Terms of Service

Where's it Up Terms of Service, effective as of September 12, 2015

Welcome to Where's it Up! We hope that you will enjoy our services that will help you run diagnostic tests of your website(s) through our servers (the "Services"), using our general search engine or our proprietary API ("API"). If you are looking for a description of the Services we offer without any legal jargon (which is necessary according to our lawyers...), please refer to our home page or our API page.

These terms of service (the "Terms of Service") is a legal agreement between you and WonderProxy Inc., also doing business as Where's it Up ("Where's it Up", "we", "us" or "our") setting forth, among other things, the terms and conditions for (i) your access and use of the Wheresitup.com website and any related sub-domains, which we operate (the "Website"), (ii) the use of our API, (iii) the use of our servers, networks and other equipment necessary for the performance of the Services (collectively, the "Servers") and (iv) the provision by WonderProxy of the Services to you.

PLEASE READ ALL THE TERMS OF SERVICE CAREFULLY

1. Registration and Scope of the Services

   • Registration; Account Information
     • You can use our general basic testing engine through our home page without any registration
     • By registering and purchasing credits in advance, different Services will be made available to you (see our pricing page for more information).
     • If you register:
       • You agree to provide truthful and accurate account information, including but not limited to a username, password, name and valid email address (collectively, your "Account Information")
       • You may grant access to your account to co-users (they will each have their own login and password)
       • You agree to update your Account Information as necessary to keep it accurate

   • Description of Services. As a user of our Services, you will have access to the following features depending on whether you register and the number of credits you have purchased (we may add additional features in the future):

     • Types of tests: Web (http, ping), DNS (dig, host), routing (traceroute), speed (fast, edge)
     • Automated testing
     • Live network status
     • Technical support with regards to the function of the Services
     • Management of your account and Account Information

     We make no representations, warranties or guarantees as to the accuracy of the results of the tests your make through our Services.

     The current list of our servers may be found here. We may add additional servers as demand dictates, and while rare we must reserve the right to remove servers from our network without notice. It is our desire for the network to grow, not contract, but should our providers cease operating it may be necessary.

   • Third-Party Payment Processor. Unless agreed otherwise between you and us, you understand and agree that all payments in connection with the purchase of credits will be handled by third party service providers (currently Stripe), which we may change from time to time. Your credit card information will NOT be stored by Where's it Up but by such third party service providers. By buying credits to use our Services, you expressly authorize our payment partners to charge your credit card. You will be subject to the terms of service and privacy policies of our payment partners.

2. Prohibited Acts

   • Prohibition. So that the Website, the Servers and the Services are available for all users to enjoy, you may not, and hereby represent, warrant and covenant that you (including the Legal Entity that you represent) will not or permit or enable any of the Legal Entity's employees or agents, if applicable, or any other third party to:

     • access or attempt to access any or the Servers by any means other than through our Services (either through our home page or our API);
     • use the Website, the API, the Servers or Services in connection with a Distributed Denial of Service (DDoS) attack or to test third party websites, in a detrimental way to their owners (e.g., automatic, multiple and recurrent testing request through our 100+ servers to a third party website, which may have an impact on its availability or reliability); or
     • use the Website, the API, the Servers or Services in a way (including without limitation by downloading, uploading, transmitting or making available any content) that (i) violates the terms of the Terms of Service; (ii) is unlawful, infringing, harmful, threatening, tortious, defamatory, libellous, abusive, obscene, invasive of another's privacy, hateful, fraudulent or malicious; (iii) harasses or advocates harassment of another person; (iv) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing or "spamming"; (v) involves the sending of any virus, Trojan horse, worm, harmful code, shutdown mechanism or similar mechanism; (vi) promotes information that you know is false, misleading, or promotes illegal activities or conduct; (vii) solicits passwords, or personal identifying information for commercial or unlawful purposes from other users; (viii) interferes with or disrupts the Website, the Servers or the Services ; (ix) collect or "harvest" from any Proxy the information of other users for the purpose of transmitting to those other users unsolicited commercial messages; or (x) otherwise violates any local, national or other applicable law or regulation or any fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements).

   • Sacntions. ANY USE OF THE WEBSITE, THE API, THE SERVERS OR THE SERVICES NOT SPECIFICALLY PERMITTED UNDER THE TERMS OF SERVICE IS STRICTLY PROHIBITED AND MAY RESULT, AT WHERE'S IT UP'S DISCRETION, IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT.

   • Contact. Any misuse of the Services or Servers may be reported to [email protected].

3. Service Interruptions

   • Interruptions. You acknowledge that: (i) your access to and use of the Website, the Servers and/or the provision of Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Website, the Servers and/or the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we are entitled, without any liability to you, to suspend access to any portion or all of the Website, the Servers and/or the Services at any time (a) for scheduled downtime to permit us to conduct maintenance or make modifications to the Website or the Servers; (b) in the event of a denial of service attack or other attack on the Website and/or the Servers or other event that we determine, in our sole discretion, that a risk to the Services, to you or to any of our other users may be created if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Interruptions").

