FLOORCOVERINGS INTERNATIONAL, LTD.
I.Acceptance of Terms
IMPORTANT NOTICE REGARDING ARBITRATION: PURSUANT TO THESE TERMS, THE PARTIES ARE AGREEING TO MANDATORY ARBITRATION THAT REQUIRES THE PARTIES RESOLVE ANY DISPUTE BETWEEN THEM THROUGH FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, AND REQUIRING THE PARTIES TO FOREGO JURY TRIALS, CLASS ACTIONS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY AND EVERY KIND. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THESE PROVISIONS RELATING TO ARBITRATION AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THESE PROVISIONS.
Mandatory Binding Arbitration of Disputes. The parties agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or arising in connection with the Platform or in connection with the relationship between the parties relating in any way to any of the foregoing (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a court of law in any jurisdiction and not in a class, representative or consolidated action or proceeding.
Arbitration Agreement. The provisions set out in this Section II shall be referred to as the “Arbitration Agreement” in these Terms.
Reason for Arbitration. The parties have chosen to resolve Disputes through arbitration as set out in the Arbitration Agreement to ensure that any Dispute between the parties is resolved in an expedient and cost-effective manner. Both parties agree and acknowledge that while the arbitration process may not have all the benefits of having a matter resolved through the courts the parties have decided that time and cost considerations are paramount, and on that basis, the parties are willing to forego any additional benefits that may be available by having any Dispute resolved through the courts.
Class Action and Jury Waiver. YOU AND FLOOR COVERINGS INTERNATIONAL AGREE THAT EACH PARTY IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND FLOOR COVERINGS INTERNATIONAL AGREE IN WRITING, YOU AND FLOOR COVERINGS INTERNATIONAL MAY BRING CLAIMS AGAINST THE OTHER ONLY BY WAY OF ARBITRATION AND ONLY IN YOUR AND ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is to be resolved through arbitration, the Arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If the foregoing sentence is found to be unenforceable, then the entirety of this section (Class Action and Jury Waiver) of the Arbitration Agreement shall be null and void. This arbitration provision shall survive termination of these Terms.
Arbitration Act and Rules. You and Floor Coverings International agree that the Arbitration Act of Ontario (the “AA”) will govern the interpretation, applicability, validity, enforceability and formation of the Arbitration Agreement, including any claim that all or any part of the Arbitration Agreement is void or voidable, notwithstanding any choice of law or other provision in these Terms. The parties agree that the AA and the Canadian Arbitration Association Arbitration Rules (the “Rules”) of the Canadian Arbitration Association shall pre-empt all provincial laws with respect to the Arbitration Agreement to the fullest extent permitted by law. If the AA and the Rules are found to not apply to any issue that arises under the Arbitration Agreement or the enforcement thereof, then the laws of the Province of Ontario shall apply, without regard to its conflict of laws provisions.
Arbitrator. You and Floor Coverings International further agree that the arbitrator (“Arbitrator”), and not any federal, provincial, or local court or agency, shall have exclusive authority to resolve any Disputes concerning the interpretation, applicability, enforceability or formation of the Arbitration Agreement. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Arbitration Specifics. The arbitration will be referred to and finally resolved by arbitration by the Canadian Arbitration Association under the Rules then in effect, except as modified by the Arbitration Agreement.
The arbitration shall take place in Toronto, Ontario. The arbitral tribunal shall consist of one arbitrator. If the parties are unable to agree on an arbitrator, then one shall be appointed in accordance with the Rules. The language of the arbitration shall be in English. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties.
Injunctive Relief. Nothing herein shall preclude any party from seeking injunctive relief in the event that the party perceives that without such injunctive relief, serious harm may be done to the party. Nothing herein precludes the parties from first attempting to have the matter resolved through mediation, although neither party shall be required to submit to mediation.
Changes to Arbitration Agreement. Notwithstanding the provisions of Section XVI “Changes to Terms” below, in the event there are any changes to this Section II, and therefore the Arbitration Agreement, after notice of a Dispute has been delivered by one party to the other then the version of the Arbitration Agreement in effect at the time of the notice shall be the version of the Arbitration Agreement that governs the arbitration of the Dispute.
