uploading, submitting, publishing, displaying, transmitting, distributing, posting or otherwise on the Website any materials that violate other person’s intellectual property or proprietary rights. You may report or notify Utilium by email at support@utilium.com if you believe that any material on the Website infringes on any copyright which you own or control. Utilium may at any time, without any notice or liability to you or any other person, remove or disable access to any allegedly infringing material.
5. Other Sites
General: The Website includes links or references to websites, resources and businesses operated by other persons (collectively "Other Sites"). Other Sites are independent from Utilium, and Utilium has no responsibility or liability for or control over Other Sites, their business, goods, services, or content. Utilium does not sponsor, endorse or approve, whether expressly or implied, Other Sites or their business, goods, services, or content. Utilium is not sponsored, endorsed or approved by Other Sites or other persons. Your use of Other Sites and your dealings with the owners or operators of Other Sites are at your own risk, and you will not make any claim against Utilium arising from, connected with, or relating to your use of Other Sites or your dealings with the owners or operators of Other Sites. Section 8 of this Agreement applies, with all necessary modifications, to your access to and use of Other Sites, the businesses, goods, services, or content on or referenced in Other Sites, and your dealings with the operators of Other Sites.
No Endorsement or Approval: Any links, information, articles, publications, resources or materials belonging to Other Sites that are displayed, suggested, recommended or otherwise by Utilium do not constitute any sponsorship, endorsement or approval by Utilium, whether expressly or implied, of such links, information, articles, publications, resources or materials belonging to Other Sites or the business, goods, services or content of Other Sites.
6. Communications and Unsolicited Submissions
Communications: You authorize Utilium to: (i) accept communications from you by means of the Website, email, and telephone as if those communications had been given directly by you in writing and signed by you; and (ii) respond to your communications by means of the Website, email or other communications methods. Communications that you send to Utilium are not delivered or effective unless and until they are processed by the responsible Utilium representative.
Unsolicited Submissions: Utilium welcomes your comments and suggestions regarding the Website. By submitting any comments, ideas, suggestions or other materials (collectively, "Submissions") to Utilium, you automatically grant (or warrant that the owner of the Submissions grants) to Utilium and its successors, assigns and licensees a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Utilium or its successors, assigns and licensees, and you agree, represent and warrant that all moral rights in the Submissions are waived in favour of Utilium and its successors, assigns and licensees.
7. Personal Information and Privacy
Utilium may in its discretion monitor your use of the Website. Utilium collects, uses, discloses, and retains personal information in accordance with the Utilium’s Privacy Policy, which is available by clicking here, and the provisions of this Agreement. Utilium may in its discretion change the Privacy Policy from time to time without any notice or liability to you or any other person by making a revised Privacy Policy accessible through the Website. By accepting this Agreement, and each time you use the Website, you consent to the collection, use, disclosure, and retention of your personal information by Utilium in accordance with this Agreement, and the Privacy Policy as it then reads without any further notice or liability to you or any other person. The Privacy Policy is available by clicking here.
8. DISCLAIMERS/LIABILITY EXCLUSIONS AND LIMITATIONS/RELEASES
Utilium does not accept any liability for your use of the Website. For that reason, the provisions in this section 8 apply to all matters arising from, connected with or relating to the Website.
Definitions: In this section 8: (i) "Utilium" means Utilium and its directors, officers, employees, agents, information providers, service providers, suppliers, sub-contractors, licensors and licensees, and all other related, associated, or connected persons, jointly and severally; and (ii) "Website" means the Utilium website accessible at
Application: This section 8 applies regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by Utilium or any person for whom Utilium is responsible, and even if Utilium has been advised of the possibility of loss or damage being incurred.
Disclaimers: Your access to and use of the Website is at your own risk. The Website is provided on an "as is" and "as available" basis, without any representations, warranties, conditions or guarantees of any kind, whether express or implied, and including without limitation implied representations, warranties, conditions or guarantees of or relating to accuracy, accessibility, availability, completeness, currency, errors, fitness for a particular purpose, merchantability, non-infringement, performance, quality, results, security, sequence, or timeliness, all of which are hereby disclaimed by Utilium to the fullest extent permitted by law. there will not be any representations, warranties or conditions created by a course of dealing, course of performance or trade usage.
