Website Use Agreement
|Number:||Issue Date:||Amendment Date:|
|1.0||January 31, 2011|
This Agreement governs use of Tolko Industries Ltd.’s website. It exempts Tolko from liability or limits its liability, and contains other important provisions that you should read. By using the website, including the Customer Portal service, you acknowledge and signify that you have read, understood and agreed, without limitation or qualification, to be bound by this Agreement.
1. Your Acceptance of this Agreement
This is an Agreement between you and Tolko Industries Ltd. (“Tolko”), regarding your access to and use of the Tolko website and all content, information, and services available on or through the website, including the Customer Portal service (collectively, the “Website”). Each time you use the Website, you signify your acceptance and agreement, without limitation or qualification, to be bound by this Agreement as it then reads, and you represent and warrant that you have the legal authority to agree and to accept this Agreement on your own behalf or on behalf of any company or other person on whose behalf you are using the Website (for example, if you are using the Website in the course of your employment, you must have the authority to accept this Agreement on behalf of your employer). If you do not agree with each provision of this Agreement, or you do not have the legal authority to agree and accept this Agreement on behalf of the person you purport to represent, you may not access or use the Website. If you are using the Website on behalf of any company or other person, all references in this Agreement to “you” include that company or other person.
2. Permission to Use the Website
The Website may be accessed and used only by persons in jurisdictions where Tolko’s products and services may lawfully be provided (collectively, “Authorized Jurisdictions”), and by individuals who can form legally binding contracts on their own behalf and on behalf of any company or other person on whose behalf they are using the Website and who have accepted this Agreement. The Website, and the information and documents available on or through the Website, are not intended for persons located in any jurisdiction other than the Authorized Jurisdictions. You are solely responsible for determining whether your use of the Website is lawful, and you must comply with all laws applicable in the jurisdiction from which you are accessing and using the Website. Certain portions of the Website may be accessed and used only by users who have a valid and subsisting login name and password (collectively, “Codes”) issued by Tolko.
3. Scope of Agreement
This Agreement governs your use of the Website and is the entire agreement between you and Tolko relating to your use of the Website and supersedes all previous agreements, written, oral or otherwise, between you and Tolko with respect to your use of the Website. This Agreement is in addition to and supplements any other written agreements you may have with Tolko concerning your dealings with Tolko generally. If there is any inconsistency or conflict between this Agreement and any other agreements that you have with Tolko, this Agreement will govern regarding access to and use of the Website, and the other agreements will govern regarding all other matters.
4. Changes to this Agreement
Tolko may in its discretion change, supplement or amend this Agreement from time to time as it relates to your future use of the Website, without any prior notice or liability to you or any other person, by posting the revised Agreement on the Website. Each time you use the Website after this Agreement has been revised, you signify your acceptance and agreement to be bound by the revised Agreement, without limitation or qualification, and you represent and warrant that you have the legal authority to agree and accept the revised Agreement. You may not change, supplement or amend this Agreement or any revised Agreement in any manner.
All Codes remain the property of Tolko and may be cancelled or suspended at any time by Tolko in its discretion without any notice or liability to you or any other person. Tolko is not under any obligation to verify the identity or authority of any person using the Codes to access and use the Website. Tolko may in its discretion require proof at any time 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 Tolko is not satisfied with such proof.
If you have been issued Codes: (a) you are fully responsible and liable for all use and misuse of the Codes; (b) you will not disclose the Codes to any other person or permit any other person to use the Codes; (c) you will keep the Codes secure and confidential at all times, including not using any “save passwords” feature on your Internet browser software and not leaving your computer until you have logged off the Website; and (d) you will immediately notify Tolko by telephone at (250) 545-4411 or email at email@example.com if you know or suspect that any of the Codes have become known to or used by any person other than the person to whom the Codes were issued by Tolko or might otherwise be available for unauthorized use. You accept all risks of any unauthorized access to the Codes.
6. Purpose of Website
The Website is for informational purposes only. The Website is not a comprehensive or detailed statement concerning the matters addressed, or an offer to sell any product or service, or an offer of employment. It is your responsibility to obtain appropriate and qualified professional advice before acting or omitting to act based upon any information obtained on or through the Website. The Website may not be used to engage in transactions, to place orders, to buy any products, or to give instructions to Tolko or any other person regarding any matter.
Email is not secure or confidential, and email delivery can be delayed or misdirected. For those reasons, email may not be used to provide instructions, orders or other time-sensitive or confidential information to Tolko. If you use email to communicate with Tolko, you do so at your own risk. Tolko will not be responsible or liable to you or any other person for any loss or damage suffered as a result of your use of email to communicate with Tolko, or the use of email by Tolko to communicate with you or other persons at your express or implied request.
8. Personal Information Privacy
9. Ownership and Permitted Use of the Website
The Website (including the Customer Portal service, guides, maps, specifications, brochures, publications, reports, information in text, graphical, video and audio forms, documents, images, icons, software, designs, applications and other elements) available on or through the Website are the property of Tolko and other persons, and are protected by Canadian and international copyright, trademark and other laws. Your use of the Website does not transfer to you any ownership or other rights in the Website, its content or technologies.
The Website is made available to you for your lawful, personal or professional use only. You may use the Website only in the manner described expressly in this Agreement and subject to all applicable laws. Using the Website for any other purpose (including for any commercial or solicitation purposes) or in any other manner is strictly prohibited.
