further grant TOMS® the right to pursue before any appropriate forum any person or entity that violates TOMS®' or your rights under any applicable law in the User Generated Content.
This Website may contain Interactive Areas. If TOMS® provides such Interactive Areas, you are solely responsible for your use of such Interactive Areas and you use them at your own risk. By way of example, and not as a limitation, you agree that when using any of the Interactive Areas, you will not post, upload, transmit, distribute, store, create or otherwise publish any of the following:
- Material that is sexually explicit, violent, derogatory, unlawful, libelous, defamatory, slanderous, obscene, pornographic, indecent, lewd, harassing, threatening, an invasion of the privacy or publicity rights of a third party, abusive, inflammatory, fraudulent or otherwise objectionable or which could otherwise give rise to civil or criminal liability under Canadian or international law;
- Material that promotes illegal drugs, tobacco or firearms use;
- Material that constitutes hate speech or encourages or provides instructions for a criminal offense, violates the rights of any individual or group, or that otherwise creates liability or violates any applicable local, municipal, provincial, federal or international laws or regulations;
- Material that may infringe any privacy, patent, trademark, trade secret, copyright or other intellectual or proprietary right of any third party;
- Material that uses the names or likenesses of persons living or dead or their property without their prior express written permission or that impersonates any person or entity or otherwise misrepresents your affiliation with any person or entity;
- Advertising or links to other commercial websites;
- Names, postal addresses, telephone or telecopy numbers, email addresses, driver licenses, Social Insurance, national identity, passport and/or credit card numbers or other personally identifiable information of any third party;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Material that is unrelated to the topic of the Interactive Areas in which such material is posted;
- Material that communicates messages inconsistent with the goodwill of TOMS® or which otherwise violates these Terms and Conditions; or
- Material that, in the sole judgment of TOMS®, is objectionable or which may expose TOMS®, you or other Website users to any harm, prejudice or liability.
To the extent possible under applicable law, TOMS® takes no responsibility and assumes no liability for any User Generated Content posted, published, displayed or uploaded by you, or for any loss or damage thereto, nor is TOMS® liable for any errors, mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, profanity or racial or gender slurs you may encounter or any other type of content posted, published, displayed or uploaded by third parties in violation of these Terms and Conditions. As a simple provider of the Interactive Areas, to the extent permissible by applicable law, TOMS® is not and shall not be liable for any statements, representations or User Generated Content provided by its users on this Website. TOMS® has no legal or contractual obligation to screen, edit or monitor any of the User Generated Content posted, published, displayed or uploaded to or through any Interactive Area and makes no claim that it will do so. However, TOMS® reserves the option and right, at its sole discretion, to remove or modify any User Generated Content posted or stored on this Website without any prior notice of any type whatsoever and for any reason whatsoever.
10. Unsolicited Ideas Submissions
TOMS welcomes your feedback regarding our existing products, marketing strategies, business and customer service, subject to Section 9 above. Feel free to contact us with your valuable feedback.
However, our company policy does not allow us to accept or consider unsolicited ideas, suggestions, proposals, comments or materials, including for new or improved products, services or technologies, advertising campaigns, promotions, One for One ideas, product enhancements, processes, materials, designs, marketing plans, artwork or new product names (collectively, “Submissions”). Please do not submit any Submissions in any form to TOMS or any of its employees. Since TOMS is constantly developing new ideas, strategies and products, we hope that you will understand that this policy is intended to help TOMS avoid potential misunderstandings or disputes when TOMS’ products, lines of business or marketing strategies might seem similar or even identical to Submissions made to TOMS.
If, despite our policy, you still provide your Submissions to TOMS, the following terms shall apply to your Submissions, regardless of what your communication says. You agree that:
- TOMS shall automatically solely and exclusively own the content and form of all Submissions and such shall not be returned to you;
- You hereby irrevocably transfer and assign to TOMS all of your right, title and interest in and to all Submissions, including all intellectual property rights therein. At TOMS’s request and expense, you will execute documents and take such further acts as TOMS may reasonably request to assist TOMS to acquire, perfect and maintain its intellectual property rights and other legal protections for the Submissions. You also acknowledge and agree that TOMS is engaged in creating and developing its own programs, plans and projects so it is possible that we are already independently developing products, services, plans and projects that are quite similar and/or competitive to your Submissions (including the concepts contemplated by or embodied therein). Nothing in these Terms and Conditions will be construed as a representation or agreement that we will not develop or have developed, distribute, market or promote applications, services, products, concepts, systems or techniques that are similar to and/or compete with the applications, services, products, concepts, systems or techniques contemplated or embodied in any Submissions or compensate you or provide you with any input or response with regard to your Submissions.