Without limiting the generality of the foregoing, Utilium makes no representation, warranty, condition or guarantee that:
- the Website will be compatible with your computer and related equipment and software;
- the Website will be available or will function without interruption or will be free of errors or that any errors will be corrected;
- the Website will meet your requirements;
- the information available on, through or connected with the Website will be timely, uninterrupted, sequential, accurate, authentic or complete;
- certain or any results may be obtained through the access to or use of the Website; and
- access to and use of the Website will be free of viruses, trojan horses, worms or other destructive or disruptive components and will not infringe the rights (including without limitation intellectual property or Proprietary rights) of any person; and Utilium disclaims all liability regarding such matters to the fullest extent permitted by law. Without limiting the generality of the foregoing, Utilium makes no representation, warranty, condition or guarantee regarding any of the Other Sites. Your use of other sites is at your own risk.
You are solely responsible for:
- obtaining, provisioning, configuring, maintaining and protecting from loss and damage, all computer equipment and services necessary for you to access and use the Website;
- scanning for and preventing the receipt and transmission of viruses and other destructive or disruptive components;
- maintaining a complete and current backup of all data in your computer system before accessing or using the Website; and
- setting up, maintaining and regularly reviewing security arrangements concerning your access to and use of the Website and information stored on your computing and communications systems. You will not do anything that might compromise the security of the Website or the systems or security of any other user of the Website.
The operation of the Website may be affected by numerous factors beyond Utilium’s control. Website operations may not be continuous or uninterrupted, and may be subject to security and privacy breaches. Codes may be circumvented, and may not prevent unauthorized access to your accounts or information.
Utilium is not under any obligation to verify the identity, authenticity or authority of any person accessing or using the Website.
Liability Exclusions and Limitations/Indemnity and Release: Notwithstanding any other provision of this Agreement, and to the maximum extent permitted by applicable law:
- Sole remedy: if you are not satisfied with the Website, your sole and exclusive remedy is to cease using the Website.
- Exclusions: Under no circumstances will Utilium ever be liable to you or any other person for any loss or damage (including without limitation direct, indirect, incidental, consequential, special, punitive, or exemplary loss or damage) arising from, connected with, or relating to the Website, this Agreement, the termination of this Agreement, or otherwise, including but not limited to loss of data, business, markets, savings, income, profits, use, production, reputation or goodwill, anticipated or otherwise (including without limitation by reason of any expenditures, investments, leases or commitments made in anticipation of the continuance or performance of this agreement), or economic loss, under any theory of liability (whether in contract, tort, strict liability or any other theory of law or equity).
- Limitations: If, notwithstanding paragraphs (i) and (ii) above, Utilium is liable to you or any other person, then in no event and under no circumstances will Utilium’s total aggregate liability to you and/or any other person under any theory of liability (whether in contract, tort, strict liability or any other theory of law or equity), ever exceed $10 (CDN).
- Release: You hereby release, remise and discharge Utilium from all obligations, liabilities, claims and demands in excess of the exclusions and limitations set forth in paragraphs (i), (ii) and (iii) above.
- Indemnity: You will indemnify, defend and hold Utilium harmless from and against all liabilities, expenses and costs, including without limitation reasonable legal fees and expenses, incurred or sustained by Utilium in connection with any claim or demand arising out of, related to, or connected with your access to or use of the Website (including without limitation your failure to obtain the necessary permission from other sites or Your Infringement of other person’s intellectual property or proprietary rights), your Breach of this Agreement, or any wrongful conduct by you or any person for whom you are responsible under this Agreement or at law. You will assist and co-operate as fully as reasonably required by Utilium in the defence of any such claim or demand.
Acknowledgement: You acknowledge and agree that this Agreement represents a fair allocation of risk and liability. Advice and information provided by Utilium, whether oral or written, will not create any representation, warranty, condition or guarantee or vary or amend this Agreement, including the above disclaimers, liability exclusions, liability limitations, release and indemnity provisions, and you may not rely upon any such advice or information.
