WEBSITE TERMS AND CONDITIONS
Last Revised JULY 1, 2019
If you work for or represent a business, you represent and agree that you are authorized by that business to enter into this Agreement on behalf of that business. AB Canada is relying on the fact that you are authorized to enter into this Agreement on behalf of that business. If at any time you do not agree to be bound by this Agreement, you must immediately stop using the Site.
AB Canada reserves the right, from time to time, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any portion of the Site or these Website TAC, in whole or in part, at any time without further notice. For changes to these Website TAC that we deem material, we will place a notice on www.alphabroder.ca by revising the link on the homepage to read substantially as Updated Website Terms and Conditions for an amount of time that we determine in our discretion. If you access or use the Site in any way after the Website TAC have been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes. The most current version of these Website TAC will be available at www.alphabroder.ca and will supersede all previous versions of these Website TAC.
Certain parts or features of the Site may require registration/creation of an account or may otherwise ask you to provide information to participate in certain features or to access certain content. The decision to provide this information is purely voluntary and optional; however, if you elect not to provide such information, you may not be able to access certain content or participate in certain parts or features of the Site. You agree that you will not provide any false personal information to the Site, or create an account for anyone other than yourself or your company without their permission. You will also not create more than one personal profile, and if you select a username for your account, we reserve the right to remove or reclaim it if we believe in our sole discretion that is necessary or appropriate (such as if a trademark owner complains about a username). If you register with the Site, you are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer so that others may not access the password protected portion of the Site. You accept responsibility for all activities that occur under your account, email or password, if any, and agree you will not sell, transfer or assign your membership or any membership rights. AB Canada may, in its sole discretion, and at any time, with or without notice, terminate your password and membership, for any reason or no reason at all. If we disable your account, you agree that you will not create another one without our permission. Your registration on the Site, or use of the Site or the Content (defined below) shall be used by AB Canada as evidence of your consent to receive electronic notifications and marketing material from AB Canada.
2. USE OF THE SITE.
Provided you comply with the terms of this Agreement, you may access, use or download the Site and the materials provided on it (“Content”) for your business only as specifically permitted on the Site, or for your personal, noncommercial purposes. AB Canada grants you a limited, revocable, nonexclusive right to use the online marketing tools and services provided through or on the Site, including but not limited to Custom Catalog, Design Studio, Digital Lounge, Marketing Hub, Sell Sheet Wizard, Campaign Manager (collectively, “Marketing Tools”) as specifically permitted on the Site, for the purposes expressed on the Site. No other use of Content or Marketing Tools is allowed. For purposes of this Agreement, Marketing Tools are including in the definition of Content. These limited rights are granted to you as long as you:
• Agree that, once you receive an AB Canada “customer number” you and/or authorized employees and agents will use your customer number to access the Site for your internal business purposes, and you will not allow anyone other than your authorized employees or agents to use your customer number to access the Site for these purposes.
• Make only lawful use of the Site and the Content.
• Violate no rights or licenses of AB Canada or of any third party.
• Keep unchanged all copyright and other notices.
• Protect the Content from unauthorized use, modification, reproduction, distribution or publication.
• Do not portray AB Canada, its parent, affiliates or licensors, or their products or services, in a false, misleading, derogatory, or offensive way, as determined by AB Canada in its sole discretion.
• Abide by all applicable local, provincial, federal, national and international laws, rules and regulations.
• Send e-mails only to recipients with whom you have a prior business relationship or to whom you are permitted to send emails pursuant to Canada’s anti-spam legislation.
• Send no e-mails to recipients who have asked that you stop sending them e-mails.
• Do not use a false e-mail address, impersonate any person or entity, or otherwise mislead anyone as to the origin of your services or of any Content.
• Do not directly or indirectly access, use or download Content for the purpose of competing with AB Canada (e.g., scraping product data or user information).
You may not upload post, transmit, distribute or otherwise publish on or to the Site any of the following:
• Software virus or other harmful component.
• Advertising or commercial material of any kind, except as expressly authorized in advance by AB Canada.
• False, threatening, libelous, defamatory, pornographic, obscene or otherwise unlawful material.
You may not interfere with the Site or any other user’s use of the Site by, for example, overloading, flooding, mail-bombing or crashing the Site, sending spam of any kind through the site, or inserting any code or product or manipulating the Content in any way that affects any third party’s experience of the Site.
