Tough Commerce Inc. (“Tough Commerce”) owns certain Software (as defined herein) that it has developed and makes commercially
available to its customers for use as a cloud based, hosted service offering (the “Tough Commerce Online Platform”,
as more fully defined below) together with one or more mobile applications (each a “Tough Commerce MobileApplication” or “App”).
In connection with the use of the Tough Commerce Online Platform you and/or your organization or corporation(the “User”)
hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).
THESE TERMS OF SERVICE APPLY TO ALL USERS OF THE TOUGH COMMERCE ONLINE PLATFORM, INCLUDING USERS WHO USE THE TOUGH COMMERCE
ONLINE PLATFORM, USERS WHO DOWNLOAD A TOUGH COMMERCE MOBILE APPLICATION AND USERS WHO SIMPLY VIEW THE CONTENT ON OR AVAILABLE
THROUGH THE TOUGH COMMERCE ONLINE PLATFORM OR AND APP.
BY ACCEPTING THE TERMS OF SERVICE, EITHER BY ACCEPTING THE TERMS OF SERVICE ONLINE OR USING, OR ACCESSING THE TOUGH COMMERCE ONLINE PLATFORM AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, THE USER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
IF, AFTER READING THE TERMS OF SERVICE, THE USER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE USER SHALL NOT USE, OR ACCESS THE TOUGH COMMERCE ONLINE PLATFORM.
IF YOU ARE AN AGENT OR EMPLOYEE OF THE USER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE IS DULY AUTHORIZED TO ACCEPT THESE TERMS OF SERVICE ON USER’S BEHALF AND TO BIND THE USER, AND (II) THE USER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THESE TERMS OF SERVICE AND PERFORM ITS OBLIGATIONS HEREUNDER.
In these Terms of Service:
“Account” means the User account for the Tough Commerce Online Platform or App pursuant to Section 4.1 hereof.
“Tough Commerce Mobile Application“ or “App” means Tough Commerce’s mobile application for accessing and using the Tough Commerce Online Platform.
“Tough Commerce Online Platform” means Tough Commerce’s proprietary hosted software-as-a-service offering comprised of the Tough Commerce Web Application and the Tough Commerce Mobile Application, which resides on a server operated by Salesforce.com, Inc. and which will be remotely accessible over the Internet by Users, together with any ancillary services available in connection therewith, as may be updated from time to time by Tough Commerce in its sole discretion.
“Tough Commerce Web Application” means the Software made available by Tough Commerce as a service at https://www.brokrete.com/,
or such other URLs or web sites owned or operated by Tough Commerce from time to time.
"Data Controller" means the natural or legal person who alone or jointly with others determines the purposes and means of the Processing of Personal Information.
"Data Processor" means the natural or legal person who processes Personal Information on behalf of the Data Controller.
“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada and the United States (including the Personal Information Protection and Electronic Documents Act (Canada),the Canadian Anti-Spam Legislation and the California Consumer Privacy Act (CCPA)), applicable to the Processing of Personal Information under these Terms of Service.
“Documentation” means the written or electronic documentation, including user guides,reference materials,
installation manuals and/or release notes, if any, that Tough Commercegenerally makes available to Users of the Tough Commerce Online Platform, as the case may be.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm,including,
for example, viruses, worms, time bombs and trojan horses.
“Personal Information” means any information relating to an identified or identifiable natural
person as defined under applicable Data Protection Laws.
“Process” or “Processing” means any operation or set of operations which is performed upon
Personal Information, whether or not by automatic means, such as collection,recording, organization,
structuring, storage, adaptation or alteration, retrieval,consultation, use, disclosure
by transmission, dissemination or otherwise making available, alignment or combination, restriction,
erasure or destruction.
“Products” means any construction materials and/or services offered by Supplier to User for purchase
and delivery through use of the Tough Commerce Online Platform.
“Software” means Tough Commerce’s proprietary software program in machine-readable object code format
and other related software, including the Documentation for such program(s).
“Supplier” means an entity that is in the business of selling construction materials and/or other
goods as configured on the Tough Commerce Online Platform and has entered into an agreement with Tough Commerce for
the sale and delivery of Products to a User.
“Support” means the terms on which Tough Commerce provides technical support for the Tough Commerce Online Platform to User.
“User” means an individual or entity which has accepted these Terms of Service and created an Account to use the Tough Commerce Online Platform..
“User Data” means the data submitted by User to the Tough Commerce Online Platform or collected and
processed for User using the Tough Commerce Online Platform, including the data of User’s employees, contractors or customers, as applicable.
The Tough Commerce Online Platform
Right to Use the Tough Commerce Online Platform. Subject to the terms and conditions
of these Terms of Service, Tough Commerce hereby grants to User a non-exclusive, worldwide, non-transferable,
non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the Tough Commerce Online Platform;
and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary
to support the User’s permitted use of the Tough Commerce Online Platform.
