PLEASE READ THE FOLLOWING CAREFULLY.
“Content” means any expression fixed in a tangible medium and includes, without limitation, ideas, text, comments, video, audio, images, graphics, designs, drawings, animations, logos, trademarks, copyrights, information, data, software, scripts, tasks,
activities, and any intellectual property therein, any of which may be created, submitted, or otherwise made accessible on or through the Site and/or Services.
“Minor” means a person under the age of majority in the Manitoba.
“Services” means all services made available by Berscheids, including but not limited to services accessed through the Content or the Site.
Changes to Berscheids
Berscheids reserves the right, acting in its sole discretion and with or without prior notice to you, to do any of the following:
modify, suspend or terminate operation of, or access to, any portion, features or functions of the Site, Content or Services including, but not limited to, hours of availability, geographical availability and applicable policies or terms;
make changes to any fees or charges, if any, related to your use of the Site, Content or Services;
make changes to the equipment, hardware or software required to use and access the Site, Content or Services; and
interrupt the Site, Content or Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction or other modifications.
Updates and Discontinuance of Site or Services
Berscheids reserves the right, at any time and without notice or liability to you, to update, modify or reset certain parameters of the Site or Services any of which may impact your use of the Site and/or Services.
Laws and Regulations
Your access to and use of the Site, Content or Services is subject to all applicable international, federal, provincial, state and local laws and regulations.
USE OF SERVICES AND YOUR ACCOUNT
Your Account and Security
You are responsible for protecting the confidentiality of your Login Information, and for restricting access to your computer, mobile device or media system platform, and you agree to accept responsibility for all activities that occur under your Account. You are not permitted to share your Account(s) or Login Information or to allow any other person to access to your Account(s). You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Login Information or your Account(s), or any other security breach involving your Account(s) or the Site or Services at email@example.com. We are not responsible for any unauthorized access of your Account(s) or Login Information even if you have advised us of such. You are responsible for all activities that occur under your Account(s), including but not limited to purchases, whether or not such activities have been authorized by you. Berscheids has implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
As a condition of your use of this Site, you warrant to Berscheids that you will not use the Site for any purpose that is unlawful or prohibited by these terms, conditions and notices. You may not use the Site in any manner which could damage, disable, overburden or impair the Site or interfere with any other party’s use and/or enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through Site.
Accessing your Account(s)
Each time that you log into and access an Account, you represent and warrant that:
you are the person who registered the Account;
all of the personal information registered in connection with the Account is current, complete and accurate;
you are accessing the Site or Services solely for your own personal, non-commercial purposes;
you are not, and are not acting on behalf of, any competitor or prospective competitor of Berscheids or its affiliates or subsidiaries; and
you are not accessing the Site or Services for the purposes of any dispute or litigation involving Berscheids.
Service Monitoring and Suspension
Berscheids may monitor, terminate or suspend your Account or our Services at any time.
You acknowledge and agree that any termination or suspension of your Account may be made by us in our sole discretion and that we shall not be liable to you or any third-party for any termination or suspension of your Account or your access to the Site or Services.
Consent to Receive Electronic and Telephone Communications
You consent to receive telephone communications from Berscheids and electronic communications either in the form of email, SMS or other forms of electronic messages sent to you at the addresses and accounts listed on your Account or by communications posted on or notifications through the Site (collectively, “Electronic Communications”). You acknowledge and agree that any Electronic Communication shall satisfy any legal requirement that such communication or notification be in writing.
Upon registering an Account, you may receive Electronic Communications regarding the operations of our Services. You cannot opt out of receiving these communications while you continue to use our Services. You may also receive promotional Electronic
Communications while you use our Services.
You can opt out of these Electronic Communications at any time by using the unsubscribe feature located in the footer of such Electronic Communications, where applicable, or by managing your Account settings accordingly. You cannot opt out of Electronic Communications in the form of general notices on the Site to all users.