- TOMS may use, copy, reproduce, modify, adapt, translate, distribute, transmit, publish, download, post, lease, create derivative works of, display, perform, and otherwise disclose or incorporate into other works the Submissions for any purpose in any manner, without compensation to you or any other person or party; and
- TOMS is not and shall be under no obligation to pay any compensation for any Submission, attribute ownership of any Submission to you, or respond to any Submission.
Notwithstanding the foregoing, TOMS® does not wish to receive Submissions from you that are or may be considered confidential, nor does TOMS® agree to keep any such Submissions confidential.
11. Third Party Content; Links to Third Party Websites
Any content (including Content), products or services posted on, transmitted through, or linked to by third parties from, the Website are the sole responsibility of the third-party originator of such content. TOMS® does not control, approve, sponsor or endorse any third-party content (including Content), products or services posted on, transmitted or linked through the Website and we make no representations regarding, and are not liable or responsible for the accuracy, completeness, timeliness, reliability or availability of any third-party content (including Content), products or services. Links to any third-party content (including Content) are provided for your convenience only. If you choose to access any third-party content (including Content), you agree that you do so at your own risk and TOMS® is not responsible or liable for any loss or damage of any sort that you may incur as a result of any third-party content (including Content), products or services.
This Website may contain links to third-party services and resources. You acknowledge that (a) TOMS® is not responsible for the contents of any linked website or any link contained in a linked website, or any changes or updates to such websites; and (ii) TOMS® is not responsible for any other form of transmission received from any linked website. TOMS® is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by TOMS® of the website. Any concerns regarding any such link should be directed to the particular third party website.
12. Access to and Use of Website; Acceptable Use Policy
We do not guarantee that the Website, or any Content on it, will always be available or uninterrupted. Access to the Website is permitted on a temporary basis. We may suspend, withdraw, discontinue or change any or all part of the Website without notice. We will not be liable to you if, for any reason, our Website is unavailable at any time or for any period.
Although we make reasonable efforts to update the information on the Website, we make no representations, warranties or guarantees, whether express or implied, that the content on the Website is accurate, complete or up to date.
Acceptable Use Policy
By using the Website, you agree to comply with all content and conduct standards set forth in these Terms and Conditions. By way of example and not limitation, you agree not to:
- modify, copy, distribute, transmit, display, lease, translate, perform, reproduce, publish, license, create derivative works of, reverse engineer, disassemble, decompile, frame, use, transfer or sell any information, products, services or Content provided through or obtained from the Website, including without limitation, engage in the practice of "screen scraping," or any other similar activity;
- hack into the Website, the server on which the Website is stored, or any server, computer or database connected to the Website, or attack the Website via a denial-of-service attack or a distributed denial-of service attack;
- modify another website so as to falsely imply that it is associated or affiliated with the Website;
- damage, disable, overburden, transmit any worms, bugs, trap doors, viruses, trojans, logic bombs or other material of a destructive nature or other harmful code or properties, or interfere with any other party's use and enjoyment of the Website;
- violate any applicable laws, rules or regulations in Canada or in your province of residency or the province from which you access the Website;
- use any automatic or manual conduct, device, process, software, program, algorithm, methodology or routine, including but not limited to a "robot," "spider" or other similar process or functionality to interfere (or attempt to interfere) with, damage, disable or impose an unreasonable burden or load on, the operation of the Website; or
- use the Website for any illegal, obscene, abusive, offensive, harassing, improper or objectionable purpose, to sell or offer to sell any goods or services, to conduct or forward surveys, contests, or chain letters, or for any purpose that is prohibited by these Terms and Conditions.
For any portion of the Website that requires a user name and/or password, you are responsible for all use of your account (under any user name or password) and for ensuring that all use of your account complies fully with the provisions of these Terms and Conditions. You shall be responsible for protecting the confidentiality of your user name(s) or password(s), if any.
You agree to defend, indemnify and hold harmless TOMS®, its officers, directors, employees, agents, licensors, suppliers, vendors, manufacturers, and distributors from and against any and all claims, actions, demands, charges, complaints, damages, losses, liabilities, costs and expenses (including but not limited to attorneys' fees), arising from or in connection with: (a) your use of the Website; (b) any Content submitted, posted, or otherwise provided by you to the Website, TOMS®, and/or its agents, third party licensors or licensees, (c) your breach of any provision of these Terms and Conditions or any representations you provide herein, and/or (d) your use of the Website or purchase of any products or services from the Website. TOMS® reserves the right to take exclusive control and defense of any claim subject to this indemnification by you, in which event you will cooperate fully with TOMS® in asserting any and all available defenses.