Reservation of Rights. Tough Commerce and its licensors own and shall retain all right, title and interest
(including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all
other intellectual property rights), in and to the Software, Tough Commerce Online Platform and Documentation and
any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which
shall be deemed part of the Software and subject to all of the provisions of these Terms of Service.
User shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests.
Subject to the limited rights expressly granted in these Terms of Service, Tough Commerce reserves all rights,
title and interest in and to the Software and Documentation. No rights are granted to User pursuant to these
Terms of Service other than as expressly set forth in these Terms of Service.
Restrictions. User shall not (and shall not allow any third party to):
(a) possess, download or copy the Tough Commerce Online Platform or any part of the Tough Commerce Online Platform,
including but not limited any component which comprises the Tough Commerce Online Platform, but not including
any output from the Tough Commerce Online Platform; (b) knowingly interfere with service to any of Tough Commerce’s Users,
host or network, including by means of intentionally submitting a virus, overloading,
flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer,
decompile, disassemble, or create derivative works based on the Software, the Tough Commerce Online Platform and/or
Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any
timing restrictions that are built into the Tough Commerce Online Platform; (e) sell, rent,lend, transfer,
distribute, license, or grant any rights in the Tough Commerce Online Platform or Documentation
in any form to any person without the written consent of Tough Commerce; (f) remove anyproprietary notices, labels,
or marks from the Tough Commerce Online Platform or Documentation; (g) create any “links” to or “frame” or “mirror”
of the Tough Commerce Online Platform or any portion thereof;or (h) use the Tough Commerce Online Platform to create,
collect, transmit, store, use or process any UserData that: (i) User does not have the lawful right to
create, collect, transmit, store, use or process,or (ii) violates any applicable laws, or
infringes, violates or otherwise misappropriates the intellectual property or other rights of any
third party (including any moral right, privacy right or right of publicity).
Rights in Derivative Data. User acknowledges and agrees that the Tough Commerce Online Platform compiles,
stores and uses aggregated data and system usage, analytics and diagnostic information
to monitor and improve the Tough Commerce Online Platform and for the creation of new products. User hereby grants to
Tough Commerce a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect,
process and aggregate User Data and other such information and data and create anonymized, aggregated data
records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”)
to improve the Tough Commerce Online Platform, develop new products and services, to understand usage, and for any
other business purpose. This Derivative Data is no longer associated with User or a User and as such is not User Data.
Products, Delivery and Orders
Tough Commerce is not the retailer of any Products offered by Supplier on the Tough Commerce Online Platform. User
acknowledges that the Tough Commerce Online Platform is a booking platform and Tough Commerce is a third party to
any transaction between User and Supplier. Tough Commerce will not be responsible for any Products, nor will
Tough Commerce be liable for the quality of any of the Products provided by Supplier to User. These Terms of
Service only govern the User’suse of the Tough Commerce Online Platform and its relationship with Tough Commerce
and not any relationship between User and Supplier.
User acknowledges that (i) all Products are provided by Supplier; (ii) Tough Commerce does not supply, manufacture,
or deliver any Products; (iii) Tough Commerce does not engage in any material preparation or assess the specifications
of any Products offered by any Supplier on the Tough Commerce Online Platform; (iv) Tough Commerce does not guarantee
the suitability, legality, or ability of any Supplier to offer such Products.
Products provided by Supplier to User on the Tough Commerce Online Platform may be subject to additional terms and conditions not contained herein. User acknowledges and agrees that Tough Commerce is not a party to any additional terms and conditions related to the Products and has no liability to User whatsoever in relation to the subject matter therein. For greater clarity, the existence of any additional terms and conditions related to the Products will not modify or omit these Terms of Service in any way nor limit any of User’s obligations hereunder.
Delivery of Products: Supplier has sole responsibility for the delivery of
all Products to User.Tough Commerce is not a delivery or carrier service. Tough Commerce is not responsible for: (i) the
efficient delivery of Products to Users by Supplier; and/or (ii) any delay by Supplier in delivery of Products ordered by User.
Tough Commerce is also not responsible for any Products that are lost or damaged during delivery and all queries
related to any lost or damaged products must be directed to Supplier.
Quantities and Substitution: Tough Commerce reserves the right to limit quantities
of Products as listed on the Tough Commerce Online Platform and will not be liable for any costs related to the
procurement of any substitute products if the Products delivered by Supplier do not meet User’s expectations.
Any order for Products placed by User on the Tough Commerce Online Platform is not binding until said order is accepted or approved by Supplier.
