TERMS and CONDITIONS
Customer understands that Seller is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Seller or its Affiliates. In purchasing the Products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Seller or its Affiliates. SELLER AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY. Customer expressly waives any claim that it may have against Seller or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from Seller or its Affiliates against any such Claim made against Customer by a third party. Customer acknowledges that no employee of Seller or its Affiliates is authorized to make any representation or warranty on behalf of Seller or any of its Affiliates that is not in this Agreement.
Seller warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and Seller's entire liability with respect to this warranty will be, at the sole option of Seller, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies Seller in writing within five (5) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS SELLER'S WARRANTY, AND SUBJECT TO APPLICABLE LAW, SELLER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF SELLER OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SELLER OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING SELLER'S WARRANTY.
Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. SELLER, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.
Seller will not be responsible for and no liability shall result to Seller or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond Seller’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by Seller or any purported deadlines contained in a Statement of Work or any other document are estimates only.
Pricing Information; Availability Disclaimer
All prices are in CANADIAN DOLLARS. Seller reserves the right to make adjustments to pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, Seller cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being performed on a time and materials basis, any estimates provided by Seller are for planning purposes only.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR EMPLOYEES, DIRECTORS, OFFICERS, SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $500.00.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Products sold and the Services provided pursuant to this Agreement, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller's or any of its Affiliates' advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the National Arbitration Rules of the ADR Institute of USA, Inc. If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in this Agreement, this arbitration agreement is subject to the Arbitration Act, 1991 (Ontario), as amended. The arbitration will take place exclusively in Toronto, Ontario. The language of the arbitration shall be conducted in English. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.
Customer's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that Sellers may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Limitation of Liability
Under no circumstances will CLOUDTORONTO USA or its affiliates have any liability with respect to any claims or damages (whether direct or indirect, special, incidental, consequential or punitive) as a result of your access or use of (or inability to access or use) the Website or its content, even if they have been advised of the possibility of such damages. You access and use this Website at your own risk.
Accuracy of Information and Disclaimer of Warranty
CLOUDTORONTO USA has made every effort to present the content on the Website accurately, but additions, deletions and changes may occur. Content on the Website is provided "as is" and "as available"; neither CLOUDTORONTO USA nor its affiliates or their representatives make any representation or warranty of any kind or nature, either express or implied, with respect to the content.
CLOUDTORONTO USA and its representatives specifically disclaim, to the fullest extent permitted by law, any and all warranties, express or implied, relating to the Website or its content, including but not limited to, implied warranties of merchantability, completeness, timeliness, correctness, noninfringement, or fitness for any particular purpose. You acknowledge that your access to the Website will not be free of interruptions, that the information contained on the Website may have errors or technical inaccuracies and that the Website may be unavailable from time to time.
Changes to the Terms and Conditions
CLOUDTORONTO USA may change these terms and conditions of use at any time, without prior notice. If you access or use the Website after CLOUDTORONTO USA posts a change, you accept that change. If you do not accept the change, do not access or use the Website. You should check these terms and conditions of use periodically.
Restrictions on Use of the Website
Except as expressly authorized above, you may not copy, modify, distribute, download, display, transfer, post, or transmit the Website or its content in any form without CLOUDTORONTO USA's prior written permission.
The following activities are also expressly prohibited and you agree to refrain from performing any of the following activities: any non-personal or commercial use; use of any robot, spider, other automatic device, or manual process to monitor or copy the Website or any of its content; "mirroring" or "framing" the Website or any content on any other server; collection or use of product listings, descriptions, or prices for a supplier of competitive or comparable products; use of any device or technology to provide repeated automated attempts to access password-protected portions of the Website; and any action that imposes an unreasonable or disproportionately large load on the Website or our infrastructure or otherwise interferes with the Website's functioning.
Posting and Transmitting to the Website
You may not post, upload, publish, transmit or otherwise distribute any unlawful, fraudulent, harassing, libelous, threatening, defamatory, sexually graphic, obscene, inflammatory, profane, or other inappropriate information or material of any kind which constitutes or encourages conduct that would constitute a criminal offence or give rise to civil liability.
You acknowledge that CLOUDTORONTO USA has the right, but no obligation, to monitor the Website and to disclose any information necessary to operate the Website, to protect its and its licensors and its customers, and to comply with legal obligations or governmental requests. CLOUDTORONTO USA reserves the right to edit or refuse to post or to remove any information on the Website, in whole or in part, for any reason.
Access and Use of the Website
CLOUDTORONTO USA grants you a limited license to access and use the Website, including to display, copy, distribute and download its content, only for your personal, non-commercial use and provided that you do not modify the Website, its content, or any copyright or other proprietary notices.