AB Canada may, at its sole discretion, terminate your access to the Site if it believes that you have directly or indirectly violated all or portions of your obligations under this Section 2.
The Site and all of the Content it contains, or may in the future contain, including but not limited to text, video, pictures, graphics, designs, information, applications, software, music, audio files, articles, directories, guides, photographs as well as the trademarks, service marks, trade names, trade dress, copyrights, logos, domain names, code, patents and/or any other form of intellectual property (collectively, the “Material”) that relates to the Site are owned by or licensed by AB Canada or other third parties and are protected from any unauthorized use, copying and dissemination by copyright, trademark and other intellectual property and non-intellectual property laws and by international treaties. Except as expressly permitted in the limited license stated above for the Marketing Tools or otherwise in writing by AB Canada, you shall not capture, reproduce, perform, transfer, sell, license, modify, create derivative works from or based upon, republish, reverse engineer, upload, edit, post, transmit, publicly display, frame, link, distribute or exploit, in whole or in part, any of the Material.
UNAUTHORIZED USE, COPYING, REPRODUCTION, MODIFICATION, PUBLICATION, REPUBLICATION, UPLOADING, FRAMING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING OR ANY OTHER MISUSE OF ANY OF THE MATERIAL IS STRICTLY PROHIBITED.
Any use of the Material other than as permitted by this Agreement will violate this Agreement and may infringe upon our rights or the rights of the third party that owns the affected Material. You agree to report any violation of this Agreement by others that you become aware of. You are advised that AB Canada will aggressively enforce its rights to the fullest extent of the law. AB Canada may add, change, discontinue, remove or suspend the display of or access to any of the Material at any time, without notice and without liability.
AB Canada is pleased to hear from its visitors and welcomes your comments regarding AB Canada products and services but we are not soliciting from you creative suggestions, ideas, notes, photographs, drawings, or other materials. Without limiting the generality of the foregoing, if you send or post a submission or if you send us creative suggestions, ideas, notes, photographs, drawings, concepts, or any other information (each, a “Submission” and collectively, the “Submissions”) despite our specific request above that you not send us any unsolicited Submissions or other creative materials, the Submission will be treated as non-confidential and non-proprietary in each instance. None of the Submissions shall be subject to any obligation of confidence on the part of AB Canada, and AB Canada shall not be liable for any use or disclosure of any Submissions. Any Submission may be used by AB Canada without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas. AB Canada shall have and is hereby irrevocably granted the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, exploit, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit.
By submitting a Submission to the Site or AB Canada, you represent that such Submission is original with you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. Submissions to the Site and/or AB Canada will not be acknowledged or returned. You agree and understand that AB Canada is not obligated to use any Submission you make to the Site or AB Canada and you have no right to compel such use. You hereby acknowledge and agree that your relationship with AB Canada is not a confidential, fiduciary, or other special relationship, and that your decision to submit any material to AB Canada does not place AB Canada in a position that is any different from the position held by members of the general public with regard to your Submission. You understand and acknowledge that AB Canada has wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by AB Canada’s own employees. Many ideas or stories may be competitive with, similar or identical to your Submission in structure, purpose, function, theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of AB Canada’s use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of AB Canada’s actual or alleged exploitation or use of any material you submit to the Site and/or AB Canada, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the exploitation or other use of any AB Canada product or service based on or allegedly based on the material, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.
4. USE BY CHILDREN.
The Site is intended only for those ages 18 and older. If you are under 18, you may not register or submit personally identifiable information on, to or through the Site. AB Canada does not collect personally identifiable information from any person AB Canada knows to be under 18.
Links from the Site to third party sites are provided only as a convenience. You use outside links at your own risk. These links do not constitute AB Canada’s endorsement of any third party, its site, or its goods or services. AB Canada shall not be responsible for and hereby disclaims liability for any injury or damages you may experience by using third party materials. You may not create links to the Site that portray AB Canada in a false or misleading light. You may not use framing or similar techniques to enclose any portion of the Site. Except as intentionally enabled by the Marketing Tools, you may not link to any pages other than the AB Canada home page. Such third party sites are not monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for the content or performance of any third party site accessed through the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the applicable third party site. If you decide to leave the Site and access a third party site, you do so at your own risk and you should be aware that our terms and policies stated in this Website TAC no longer govern.