The exclusion of certain warranties and conditions and the exclusion or limitation of certain liabilities are prohibited by law in some jurisdictions. Such limitations may apply to you.
9. Faculty Users
Faculty must comply with this section 9 as well as all of the other sections of this Agreement.
Definition: In this section, "Faculty" includes a faculty member, professor and teacher of a university or college who has registered for an Utilium account.
Codes: Certain areas of the Website are accessible to, and may only be used by, Faculty who has a valid and subsisting username and password (collectively "Codes") maintained by the Website. All Codes are the property of Utilium, and may be cancelled or suspended at any time by Utilium in its discretion without any notice or liability to the Faculty or any other person.
Utilium is not under any obligation to verify the identity, authenticity or authority of any person using Codes to access and use the Website. Utilium may act upon any communication that is given with or through the use of Codes. Utilium may in its discretion at any time require proof of the identity of any person seeking to access and use the Website, and may deny access to and use of the Website or parts of it or refuse to accept or act upon any communication if Utilium is not satisfied with such proof.
If Faculty has been issued Codes, Faculty: (i) is fully responsible and liable for the security of the Codes and any and all use and misuse of the Codes; (ii) will keep the Codes secure and confidential at all times and not disclose the Codes to any other person or permit any other person to use the Codes; (iii) will ensure that all uses of the Codes comply with this Agreement; (iv) will, once Faculty has logged-on to the Website using the Codes, not leave the computer terminal used to access the Website unless and until Faculty has terminated the session and logged-off the Website; (v) will provide to Utilium, at its request, proof of the identify of Faculty seeking to access and use the Website; and (vi) Faculty will immediately notify Utilium by telephone (1-250-483-5570) or by email to support@utilium.com if Faculty knows or suspects that any of the Codes have been lost or stolen or become known to or used by any other person.
Information: To use portions of the Website, Faculty may be required to submit information through the Website. Faculty will ensure that all information Faculty submits through the Website is and remains true, accurate, current and complete, and Faculty will promptly update that information if it changes. Utilium and other persons will rely upon the information Faculty submits. Faculty is responsible for all loss, damage, liabilities, obligations or additional costs that Faculty, Utilium or any other person may incur as a result of Faculty’s submission of any false, misleading, incorrect or incomplete information.
Notices and Announcements: Faculty consents to Utilium sending notices to Faculty by email to notify Faculty of information Utilium considers is of potential interest to Faculty, including: (i) important announcements or information relating to Faculty’s Utilium account and related information (which Faculty cannot opt out of receiving); and (ii) notices describing new products and services or providing other information of potential interest (which Faculty can opt out of receiving).
Postings: Faculty is solely responsible for all links, text, information, instructions, messages, resources, materials and other content (collectively "Faculty Content") that Faculty uploads, submits, publishes, displays, transmits, posts or creates on the Website.
Faculty is prohibited from uploading, submitting, publishing, displaying, transmitting, posting or creating any Faculty Content that Faculty did not create, that Faculty has not obtained the necessary permission from other persons or Other Sites to upload, publish, display, transmit or post, or that are offensive or illegal. Faculty is solely responsible for reviewing and complying with all of the terms, conditions and policies associated with the Faculty Content and access and use by Faculty of Other Sites.
Utilium may, without any notice or liability to Faculty or any other person, and at any time and in its sole discretion, remove or disable access to, all or part of any Faculty Content for any reason, including without limitation, Faculty Content that allegedly infringes on any person’s intellectual property or proprietary rights, that is offensive or illegal, or that is posted without the permission of Other Sites.
Faculty is solely responsible at Faculty’s own cost for creating backup copies, and updating, editing, or adding and deleting the Faculty Content.
By uploading, submitting, publishing, displaying, transmitting, posting or creating Faculty Content on the Website, Faculty automatically grants, and represents and warrants that Faculty has the right to grant, to Utilium and its successors, assigns and licensees a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, transferable, assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Faculty Content (including archived copies of the Faculty Content) or any ideas, concepts, know-how or techniques associated with the Faculty Content for any purpose whatsoever (including without limitation, for the promotion of the Website and the services of Utilium), commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to Faculty or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Utilium or its successors, assigns and licensees, and Faculty agrees, represents and warrants that all moral rights in the Faculty Content are waived in favour of Utilium and its successors, assigns and licensees.