This license terminates automatically if you breach any of these terms and conditions of use. Upon termination, you must immediately destroy all copies of any content in your possession. You agree that CLOUDTORONTO USA may, in its sole discretion, terminate or suspend your access to all or part of the Website for any reason. Should you object to these terms and conditions of use or any subsequent modification, change or amendment thereto or become dissatisfied with the Website in any way, your only recourse is to immediately discontinue use of the Website.
Unauthorized use of the Website or any content may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
Links to Third Party Websites
The material provided on this Website is protected by law, including, but not limited to, Canadian copyright law and international treaties, trademarks, trade dress and/or other proprietary rights. The copyright in the content of the Website is owned by CLOUDTORONTO USA or others. Except for the limited rights granted above, all other rights are reserved.
The trademarks, logos, service marks and icons identifying the products and services (collectively the "Trademarks") displayed on the Website, are registered and unregistered Trademarks of CLOUDTORONTO USA, its affiliates and others, including CLOUDTORONTO USA or its affiliates licensors. Nothing contained on the Website should be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any Trademark displayed on the Website without CLOUDTORONTO USA's written permission or such others that may own the Trademarks displayed on the Website. Your misuse of the Trademarks displayed on the Website, or any other content on the Website, except as provided in this Agreement, is strictly prohibited. All trademarks are the property of their respective owners. Some images are courtesy of manufacturers.
Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and enure to the benefit of the parties hereto and their successors and permitted assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Seller and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
Orders are not binding upon Seller until accepted by Seller. Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to Seller as a result of using Customer's carrier account number. Terms of payment are within Seller's sole discretion. In connection with Services being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Customer will pay for the Services as invoiced by Seller. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Seller. Seller may invoice Customer separately for partial shipments, and Seller may invoice Customer for all of the Services described in a Statement of Work or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month, calculated daily, compounded monthly (19.56% per annum) or the highest rate allowed by law. Customer will pay for, and will indemnify and hold Seller and its Affiliates harmless from, any applicable sales, use, goods and services, transaction, excise or similar taxes and any federal, provincial, local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Statement of Work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Seller with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Seller’s costs of collection, including, but not limited to, court costs, filing fees and lawyers' fees. In addition, if payments are not received as described above, Seller reserves the right to suspend Services until payment is received. All references to money amounts are to lawful currency of USA.
Except as otherwise specified on an applicable Statement of Work, Customer will reimburse Seller for all reasonable out-of-pocket expenses incurred by Seller in connection with the performance of the Services, including, but not limited to, travel and living expenses.
If this transaction involves an export of items (including, but not limited to, commodities, software and/or technology) subject to the Export and Import Permits Act (USA), as amended, or Export Administration Regulations (United States), as amended, such items were exported from USA or the United States by Seller in accordance with such laws or regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to any federal, state or provincial laws in USA or the United States. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to Canadian or United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the Canadian or United States Government. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under Canadian or United States law to receive such items. In addition, manufacturers' warranties for exported Products may vary or may be null and void for Products exported outside of USA.
In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with Seller in connection with performance of the Services by providing (i) timely responses to Seller's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by Seller which are necessary or useful as determined by Seller in connection with providing the Services, including, but not limited to, physical and computer access to Customer's computer systems, and (iii) all Required Consents necessary for Seller to provide the Services. "Required Consents" means consents or approvals required to give Seller, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with Seller. Customer agrees that the Personnel are not, nor are they deemed to be, for any purpose, the employees of Seller. Customer is solely responsible for paying the Personnel's employment insurance, workers' compensation, income tax, health tax, pension deductions and remittances, vacation pay, and any other obligation arising out of employer-employee relations.
Seller will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Seller from time to time.
CLOUDTORONTO USA Inc. ("CLOUDTORONTO USA") is committed to protecting your privacy. That is because we base our business on the trust you place in us. This policy describes our practices regarding personal and account information collected through our Website. In this policy, "personal and account information" means your name, company name, account number, address, telephone number, and e-mail address plus other information that personally identifies you, including your industry, the number of employees at your company, and purchase history, and "we" and "us" means CLOUDTORONTO USA as well as its affiliated companies.
In the event a product is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, CLOUDTORONTO.us shall have the right to refuse or cancel any orders placed for products listed at the incorrect price without prior notification. CLOUDTORONTO.us shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and the order is cancelled, CLOUDTORONTO.us shall immediately issue a credit to the credit card account in the amount of the incorrect price.
There are NO returns for opened non-defective product. This follows all manufacturer policies and therefore no exceptions can be made. Before returning any defective item, it is necessary to contact our Customer Service Department for return instructions. No returns of any type will be accepted without a Return Merchandise Authorization (RMA) number. We accept no responsibility for products returned without an RMA number.