14. DISCLAIMER AND EXCLUSIONS; WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE WEBSITE, CONTENT, PRODUCTS AND/OR SERVICES ON THE WEBSITE ARE PROVIDED "AS IS" AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TOMS® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO,WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY AND NON-INFRINGEMENT. TOMS® DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES THE WEBSITE AVAILABLE ARE FREE FROM VIRUSES OR ANYTHING ELSE HARMFUL. FURTHER, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TOMS® MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, ADEQUACY, USEFULNESS, RELIABILITY, OR COMPLETENESS OF THE WEBSITE, PRODUCTS, SERVICES, CONTENT, THE CONTENT OF ANY THIRD-PARTY WEBSITE LINKED TO OR FROM THIS WEBSITE, USER GENERATED CONTENT, SUBMISSIONS, INFORMATION, GIVING INFORMATION MADE BY TOMS® OR ITS GIVING PARTNERS, INFORMATION PROVIDED BY OUR MARKETPLACE VENDORS, OR ANY OTHER ITEMS OR MATERIALS ON THE WEBSITE OR LINKED TO OR FROM THE WEBSITE.
TOMS® ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) , EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6 OF THESE TERMS AND CONDITIONS, ERRORS, MISTAKES OR INACCURACIES OF THE CONTENT, PRODUCTS, SERVICES, INFORMATION, WEBSITE AND MATERIALS SET FORTH ON OR MADE AVAILABLE THROUGH THE WEBSITE, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE, PRODUCTS, SERVICES OR ANY THIRD PARTY WEBSITE(S), PRODUCTS OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS THAT HOST THE WEBSITE OR ANY THIRD PARTY WEBSITE(S) AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR THIRD PARTY WEBSITE(S), (E) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR ANY THIRD PARTY WEBSITE(S) BY TOMS® OR ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN THE NETWORK OR ANY CONTENT, INFORMATION AND MATERIALS (INCLUDING BUT NOT LIMITED TO THIRD PARTY WEBSITE(S)) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF THE FOREGOING.
NO PERSON (INCLUDING ANY AGENT, DEALER OR REPRESENTATIVE OF TOMS®) IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS EXCEPT TO REFER YOU TO SECTION 6 OF THESE TERMS AND CONDITIONS, AND YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY OTHER WARRANTIES OR REPRESENTATIONS.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL TOMS® OR ITS OFFICERS, DIRECTORS, EMPLOYEES,AGENTS, LICENSORS, SUPPLIERS, VENDORS, MANUFACTURERS OR DISTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, SAVINGS, REVENUE OR PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY OR GOODWILL, ARISING FROM OR IN CONNECTION WITH (A) THE USE OF, OR INABILITY TO USE, THE WEBSITE; (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, PRODUCTS, MATERIALS, CONTENT, OR SOFTWARE AVAILABLE FROM, ON OR THROUGH THE WEBSITE OR ANY THIRD-PARTY WEBSITE(S); OR (C) THE CONDUCT OF OTHER USERS OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF TOMS® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME COMPLETE RESPONSIBILITY FOR YOUR USE OF THE WEBSITE. YOUR SOLE REMEDY AGAINST TOMS® FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THAT SAID, IF TOMS® IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS ARISING OUT OF OR WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE, ANY CONTENT, OR PURCHASE OF ANY PRODUCTS OR SERVICES ON OR THROUGH THE WEBSITE, TOMS®’s LIABILITY SHALL NOT EXCEED $100.00 CDN IN THE AGGREGATE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THE ABOVE LIMITATIONS OR EXCLUSIONS NOTED IN SECTIONS 14 AND 15 MAY NOT APPLY TO YOU.
16. Title to Products
The title to any product(s) ordered through this Website shall transfer to you upon our delivery to the shipping carrier.
17. Gift Cards & Store Credit
TOMS® physical and electronic gift cards (collectively, the "Gift Card(s)") may only be redeemed towards the purchase of eligible items on the Website. Please treat your Gift Cards like cash -- we are not responsible if a Gift Card is lost, stolen, destroyed or used without your permission. Gift Cards may not be reloaded, resold, transferred for value or redeemed for cash, except to the extent required by law. Purchases made with a Gift Card will be deducted from the redeemer’s Gift Card balance and any unused balance will be available for future purchases. Purchase amounts that exceed the redeemer’s Gift Card balance will require that the remaining balance due be paid with another acceptable payment method. Gift Cards are not returnable, cancelable or exchangeable after purchase for cash, except in provinces where required by law. Gift Cards do not expire and we do not assess any service fees for non-use.