Text and Mobile Messaging Consents
Without limiting the generality of the foregoing, by using the Site and the Services you agree that we may communicate with you regarding our Site or Services or respond to your communications to us through the Services by Electronic Communications, including SMS, MMS, text message or other electronic means. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
We take feedback very seriously. If you have any concerns regarding Berscheids or our services, please call us at 1-204-623-3930 or email us at firstname.lastname@example.org. We will respond promptly to follow up.
DEVICES AND MOBILE SERVICES
The Site may be available through certain mobile or other personal electronic devices. You acknowledge and agree that Berscheids is not responsible for ensuring that your device’s software is compatible with the Site or that you can use or access the Site or the Services through your particular device. If you are accessing the Services or the Site through a mobile device, you should check with your carrier to understand what voice, data and messaging rates will apply.
INFORMATION COLLECTION, OWNERSHIP AND USE
Transmission of Personal Data
Berscheids welcomes your ideas, suggestions and recommendations for Site features, functionality and enhancements (“Feedback”). Any Feedback you provide to Berscheids will be deemed non-confidential and Berscheids will be free to use such Feedback without restriction and without any compensation or obligations to you.
TERMS OF SALE
All advertisements on the Site are invitations to purchase and are not offers to sell. Berscheids reserves the right, at its sole discretion, to accept or reject the order once you have completed and submitted your order.
You will receive online confirmation that your order has been received by Berscheids after you submit your order on this Site. This online confirmation that your order has been received by Berscheids does not constitute acceptance of your order. Rather, the confirmation of acceptance, rejection or cancellation of your order will be delivered via an automatic e-mail to the e-mail address associated with your account.
Rejections or Cancellations
There may be certain orders that Berscheids must reject before acceptance or cancel after acceptance. Berscheids reserves the right at any time after receipt of your order to accept or reject your order for any reason and Berscheids will contact you at the e-mail address provided in the order form of its decision to accept or reject your order. In the event that Berscheids rejects your order, Berscheids will have no obligation to fulfill your order and you will have no obligation to pay Berscheids for the order. Berscheids also reserves the right, at its sole discretion, to cancel any order after acceptance for any reason. Some situations that may result in your order being rejected or cancelled include, without limitation:
1. Limitations on product quantities available for purchase;
2. Inaccuracies or errors in published product or pricing information;
3. A product recall on the item that you have ordered; or
4. Problems identified by Berscheids’ credit and fraud avoidance
Berscheids may also require additional verifications or information from you before accepting any order. Berscheids will contact you if all or any portion of your order is rejected after your order has been placed but before it is accepted by Berscheids or if additional information is required to accept your order.
Availability and Limitation of Products
The purchase of products on the Site is subject to availability. In the event that Berscheids advises you that any products are no longer available, Berscheids will have no obligation to provide such products and you will have no obligation to pay Berscheids for such products.
If Berscheids changes its price between the time you place your order and when your item is available for pick-up or delivery, you will be charged the price in effect at the time your order is processed. Taxes will apply as of the date of pick-up or delivery.
In the event that an item is listed at an incorrect price due to an error in pricing, Berscheids will have the right, at Berscheids’ sole discretion, to reject or cancel any orders placed for that item. In the event that an item is mispriced, Berscheids may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation.
For your convenience, the Site lists products that are carried in Berscheids’ brick-and-mortar location. Please note that products available for online purchase on the Site will be priced the same as those available at Berscheids’ brick-and-mortar location. Berscheids’ brick-and-mortar location will honor prices offered on the Site, unless the prices on the Site are incorrect as set out above, in which event Berscheids reserves the right to decline to sell that item to you in the store at the price indicated on the Site.
Quantity Limits and Dealer Sales
When you make a purchase, you must designate and provide information about your preferred payment method, including any applicable credit card information (“Payment Method”). When you provide any payment account information to Berscheids, you represent to Berscheids that you are the authorized user of that payment account.
Method the appropriate fees charged for the purchases you elect to make. All fees due for purchases are payable at the time of purchase, and will be billed automatically to the Payment Method when the purchase is made.
Use by Minors
The Site is designed for and intended for use by adults. If you are under the age of majority in the jurisdiction where you reside, you may use the Site only with involvement of a parent or guardian. If you are a parent or legal guardian, you must monitor and supervise the use of the Site by minors and others under your care or with access to computers and/or other electronic devices used to access the Site. You agree to be responsible for their use of the Site, whether or not such use is in conjunction with your personal account login.