You may print the pages of the Website for your private, personal or professional use, provided that you do not modify any of the content and you do not remove or alter any visible or non-visible identification, marks, notices, or disclaimers. The Website may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, scraped, mirrored or distributed in any way, in whole or in part, without the express prior written consent of Tolko. You may not reproduce, copy, duplicate, sell, or resell any part of the Website, or permit access by others to the areas of the Website that require use of the Codes.
10. Disclaimers, Liability Exclusions/Limitations/Release and Indemnity
The following provisions apply to all matters arising from, connected with or relating to the Website.
YOUR ACCESS TO AND USE OF THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE (INCLUDING THE CUSTOMER PORTAL SERVICE) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF OR RELATING TO ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, QUALITY, RESULTS, SECURITY, SEQUENCE, OR TIMELINESS, ALL OF WHICH ARE HEREBY DISCLAIMED BY TOLKO 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, TOLKO MAKES NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE THAT: (A) THE WEBSITE WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED; (B) THE WEBSITE WILL MEET YOUR REQUIREMENTS; (C) THE INFORMATION AVAILABLE ON, THROUGH OR CONNECTED WITH THE WEBSITE (INCLUDING THE CUSTOMER PORTAL SERVICE) WILL BE TIMELY, UNINTERRUPTED, SEQUENTIAL, ACCURATE, AUTHENTIC OR COMPLETE; (D) CERTAIN OR ANY RESULTS MAY BE OBTAINED THROUGH THE ACCESS TO OR USE OF THE WEBSITE; AND (E) 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 INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; AND TOLKO DISCLAIMS ALL LIABILITY REGARDING SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW.
(B) Liability Exclusions and Limitations/Indemnity and Release
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(I) EXCLUSIONS: UNDER NO CIRCUMSTANCES WILL TOLKO EVER BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY LOSS OR DAMAGE) ARISING FROM, CONNECTED WITH, OR RELATING TO THE WEBSITE, THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT, THE TERMINATION OF THIS AGREEMENT OR OTHERWISE.
(II) LIMITATIONS: IF, NOTWITHSTANDING THIS AGREEMENT, TOLKO IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL TOLKO’S TOTAL AGGREGATE LIABILITY TO YOU 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). YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE TOLKO FROM ALL LIABILITY IN EXCESS OF $10 (CDN).
(III) RELEASE: YOU HEREBY RELEASE, REMISE AND DISCHARGE TOLKO FROM ALL OBLIGATIONS, LIABILITIES, CLAIMS AND DEMANDS IN EXCESS OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE.
YOU WILL INDEMNIFY, DEFEND AND HOLD TOLKO HARMLESS FROM AND AGAINST ALL LIABILITIES, EXPENSES AND COSTS, INCLUDING REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY TOLKO IN CONNECTION WITH ANY CLAIM OR DEMAND ARISING OUT OF, RELATED TO, OR CONNECTED WITH YOUR ACCESS TO OR USE OF THE WEBSITE, 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 TOLKO IN THE DEFENCE OF ANY SUCH CLAIM OR DEMAND.
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.
11. Other Sites
The Website may include links or references to other Internet sites or resources operated by other persons (collectively, “Other Sites”). Other Sites are independent from Tolko, and Tolko has no responsibility or liability for or control over Other Sites or their content. Tolko does not sponsor or endorse Other Sites. Your use of Other Sites and your dealings with the owners or operators of Other Sites is at your own risk, and you will not make any claim against Tolko arising from, connected with, or relating to your use of Other Sites or your dealings with the owners or operators of Other Sites. The provisions of this Agreement under Section 10 (Disclaimers, Liability Exclusions/Limitations/Release and Indemnity) apply, with all necessary modifications, to your access to and use of Other Sites.
12. No Linking, Framing, Mirroring, Scraping or Data-Mining
Links to the Website without the express written permission of Tolko are strictly prohibited. To request permission to link to the Website, please send an email to firstname.lastname@example.org. Tolko may in its discretion cancel and revoke any permission it may give to link to the Website at any time and without any notice or liability to any person. 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.
13. Unsolicited Submissions
Tolko does not accept or consider unsolicited ideas, suggestions or other materials (“Submissions”). If you send Submissions to Tolko, you automatically grant (or warrant that the owner of the Submissions grants) to Tolko and its 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 or attribution to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Tolko or its assigns and licensees, and you agree, represent and warrant that all moral rights in the Submissions are waived in favour of Tolko and its assigns and licensees.
14. Changes / Termination
Tolko 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. Tolko 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 and your Codes 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 Tolko for any reason, then 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.
15. Governing Law and Dispute Resolution
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. Any dispute between you and Tolko or any other person arising from, connected with or relating to the Website, this Agreement, or any related matters (collectively “Disputes”) will be resolved before the Courts of British Columbia, sitting in the City of Vancouver, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of all Disputes.
16. Other Matters
In this Agreement, “including” means including without limitation.
If any provision of this Agreement is determined to be unenforceable or invalid for any reason, then that 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.
This Agreement enures to the benefit of and is binding upon each of Tolko and its successors, assigns, licensees 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 under this Agreement. Tolko may assign this Agreement and its rights and obligations under this Agreement without your consent.
No consent or waiver by any party to or of any breach or default by any other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by all parties.
The parties have expressly requested and required that this Agreement and all other related documents 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 rediges en anglais.
Any rights not expressly granted by this Agreement are reserved to Tolko.
All questions or comments about the Website or its contents (including any notice of infringement of your copyright) should be directed to:
Tolko Industries Ltd.
PO Box 39
Canada V1T 6M1
Telephone: (250) 545-4411
Fax: (250) 549-5353