   • No Liability. Where's it Up shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Interruption.

   • Notice of Interruption. To the extent we are able, we will endeavour to post updates on the Website (these are normally made automatically), and through other means (e.g., tumblr) regarding any Service Interruption and resumption of service following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

4. Security

   • Your Responsbility. You understand and agree that you are solely responsible for maintaining the confidentiality of your Account Information (including passwords) and for restricting access to your hardware device while using the Services. You agree to accept responsibility for all activities that occur under your account or from your hardware device.

   • No Guarantee. We endeavour to use reasonable security measures to protect against unauthorized access to your account and to any data which may be stored on the Servers. We cannot, however, guarantee absolute security of your account or the personal information we collect, and we cannot promise that our security measures will prevent third-party "attackers" from illegally accessing the Website, the Servers or their content. You agree to immediately notify Where's it Up of any unauthorized use or your account, or any other breach of security at [email protected], and you accept all risks of unauthorized access to the Website, the Servers, your Account Information and any other information you provide to Where's it Up.

   • Disclaimer and Indemnity. Where's it Up will not be responsible for any loss or damage arising out of the unauthorized use of your account and you agree to indemnify and hold harmless Where's it Up, its shareholders, officers, directors, agents, employees, partners and/or licensors, as applicable, for any improper, unauthorized or illegal uses of your account.

5. Cancelation and Termination of Your Account

   • Cancelling Your Account. You can cancel your account at any time by contacting Where's it Up at [email protected]. You will need to re-register if you want to buy credits to use our paid Services.

   • Termination by Where's it Up. Where's it Up may terminate your account immediately (i) in the event of breach or violation of the Terms of Service by you or (ii) as set forth in the section "Warranty Disclaimer" (see paragraph 7 below).

   • Surviving Obligations. All provisions of the Terms of Service which by their nature should survive expiration or termination shall survive the expiration or termination of the Terms of Service, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Website, the Servers and the Services shall not relieve you of any obligations arising or accruing prior to such expiration or termination or limit any liability which you otherwise may have to Where's it Up, including without limitation any indemnification obligations contained herein.

6. Intellectual Property

   • Grant of License. Where's it Up grants you a personal, nonexclusive, non-transferable, worldwide, revocable license to access and use of the Website, the API, the Servers and the Services in accordance with the terms set forth in the Terms of Service. You need to obtain our permission if you want (i) to sell, distribute, licence or in any other way exploit, in whole or in part, the Services or the use of the Website, the API or the Servers (including by way of a bundle with other products and/or services) or any information or software associated with them or (ii) to modify or create derivative works from the Website or the API, in whole or in part.

   • Reservation of Rights. Where's it Up reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. You may not sublicense, assign, or transfer the license granted to you under the Terms of Service, and any attempt to sublicense, assign, or transfer any part of your rights under the Terms of Service is void.

   • Trademarks and Copyright. The following are trademarks (registered or not) of Where's it Up: "Where's it Up", as well as certain other Where's it Up trademarks, service marks, graphics, and logos (collectively, the "Trademarks") used in connection with the Website and the provision of Services. The Website may also contain third-party trademarks, service marks, graphics, and logos, including with respect to products and/or services that may be purchased on our partners' websites (collectively, the "Other Trademarks").

   • Copyright. All content displayed on the Website as well as all the software (including any source code) used in connection with the Website, the API, the Servers or Services are the exclusive property of Where's it Up or third parties and is protected by copyright laws.

   • No License. Nothing appearing on the Website will be construed as granting you any license, right, title or interest relating to the Trademarks, the Other Trademarks or other intellectual property used in connection with the Website, the Servers and/or the Services (collectively, the "Intellectual Property") and the Intellectual Property remains the exclusive property of Where's it Up or its owners. Except as stated herein, you agree not to display, copy, reproduce, use or distribute any Intellectual Property without our prior written consent. Also, you cannot mirror any material contained on the Website or made available through the Services.

   • Feedback. If you choose to communicate to us suggestions for improvements to the Website, the API or the Services (collectively, "Feedback"), you may do so by writing to us at [email protected]. However, we shall own all right, title, and interest in and to the Feedback and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive in favour of Where's it Up, its successors and assigns all your moral rights in the Feedback, and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback. You acknowledge and agree that: (i) your Feedback does not contain confidential or proprietary information; (ii) Where's it Up is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (iii) Where's it Up shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; (iv) Where's it Up may have something similar to the Feedback already under consideration or in development; and (v) you are not entitled to any compensation or reimbursement of any kind from Where's it Up under any circumstances.