Additionally, you are fully responsible for:
1. the online conduct of an authorized minor;
2. controlling the authorized minor’s access to and use of this Site and Services;
3. the consequences of any misuse of this Site and any Services by the authorized minor; and
4. any purchases made by the authorized minor.
CONTENT OWNERSHIP AND USE
Trademarks, Logos and Berscheids’s Branding
The trademarks, logos, signs, symbols, images and brands (“Marks”) displayed on the Site are the property of Berscheids or our third party licensors. You are prohibited from using any Marks for any purpose including, but not limited to, use as metatags on other pages or sites on the Internet without the written permission of Berscheids or such third party which may own the Marks, which permission may be withheld in the sole discretion of the owner of the relevant Marks. All Content available on or through the Site or Services is protected by intellectual property laws. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content for commercial or public purposes.
Limited End User License
End-User License Term
LINKED SITES AND THIRD PARTY SERVICES
Berscheids prohibits caching unauthorized hypertext links to the Site and the framing of any Content available through the Site. Berscheids reserves the right to disable any unauthorized links or frames and specifically disclaims any responsibility for the Content available on any other Internet sites linked to the Site. Access to any Linked Sites is at your own risk. You should be aware that Linked Sites may contain rules and regulations, privacy provisions, confidentiality provisions, transmission of personal data provisions, and other provisions that differ from those provided on the Site. Berscheids is not responsible for the policies, practices, condition and operation of any Linked Sites, and expressly disclaims any and all responsibility and liability to you if you access or use a Linked Site.
Services not Controlled by Berscheids
Some of the Content or Services may be accessible, or give you the ability to use such Content or Services, on or through a website, service or device not controlled by Berscheids. For example, you may have the option to use the Content or Services online on servers not owned or controlled by Berscheids, or Berscheids may make the Content or Services available through servers that are not owned or controlled by Berscheids. Berscheids takes no responsibility for your access to or use of the Content or Services through or on any third party device or service not controlled by Berscheids and otherwise has no control over how such services are offered, administered or operated. Any such use of services not controlled by Berscheids is at your own risk and may subject you to additional or different terms and conditions imposed by the third party that owns and controls such services.
WARRANTIES AND LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ALL CONTENT, PRODUCTS AND SERVICES ON OR THROUGH THE SITE, CONTENT OR SERVICES OR OBTAINED FROM A WEB SITE TO WHICH THE SITE IS LINKED (A “LINKED SITE”), ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY
WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. BERSCHEIDS DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH THE SITE, CONTENT, SERVICES OR A LINKED SITE BY ANY PARTY OTHER THAN BERSCHEIDS, OR THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. EXCEPT AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL BERSCHEIDS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE OR A LINKED SITE, OR A USER’S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT. SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES AND THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU TO THE EXTENT DISCLAIMED.
Limitation of Liability for Use of the Site, Content and Linked Sites
THE INFORMATION, CONTENT, SERVICES, PRODUCTS AND DESCRIPTIONS OF CONTENT OR SERVICES PUBLISHED ON THE SITE OR A LINKED SITE, OR INCLUDED IN THE CONTENT OR SERVICES, MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, BERSCHEIDS SPECIFICALLY DISCLAIMS ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. CHANGES ARE PERIODICALLY MADE TO THE INFORMATION ON THE SITE OR LINKED SITES OR CONTAINED IN THE CONTENT OR SERVICES. BERSCHEIDS MAY MAKE IMPROVEMENTS OR CHANGES TO THE SITE, CONTENT OR SERVICES AT ANY TIME.