III.Intellectual Property Rights
Definitions. For purposes of these Terms: (i) “Content” means text, photographs, graphics, images, videos, logos, data, software, music, audio, works of authorship of any kind, information and any other material; and (ii) “User Content” means any Content that users of the Platform (including you) may create, generate, upload, post, store, display or otherwise make available in connection with the Platform; and (iii) “Floor Coverings International Content” means any Content, other than User Content, that Floor Coverings International may create, generate, upload, post, store, display or otherwise make available in connection with the Platform, including Floor Coverings International trademarks, service marks and copyrights, whether owned by or licensed to Floor Coverings International.
License Granted by Floor Coverings International. Subject to your compliance with these Terms, Floor Coverings International grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to access and use the Platform and to access and use the Content solely in connection with your permitted use of the Platform, and solely for your personal and non-commercial purposes.
All Other Rights Reserved. Floor Coverings International expressly reserves all intellectual property rights in the Floor Coverings International Content and the Platform. Other than the limited license granted in the previous paragraph, nothing contained within the Platform grants or should be construed as granting any license or right to use the Floor Coverings International Content or the Platform for any purpose without the express written consent of Floor Coverings International.
IV.Ownership, Responsibility, and Removal
Our Content Ownership. Floor Coverings International does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Floor Coverings International and its licensors exclusively own all right, title and interest in and to the Platform and Floor Coverings International Content, including all associated intellectual property rights. You acknowledge that the Platform and Floor Coverings International Content are protected by copyright, trademark, and other laws of Canada, the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform or Floor Coverings International Content.
Rights in User Content Provided by You. By making any User Content available through the Platform, you hereby grant to Floor Coverings International a non-exclusive, irrevocable, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify (for formatting purposes only), distribute, publicly display and publicly perform your User Content in connection with the operation of the Platform.
Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use or the provision of your User Content through the Platform, nor any use of your User Content by Floor Coverings International on or through the Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Removal of User Content. User Content may continue to exist on the Platform. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Prohibited Use of the Platform. You may use the Platform only for lawful purposes and in accordance with these Terms. You may not use the Platform:
to violate any applicable law or regulation;
to infringe the rights of any third party, including without limitation, intellectual property, privacy, or contractual rights;
for any purpose that is unlawful or prohibited by these Terms;
to cause harm or damage to any person or entity;
to interfere with the proper operation of the Platform; or
to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, threatening, obscene or otherwise objectionable material (as determined by Floor Coverings International in its sole discretion).
Prohibited Activities. You agree that you will not, directly or indirectly, and will not permit any third party to, directly or indirectly, in any manner whatsoever:
use, copy, broadcast, distribute, upload, post or share any Floor Coverings International Content or any part of the Platform in any way except in connection with the permitted uses of the Platform;
rent, lease, loan, license or sublicense any of the Floor Coverings International Content or the Platform or permit any third party to access any Floor Coverings International Content or the Platform, in any manner whatsoever;
modify, enhance, create adaptations or derivative works of any of the Floor Coverings International Content or the Platform;
assign these Terms or otherwise transfer any App to any third party;
disassemble, decompile, reverse engineer or otherwise attempt to generate any source code for any of the Platform;
permit any Floor Coverings International Content or any of the Platform to be used for the benefit of any third party; or
use any of the Floor Coverings International Content or the Platform except as authorized herein and only as described in any associated documentation.
Service-Bureau Services. You may not use or permit the use of any of the Platform for the benefit of any third party, including without limitation, to provide service-bureau, software rental, subscription service, time-sharing, outsourcing, application service provider or any other type of services for the benefit of any third party.
Compliance with Laws. You acknowledge that you are solely responsible for compliance with all applicable laws and regulations concerning your use of the Platform. We do not represent or warrant that the Platform or its use is in compliance with all applicable laws and regulations and specifically disclaims all such representations, warranties and conditions.
You will ensure you are in full compliance with all applicable privacy law in relation to any personal information provided to Floor Coverings International for Floor Coverings International to conduct all activities as contemplated in these Terms. In particular, you will obtain any consents or provide any notifications as required by privacy law.
THE PLATFORM AND CONTENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND FLOOR COVERINGS INTERNATIONAL DISCLAIMS ALL WARRANTIES AND CONDITIONS THAT MAY OTHERWISE ARISE UNDER STATUTE.