Publicity Consent: In the course of, or in connection with, posting an article, publication or other information on the Website (including, but not limited to, Faculty Content and links to Other Sites) or submitting to Utilium for review and/or posting by Utilium of such article, publication or other information on the Website for access and use by other users, Faculty may be given an opportunity by Utilium to have the Faculty's name displayed on the Website in connection with the posting or submission of such article, publication or other information. If Faculty consents to having his or her name so displayed, Faculty agrees that UTILIUM WILL NOT BE LIABLE TO FACULTY OR ANY OTHER PERSON, WHETHER DIRECTLY OR INDIRECTLY, FOR THE POSTING OF THE FACULTY'S NAME OR THE ACCESS AND USE BY OTHERS OF THE ARTICLE, PUBLICATION OR OTHER INFORMATION SUBMITTED BY FACULTY.
10. Term, Termination and Suspension
The term of this Agreement will continue indefinitely until terminated by you or by Utilium in accordance with this Agreement. Utilium may in its discretion and for its convenience at any time change, discontinue, modify, restrict, suspend or terminate the Website or any part of it without any notice or liability to you or any other person.
Utilium may in its discretion and for its convenience at any time immediately suspend or terminate (in whole or in part) your permission to access and use the Website without any notice or liability to you or any other person.
If this Agreement or your permission to access or use the Website is terminated by you or Utilium for any reason, then you will no longer access or use the Website and this Agreement will continue to apply and be binding upon you regarding your prior access to and use of the Website, and anything connected with, relating to or arising therefrom. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, Sections 2, 3, 6, 8, 9, 10 and 11 of this Agreement, and all other provisions necessary for their interpretation or enforcement, will survive indefinitely after the termination of this Agreement and remain in full force and effect.
11. General
Relationship of Parties: You and Utilium are independent contractors, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between you and Utilium.
Subcontractors: Utilium may in its discretion engage subcontractors to perform its obligations under this Agreement.
Records: Utilium’s records are, unless proven to be wrong, conclusive evidence of your access to and use of the Website and the information and documents available on, through or in connection with the Website. You will not object to the admission of Utilium’s records as evidence in any legal proceeding on the ground that such records are not originals, are not in writing, are hearsay, or are documents containing information extracted from a computer.
Severability: If any provision of this Agreement is held to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of any such severance this Agreement would fail in its essential purpose.
No Waiver: No consent or waiver by a party to or of any breach by the other party of this Agreement: (i) will be effective unless in writing and signed by the parties; or (ii) will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach.
Enurement and Assignment: This Agreement enures to the benefit of and is binding upon each of Utilium and its successors, assigns and related persons, and you and your heirs, executors, administrators, successors, permitted assigns and personal representatives. You may not assign this Agreement or the rights and obligations thereunder. Utilium may assign this Agreement and its rights and obligations thereunder without your consent. This Agreement contains provisions for the benefit of Utilium and its directors, officers, employees, agents, information providers, service providers, suppliers, sub-contractors, licensors and licensees, and other related, associated, affiliated or connected persons, each of whom has the right to assert and enforce such provisions directly on its own behalf.
Cumulative Remedies: Except as expressly set forth in this Agreement, the parties' respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which the parties may be lawfully entitled under this Agreement or at law or equity, and the parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
Interpretation and Language: In this Agreement: (i) a reference to "this Agreement" and other similar terms refers to the agreement as a whole and not just to the particular provision in which those words appear; (ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of the agreement or any of its provisions; (iii) words importing persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations; (iv) words importing the singular number only include the plural and vice versa. You expressly request and require that this Agreement and all other related documents, including the Privacy Policy, be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s 'y rapportent soient rédigés en anglais.
Any rights not expressly granted by this Agreement are reserved to Utilium.
This Agreement is subject to change by Utilium without notice. This Agreement was last changed effective November 16, 2007.