YOU AGREE THAT YOUR USE OF THIRD-PARTY SITES OR THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
6. CUSTOM WEBSITES.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING THIS SECTION 6, AB Canada WILL NOT ALLOW YOU TO SET UP OR MAINTAIN A CUSTOM SITE.
AB Canada and alphabroder.ca’s Custom Website Tool offers website design services and the hosting of custom websites to its subscribers. Custom websites (or website) must comply with these terms and conditions and all applicable local, state, national and international laws, rules and regulations. Copying, distributing, transmitting, displaying, modifying, selling, or participating in the sale of, or otherwise exploiting or using any part of the Site in any form or by any means other than what is expressly permitted in these Website TAC is prohibited. If we determine that any content on your website is prohibited, we may remove it or delete the custom website. AB Canada reserves the right to make judgments about whether or not content is appropriate in its sole discretion.
AB Canada does not control and is not responsible for the content, quality or accuracy of any information, user generated content, third-party material or links contained on any custom website. You agree not modify, change or interfere with any of the software contained within or related to any Site or to circumvent, disable or otherwise interfere with any features, including security-related features, of this Site or the services found at this Site.
By using the Site, including the Custom Website Tool, you represent and warrant that you have the right to all copyrights, trademarks, and other third party materials appearing anywhere on your website. Your website may not use another company’s logo, trademark or other copyrighted material, including but not limited to visual representations, icons, graphics, service marks, altered marks, domain names, obvious name variations, phonetic equivalents, foreign language equivalents, takeoffs, and abbreviations without the written permission of the owner. You must ensure that the items posted to your custom website are in compliance with all local, provincial, national, and international laws.
You may download and display AB Canada trademarks and images for your custom website, as long as they are used properly in accordance with this Agreement and are not used in a misleading or misrepresentative wayAB Canada may revoke permission for any usage at any time, with or without notice, in its sole discretion. AB Canada logos displayed on your custom website or other site must comply with AB Canada graphic standards. Your custom website must not lead or mislead users to believe you are AB Canada. You may not use any AB Canada trademark, name or brand as part of your company name, corporate name, trade name or domain name as set forth in these Website TAC. Your custom website must provide your contact information, including your true name or registered trade name, and a street address or PO Box. Misleading statements (such as misleading uses of we or us) are not allowed. You may use information about AB Canada awards, accomplishments, memberships, announcements, etc., only with AB Canada’s prior written approval in each instance as to placement and context.
Services provided by AB Canada, alphabroder.ca and the Custom Website Tool may change from time to time. AB Canada reserves the right to change any and all services provided and to make changes to its systems, including but not limited to changes to system hardware, software and access and use procedures without notice.
7. DESIGN STUDIO.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING THIS SECTION 7, AB Canada WILL NOT ALLOW YOU TO USE THE DESIGN STUDIO.
All uses of the Design Studio must comply with all applicable local, provincial, national and international laws, rules and regulations. Software, templates and features appearing in or on the Design Studio are offered as a courtesy only and are used at your own risk. AB Canada will not be responsible for any real, potential or perceived loss of business due to the Design Studio or Site being unavailable for any reason including programming errors, maintenance, or any other unforeseen incidents. If we determine that you have used the Design Studio in a way that is prohibited, we may restrict or discontinue your access and use of the Design Studio. AB Canada reserves the right to make judgments about whether or not uses are appropriate in its sole discretion.
Copying, distributing, transmitting, displaying, modifying, selling, or participating in the sale of, or otherwise exploiting or using any part of the Design Studio in any form or by any means other than what is expressly permitted here is prohibited. You agree not modify, change or interfere with any of the software contained within or related to the Design Studio or to circumvent, disable or otherwise interfere with any features, including security-related features, of this Site or the services found at this Site.
By using the Design Studio, you represent and warrant that you have the right to all copyrights, trademarks, and other third party materials appearing anywhere on materials that you create. You may not alter or obscure any copyrighted material, trademark, logo or other intellectual property belong to any Branded or Private Brand products appearing on the Site. You may not use another company’s logo, trademark or other copyrighted material, including but not limited to visual representations, icons, graphics, service marks, altered marks, obvious name variations, phonetic equivalents, foreign language equivalents, takeoffs, and abbreviations without their permission. You are expected to conduct proper research to ensure that the items posted to your custom website are in compliance with all local, state, national, and international laws.