7. Disclaimers

   • "AS IS" BASIS. THE WEBSITE, THE API, THE SERVERS AND THE SERVICES (INCLUDING ALL THEIR CONTENT) ARE PROVIDED TO YOU "AS IS." THE ACCESS AND USE OF THE WEBSITE, THE API, THE SERVERS AND THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE ACCESS OR USE OF THE WEBSITE, THE SERVERS OR THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHERE'S IT UP DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WHERE'S IT UP MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE WEBSITE, THE API, THE SERVERS AND THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WHERE'S IT UP DISCLAIMS ANY LIABILITY RELATING THERETO. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

   • Warranty Disclaimer. WHERE'S IT UP MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE USE OR THE RESULTS OF THE USE OF THE WEBSITE OR THE SERVERS OR THE PROVISION OF THE SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS, OR THAT SERVICE ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. WITHOUT PRIOR NOTICE, WHERE'S IT UP MAY MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OR FEATURE OF THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES OR YOUR USE OF THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES. IF WHERE'S IT UP ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE ANY PART OF OR ALL OF THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES, WHERE'S IT UP WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.

   • Your Information. YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION ON OR THROUGH THE WEBSITE, THE SERVERS OR OUR SERVICES IS AT YOUR OWN RISK. WHERE'S IT UP DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

8. Limitation of Liability and Indemnity

   • Limitation of Liability. IN NO CASE WILL WHERE'S IT UP, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES OR OTHER DAMAGES, OR FOR ANY LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES ARISING OUT OF OR RELATING TO (I) YOUR ACCESS, USE, MISUSE OR INABILITY TO ACCESS OR USE THE WEBSITE, THE API, THE SERVERS OR THE SERVICES OR (II) THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY PART OF OR ALL THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES, IN BOTH CASES (I) AND (II) REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, WARRANTY, DELICT, QUASI-DELICT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY) AND EVEN IF WHERE'S IT UP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS OF SERVICE, IN NO EVENT WILL WHERE'S IT UP'S AGGREGATE LIABILITY FOR ANY CLAIMS IN CONNECTION WITH YOUR USE OF THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES EXCEED THE SUMS PAID BY YOU TO PURCHASE CREDITS DURING THE 12-MONTH PERIOD PRECEEDING THE EVENT(S) GIVING RISE TO THE LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

   • Indemnity. YOU WILL INDEMNIFY AND HOLD WHERE'S IT UP, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS, CLAIMS OR DEMANDS (INCLUDING REASONABLE LAWYERS' FEES) ARISING OUT OF (I) YOUR BREACH OF THE TERMS OF SERVICE; (II) ANY DAMAGES BY YOU OR YOUR USE OF THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES CAUSED TO A THIRD PARTY; OR (III) YOUR ACCESS, USE OR MISUSE OF THE WEBSITE, THE API, THE SERVERS AND/OR THE SERVICES, INCLUDING IF YOU USE OUR SERVICES TO TEST THIRD PARTY WEBSITES IN A DETRIMENTAL WAY TO THEM.

9. Privacy Policy

   Your use of the Website, the API, the Servers and the Services is also subject to Where's it Up's Privacy Policy (the "Privacy Policy"), which is incorporated by reference and made a part of the Terms of Service. It is important that you read and understand the terms of our Privacy Policy.

10. General

    • No Partnership. No agency, partnership, joint venture, or employment is created between you and Where's it Up as a result of the Terms of Service and you do not have any authority of any kind to bind Where's it Up in any respect whatsoever.

    • Applicable Law; Jurisdiction. The Terms of Service shall be governed by and construed in accordance with the laws of the Province of Québec, Canada, applicable to agreements made and entirely to be performed within the Province of Québec, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Regardless of where you access the Website, the Servers or use the Services, you agree that any action at law or in equity arising out of or relating to the Terms of Service shall be filed and adjudicated only in the federal or provincial courts located in the Province of Québec (district of Montreal), and you hereby irrevocably and unconditionally consent and attorn to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of the Terms of Service. Notwithstanding the foregoing, we shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by a Québec court will, or may, not be enforced by the jurisdiction in which you resides or is located; or (iii) to enforce a judgment obtained against you in a Québec court.

    • Severability. If any of the provisions of the Terms of Service or their application is found to be invalid under any applicable statute or rule or law, they are, to that extent, deemed omitted and the validity of the other provisions of the Terms of Service will not be affected.

    • Questions. If you have any questions regarding the Terms of Service or wish to report any issue relating to the Website, the Servers or the Services you were provided, please contact us by email at [email protected].

    • Language. The parties hereto acknowledge having expressly required that the Terms of Service and the Privacy Policy are to be drawn up in the English language. Les parties aux présentes reconnaissent avoir expressément exigé que les présentes Conditions de service et la Politique relative à la protection des renseignements personnels soient rédigées en anglais.