YOU AGREE THAT BERSCHEIDS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY OR UNDER ANY OTHER LEGAL THEORY, FOR ANY PERSONAL INJURY, LOSS, ACCIDENT OR DEATH OR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THE USE OF
THE SITE, CONTENT, SERVICES OR A LINKED SITE, OR FOR ANY DELAY OR INABILITY TO USE THE SITE, CONTENT, SERVICES OR A LINKED SITE, EVEN IF BERSCHEIDS IS MADE AWARE OF THE POSSIBILITY OF SUCH INJURY, LOSS, ACCIDENT, DEATH OR DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES, MALWARE OR MALICIOUS SOFTWARE WHICH MAY INFECT A USER’S EQUIPMENT OR DEVICES, FAILURE OF THE CONTENT OR SERVICES TO BE COMPATIBLE WITH YOUR HARDWARE OR SOFTWARE, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION OR INTERCONNECT LINES OR FIBER, OR OTHER CONNECTIVITY PROBLEMS (e.g., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, LOSS OF DATA, OPERATOR ERRORS, STRIKES OR OTHER LABOUR PROBLEMS OR ANY FORCE MAJEURE EVENT. BERSCHEIDS CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, ERROR FREE OR SECURE ACCESS TO THE SITE, CONTENT OR SERVICES. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL BERSCHEIDS BE LIABLE TO YOU FOR ANY AMOUNT THAT EXCEEDS THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO BERSCHEIDS.
APPLICABLE LAWS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, EVEN IF THIS IS THE CASE, IN NO EVENT SHALL THE TOTAL LIABILITY OF BERSCHEIDS FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR UNDER ANY OTHER LEGAL THEORY, RELATED TO YOUR USE OF, OR THE INABILITY TO USE, THE SITE, CONTENT OR SERVICES EXCEED THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO BERSCHEIDS.
Limitation of Liability for Services Arranged Through the Site
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL BERSCHEIDS BE LIABLE FOR ANY LIABILITY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, EQUITY OR ANY OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN CONNECTION WITH OR RELATING IN ANY MANNER TO THE GOODS OR SERVICES OFFERED, PURCHASED OR SOLD THROUGH THE SITE, THEIR USE, SUITABILITY OR AVAILABILITY (INCLUDING THE INABILITY TO USE), OR OTHER ANY TRANSACTION CONDUCTED ON THIS WEBSITE, INCLUDING WITHOUT
LIMITATION LIABILITY FOR ANY ACT, ERROR, OMISSION, INJURY, LOSS, ACCIDENT, DELAY OR IRREGULARITY, NEGLIGENT OR OTHERWISE, AND YOU HEREBY IRREVOCABLY WAIVE, RELEASE, AGREE NOT TO SUE, AND FOREVER DISCHARGE BERSCHEIDS AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY LIABILITY WITH RESPECT TO THE SAME. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL BERSCHEIDS BE LIABLE TO YOU FOR ANY AMOUNT THAT EXCEEDS THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO BERSCHEIDS.
APPLICABLE LAWS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. HOWEVER, EVEN IF THIS IS THE CASE, IN NO EVENT SHALL THE TOTAL LIABILITY OF BERSCHEIDS FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), IN EQUITY OR UNDER ANY OTHER LEGAL CAUSE OF ACTION, RELATED TO YOUR USE OF, OR THE INABILITY TO USE THE SITE, CONTENT OR SERVICES EXCEED THE AGGREGATE OF ALL AMOUNTS PAID BY YOU TO BERSCHEIDS.
WITHOUT DEROGATING FROM OR EXCUSING YOUR OBLIGATIONS UNDER THIS SECTION WE RESERVE THE RIGHT (AT YOUR EXPENSE), BUT ARE NOT UNDER ANY OBLIGATION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER WHICH IS SUBJECT TO AN INDEMNIFICATION BY YOU EVEN IF YOU CHOOSE TO DEFEND OR SETTLE IT. YOU AGREE NOT TO SETTLE ANY MATTER THAT IS SUBJECT TO AN INDEMNIFICATION BY YOU WITHOUT FIRST OBTAINING OUR EXPRESS APPROVAL.
Any arbitration to be conducted pursuant to this “Dispute Resolution” section where Berscheids is a party shall be conducted be conducted by a single, qualified arbitrator, in accordance with the National Arbitration Rules of the ADR Institute of Canada, Inc. pursuant to The Arbitration Act (Manitoba).
Waiver and Severability