Services provided by AB Canada, alphabroder.ca and the Design Studio may change from time to time. AB Canada reserves the right to change any and all services provided and to make changes to its systems, including but not limited to changes to system hardware, software and access and use procedures without notice.
8. JURISDICTIONAL ISSUES.
The Site is operated by AB Canada’s parent company Broder Bros., Co. dba alphabroder from the United States.AB Canada makes no representation that the Materials, including merchandise or Goods offered for sale on the Site and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than the United States and Canada. If you access the Site from locations outside of the U.S. or Canada you do so on your own initiative and at your own risk, and you are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from this Site is further subject to United States export controls. No software from this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any countries that are subject to U.S. export restrictions; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Departments Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
9. DISCLAIMERS AND LIABILITY LIMITATIONS.
The Site may be unavailable from time to time due to maintenance or malfunction of computer equipment or for various other reasons. AB Canada assumes no responsibility for any delays, interruptions, errors, defects, omissions, or deletions, related to the communications line failure, operation or transmission, or alteration of, or theft or destruction or unauthorized access to, user communications. AB Canada is not responsible for any technical or non-technical malfunction or other problems of any hosting services, computer systems, servers or providers, telephone networks or telephone services, computer or mobile phone equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or in connection with the Site, including injury or damage to a user’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site.
THE SITE AND THE MATERIALS ARE PROVIDED AS IS WITH ALL FAULTS AND AS AVAILABLE AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AB CANADA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AB CANADA DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SITE OR THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR THE MATERIALS DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. AB CANADA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR THE MATERIALS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT AB CANADA) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
YOU AGREE THAT AB CANADA AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS (COLLECTIVELY, THE RELEASED PARTIES) ARE NOT LIABLE TO YOU OR ANY THIRD PERSON FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING OUT OF OR RESULTING IN ANY WAY FROM OR IN CONNECTION WITH THE SITE, THE MATERIAL, THE FORUMS, ANY TRANSACTIONS IN THE AB CANADA SHOP, ANY LISTING OR ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SITE, EVEN IF THE AB CANADA IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTIONS OR OMISSIONS OF AB CANADA, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE (COLLECTIVELY, THE RELEASED MATTERS). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE WEBSITE TAC, AB CANADA’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $1000. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, AND/OR THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MIGHT NOT APPLY TO YOU.
BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
In connection with this waiver and release, you acknowledge that you are aware that you may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which you now know or believe to be true. Nevertheless, you intend by this Agreement to release fully, finally and forever all Released Matters under this Agreement. In furtherance of such intention, the releases set forth in this Agreement shall be and shall remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto.
AB Canada makes no representation or warranty whatsoever regarding the completeness, accuracy, currency or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Site and/or the Material. Reference to any product, process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by AB Canada.
The Internet may be subject to breaches of security. AB Canada is not responsible for any resulting damage to any user’s computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that email submissions over the Internet may not be secure, and you should consider this fact before submitting any information to anyone over the internet. AB Canada makes no representation or warranty whatsoever regarding the suitability, functionality, availability or operation of the Site.
BY USING THE SITE YOU AGREE TO FULLY INDEMNIFY, DEFEND AND HOLD THE RELEASED PARTIES COMPLETELY HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIMS, ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES, ARISING OUT OF OR RELATING TO: YOUR BREACH OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS IN THE WEBSITE TAC; YOUR VIOLATION OF THIS AGREEMENT OF USE OR ANY LAW; YOUR USE OF THIS SITE AND/OR THE MATERIAL IN VIOLATION OF THIS AGREEMENT; INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR MEMBERSHIP ACCOUNT, EVEN IF NOT SUBMITTED BY YOU, THAT INFRINGES ANY COPYRIGHT, TRADEMARK, TRADE SECRET, TRADE DRESS, PATENT, PUBLICITY, PRIVACY OR OTHER RIGHT OF ANY PERSON OR DEFAMES ANY PERSON; ANY MISREPRESENTATION MADE BY YOU; AND/OR AB CANADA’S USE OF YOUR INFORMATION. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN AB CANADA’S DEFENSE OF ANY CLAIM. AB CANADA RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT IN ANY EVENT SETTLE ANY SUCH MATTER WITHOUT THE WRITTEN CONSENT OF AB CANADA.