Gift Cards have other restrictions, including but not limited to:
- Coupons and other discounts or promotions may not be applicable to purchase Gift Cards.
- Gift Cards cannot be used to purchase other Gift Cards.
- Gift Cards cannot be returned.
- Gift Cards may only be applicable to purchase certain product(s) or services on the Website, or they may exclude the purchase of certain product(s) or services. Please see any applicable restrictions noted on your Gift Card or the applicable product(s) or promotion(s) for further details.
TOMS® store credit (the “Store Credit") may only be redeemed towards the purchase of eligible items on the Website. Any available Store Credit you may have will be automatically applied towards your next purchase. We are not responsible if Store Credit is lost, stolen, destroyed or used without your permission. Please note that store Credit is non-transferable. Purchases made with Store Credit will be deducted from your Store Credit balance, and any remaining unused balance will be available over for future purchases. Purchase amounts that exceed the redeemer’s available Store Credit balance will require that the remaining balance due be paid with another acceptable payment method. Store Credit does not expire and we do not assess any service fees for non-use.
TOMS® reserves the right to refuse, cancel or hold for review any orders or customer accounts using a Gift Card or Store Credit or any Gift Card or Store Credit mistakenly issued in an incorrect denomination, to bill alternative forms of payment for suspected fraud in connection with a Gift Card or Store Credit, or to take any other action in connection with a violation of this Section 17.
Please note that Gift Cards/Store Credits and their redemption are each subject to change in the sole discretion of TOMS®, at all times in accordance with applicable law.
Any and all offers or promotions advertised on this Site are void where prohibited, and are subject to any posted official rules applicable to such offers or promotions.
19. Consent Regarding Electronic Documents
By using this Website you consent to the exchange of information and documents between you and TOMS® over the Internet or by e-mail, and you agree that these Terms and Conditions, together with any related order transaction documents accepted by TOMS® in electronic form shall be the equivalent of an original written paper agreement between you and TOMS®. You further agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy legal requirements that such communications be in writing.
TOMS® may monitor the access to its Website and other activities in relation to its Website for quality control or any other purpose and may intervene in this regard. You consent to such surveillance and intervention should TOMS® elect to do so.
21. General Legal Provisions
These Terms and Conditions are effective unless and until terminated by either you or TOMS®. You may terminate these Terms and Conditions as they apply to you at any time by ceasing to use the Website. TOMS® may terminate these Terms and Conditions at any time immediately and without notice, and accordingly deny you access to the Website, for any reason in its sole discretion; however, the provisions in these Terms and Conditions that relate to intellectual property, indemnification, disclaimer, limitation of liability, and choice of law shall survive any termination of these Terms and Conditions.
These Terms and Conditions shall be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to any conflict of law provisions. Any dispute arising under these Terms and Conditions shall be resolved by the Provincial and Federal Courts and Tribunals sitting in the province of Ontario and you hereby irrevocably submit to the personal and exclusive jurisdiction and venue of these Courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Unless otherwise specified, the Website and Content are displayed solely for the purpose of promoting TOMS® products and services available in Canada. This Website is controlled and operated by TOMS® from its offices in California.
If any portion of these Terms and Conditions is held to be invalid or unenforceable, the invalid or unenforceable portion shall be modified in accordance with the applicable law with a provision that most closely reflects the intention of the original provision, and the remainder of these Terms and Conditions shall remain in full force and effect. The failure of TOMS® to insist upon or enforce strict performance by you of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right.
We may provide notice to you relating to the Website and/or these Terms and Conditions by sending an e-mail to your last known e-mail address, and any such notice shall be deemed given and received on the day it is sent. A printed version of these Terms and Conditions and of any notices given to you in electronic form or otherwise shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You agree that any cause of action that you may desire to bring arising out of or related to these Terms and Conditions and/or the Website must commence within one (1) year after the cause of action arises. You may not use the Website or export the Content in violation of applicable Canadian or U.S. export laws and regulations.
TOMS®’ performance of these Terms and Conditions is subject to existing laws and legal process, and nothing contained in this these Terms and Conditions is in derogation of TOMS®’ right to comply with law enforcement requests or requirements.
22. English Language
You expressly agree that these Terms and Conditions and all ancillary documents be drafted solely in English; vous consentez expressément à ce que ces termes et conditions et tous les documents y afférents soient rédigées en anglais seulement.
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