FLOOR COVERINGS INTERNATIONAL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE AVAILABILITY, USE, TIMELINESS, SECURITY, VALIDITY, ACCURACY, OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE, THE PLATFORM OR THE CONTENT.
ANY CONTENT VIEWED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT, OR USE OF THE PLATFORM. INFORMATION PUBLISHED THROUGH THE PLATFORM MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE OR PERMITTED IN YOUR JURISDICTION.
IX.Limitation of Liability
IN NO EVENT WILL FLOOR COVERINGS INTERNATIONAL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITY, GOODWILL, ANTICIPATED SAVINGS OR DATA OR CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE FAILURE OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE PLATFORM OR ANY CONTENT, ANY WEBSITES LINKED TO FROM THE PLATFORM, OR THE MATERIALS OR INFORMATION OR SERVICES OR PRODUCTS OBTAINED FROM OR THROUGH ANY SUCH WEBSITES OR ARISING IN CONNECTION WITH ANY PRIVACY OBLIGATION WE MAY HAVE, WHETHER STATUTORY OR OTHERWISE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE CONTENT, MATERIALS, INFORMATION FROM THE PLATFORM RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN ALL CIRCUMSTANCES, FLOOR COVERINGS INTERNATIONAL’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT OR OTHERWISE, ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE PLATFORM, ITS CONTENT OR LINKS OR IN CONNECTION WITH ANY PRIVACY OBLIGATIONS SHALL NOT EXCEED THE AMOUNT YOU PAID TO USE THE PLATFORM OR CAD $10.00, WHICHEVER IS HIGHER.
THE LIMITATIONS AND DISCLAIMERS IN THESE TERMS DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
X.Governing Law and Jurisdiction
These Terms shall be construed under the laws of the Province of Ontario, which shall control without regard to its conflict of laws provisions. Subject to Section II, any action arising out of or relating to these Terms shall be commenced and concluded only in the courts of Province of Ontario.
Floor Coverings International, in its sole discretion, may terminate or restrict your use or access to the Platform for any reason, including, without limitation, if Floor Coverings International believes you have violated or acted inconsistently with these Terms. Upon any termination, discontinuation, or cancellation of the Platform, the following provisions of these Terms will survive: Sections II, IV, VIII, IX, X and XIV.
Floor Coverings International’s failure to enforce any portion of the Terms shall not constitute a waiver of any of its rights under these Terms.
Except as set forth in Section II, “Class Action and Jury Waiver,” in the event that any provision or part of any provision in these Terms is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful provision or portion thereof shall be severed from these Terms; severance of the unenforceable or unlawful provision or portion thereof shall have no impact whatsoever on the remainder of these Terms or the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS FLOOR COVERINGS INTERNATIONAL AND ITS PRESENT AND FORMER OFFICERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, DIRECTORS, FRANCHISEES, AGENTS, SERVANTS, REPRESENTATIVES, PARENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF THE PLATFORM IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE ANY APPLICABLE LAW OR THESE TERMS.
XV.Delays and Accessibility
The Platform may be subject to limitations, delays, failures or other problems associated with the use of the Internet and electronic communications. From time to time, we may restrict access to all or some parts of the Platform. Floor Coverings International is not liable if the Platform is unavailable at any time for any reason.
XVI.Changes to Terms
From time to time, we may change these Terms to accommodate new technologies, industry practices, regulatory requirements or for other purposes in our sole discretion. You are advised to check the Terms regularly, as continued use is deemed to be approval of and consent to all such changes.
XVII.Changes to the Platform
We may update the Platform and Content available through the Platform from time to time, but its Content is not necessarily complete or up-to-date. The Platform and its Content may be out of date, and Floor Coverings International makes no commitment to update the Platform and its Content.
These Terms constitute the entire integrated and exclusive agreement between you and Floor Coverings International with respect to the Platform and the relationship of the parties arising in connection with the Platform and supersede all prior understandings, agreements, representations and warranties, both written and oral, with respect to the same.
XIX.Comments and Questions
If you have a comment or question about these Terms, please contact us at email@example.com.
Last Modified: September 10, 2021.