Your failure to comply with any of the covenants, terms or conditions in this Agreement automatically revokes your authorization, right and license to use the Site, Marketing Tools and Software, and terminates any and all rights granted to you in the Website TAC. Various parts of this Agreement will continue in full force and effect upon termination of your rights, according to their nature, including restrictions, disclaimers, liability limitations and indemnification obligations. Upon termination, you must promptly destroy all Content or Material obtained from this Site, as well as all copies of any Content or Material. AB Canada may change, suspend or discontinue or restrict any Site feature at any time without prior notice.
12. APPLICABLE LAW AND DISPUTE RESOLUTION.
The Website T&C shall be governed and construed in accordance with the laws of the Province of Ontario, Canada applicable to contracts entered into and fully performed in Ontario and the federal laws of Canada applicable therein (without regard to its conflicts of law principles that would cause the application of any other jurisdictions laws). With respect to any disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in the courts in the Province of Ontario, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the courts in the Province of Ontario.
By using the Site in any way, you unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against the officers, directors and employees of AB Canada and its parent, subsidiaries, affiliates (all such individuals and entities collectively referred to herein as the AB Canada Entities) arising out of, relating to, or connected in any way with the website or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, (3) the arbitration shall be held in Toronto, Ontario; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website; (5) the arbitrator shall apply Ontario law consistent with the applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only your and/or the applicable AB Canada Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) THE ARBITRATOR SHALL NOT HAVE THE POWER TO AWARD CONSEQUENTIAL OR PUNITIVE DAMAGES AGAINST YOU OR ANY AB CANADA ENTITY; (8) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any AB Canada Entity exceed $125 CAD, and you are unable (or not required under the rules of JAMS) to pay any fees and deposits that exceed this amount, AB Canada agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, AB Canada will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) with the exception of subpart (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (6) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor AB Canada shall be entitled to arbitrate their dispute. For more information on JAMS and/or the rules of JAMS, visit their website at www.jamsadr.com.
This Agreement constitutes the entire agreement between you and AB Canada regarding access to and use of the Site and governs your use of any Content or Marketing Tools, superseding and entirely replacing prior agreements (if any) between you and AB Canada. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. AB Canada’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. AB Canada will not be responsible for failures to fulfill any obligations due to causes beyond its control. AB Canada obtains permission from other manufacturers and content owners to make their brands, logos, products and other content available to you through the Site. You agree that these owners that license their rights and content to AB Canada for the Site are intended third-party beneficiaries under this Agreement with the right to enforce the provisions of this Agreement that directly concern their content. In the event it should be determined that any provision of this Agreement is uncertain or ambiguous, the language in all parts of this Agreement shall be in all cases construed as a whole according to its fair meaning and not strictly construed for nor against either party.
YOU HAVE READ, UNDERSTOOD AND APPROVED OF THIS AGREEMENT; YOU HAVE HAD AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL AND WITH SUCH OTHER EXPERTS OR ADVISORS AS YOU HAVE DEEMED NECESSARY IN CONNECTION WITH THIS AGREEMENT. THE FACT THAT AB CANADA MAY HAVE DRAFTED ALL OR PORTIONS OF THIS AGREEMENT SHALL HAVE NO BEARING UPON ITS INTERPRETATION OR CONSTRUCTION.
YOU UNDERSTAND AND AGREE THAT THE PROVISIONS CONTAINED HEREIN REPRESENT AN AGREED ALLOCATION OF RISK WHICH IS REFLECTED IN THE OBLIGATIONS HEREUNDER SUCH AS THE DISCLAIMER OF ALL WARRANTIES AND THE LIMITATIONS ON LIABILITY. AB CANADA COULD NOT PROVIDE THE AB CANDADA PROPERTIES, OR ITS PRODUCTS OR SERVICES TO YOU AT THE CURRENT PRICING “BUT FOR” YOUR AGREEMENT TO THESE TERMS AND CONDITIONS.