Order Cancellation: If User requests an order cancellation, Tough Commerce
may cancel the order on behalf of Supplier. If User requests an order cancellation for an order that
has already been accepted by Supplier, User must contact Supplier directly to request a cancellation.
Tough Commerce is not responsible for any orders on the Tough Commerce Online Platform once an order has been accepted by Supplier.
Modification: User must communicate any order modification or alternative
request to Supplier through the Tough Commerce Online Platform at least two (2) hours prior to the expected delivery date of a Product.
Tough Commerce does not guarantee that Supplier will accept or approve User’s order modification request.
Account Activation and Deletion
Accounts. User is required to register an account with Tough Commerce (an “Account”)
in order to use the Tough Commerce Online Platform for purchasing Products. During registration, a User will be asked
to provide Personal Information in order to create an Account. User shall ensure that such account activation
information is accurate and complete and that such information remains current. User is also responsible
for all activity that occurs in User’s Account and should capture any data related to the purchase of
Products in their Account for User’s own internal bookkeeping purposes.
Passwords. User is responsible for keeping all Account passwords secure.
Tough Commerce will not be liable for any loss or damage caused by or arising from a failure by User to maintain
the security of the User’s Account and passwords.
Account Deletion: User may delete a User Account in accordance with
the following: (1) User has no open orders associated with the User Account; and (2) there is no outstanding
payment due and payable to Supplier for any Products. User Account data as referenced in Section 4.1 should be
captured by User prior to deletion. After deletion of an Account, Tough Commerce may, at its sole discretion,
supply User with Account data upon User’s request.
Support. Tough Commerce will provide Support to User through a live chat feature
in the App and/or Tough Commerce Web Application in relation to the use and functionality of the App and/or Tough Commerce
Web Application at no additional charge. Tough Commerce does not provide any support or advice in relation to the
Products listed on the Tough Commerce Online Platform and has no liability for any support or advice provided to
User by Supplier in relation to the Products. Tough commerce provides minimal support and maintenance for the App and
Tough Commerce Web Application on a commercially reasonable effort basis only and User acknowledges that Tough Commerce
is not obligated to provide any support or maintenance for the App and Tough Commerce Web Application.
Intellectual Property Rights and Ownership
The Tough Commerce Online Platform and its entire contents, features, and functionality, including but not limited
to all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation,
selection, and arrangement, are owned by Tough Commerce, its licensors, or other providers of such material and are
protected in all forms by intellectual property laws including, without limitation, copyright, trademark, patent,
trade secret, and any other proprietary rights.
Tough Commerce’s name and all related names, logos, product and service names, designs, images and slogans are trademarks of
Tough Commerce or its affiliates or licensors. User may not use such marks without the prior written permission of User.
Other names, logos, product and service names, designs, images and slogans mentioned or which appear on the Tough Commerce
Online Platform are the trademarks of their respective owners. Use of any such property, except as expressly
authorized, shall constitute a violation of the rights of the property owner and may be a violation of federal or
other laws and could subject the violator to legal action.
User shall not directly or indirectly reproduce, compile for an internal database, distribute, modify,
create derivative works of, publicly display, publicly perform, republish, download, store, or transmit
any of the material on the Tough Commerce Online Platform, in any form or medium whatsoever except:
User’s computer and browser may temporarily store or cache copies of materials being accessed and viewed; and
In the event social media platforms are linked to certain content on the Tough Commerce Online Platform,
User may take such actions as the Tough Commerce Online Platform and such third-party social media platforms permit.
User is not permitted to modify copies of any materials from the Tough Commerce Online Platform nor delete or
alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Tough Commerce Online Platform.
Any use of the Tough Commerce Online Platform and materials not expressly permitted by these Terms of Service is a
breach of these Terms of Service and may infringe or violate copyright, trademark, and other intellectual
property or other proprietary laws.
If User copies or downloads any part of the Tough Commerce Online Platform in breach of these Terms of Service,
User’s right to use the Tough Commerce Online Platform will cease immediately and User must, at Tough Commerce’s option,
return or destroy any copies of the materials Users have made. Any use of the Tough Commerce Online Platform and
materials not expressly permitted by these Terms of Service is a breach of these Terms of Service and may
infringe or violate copyright, trademark, and other intellectual property or other proprietary laws.
Third Party Sites
Third Party Sites. The Tough Commerce Online Platform may provide links or pointers to third party sites, content,
resources or email content. Tough Commerce makes no representations about any other websites,
content, resources or email content that may be accessed from the Tough Commerce Online Platform. If User chooses to
access any such sites, content, resources or email content Supplier does so at its own risk. Tough Commerce has
no control over the contents of any such third party sites, content, resources or email content
and accepts no responsibility for such sites, content,resources or email content or for
any loss or damage that may arise from User’s use of them.User is subject to any terms and conditions of
such third party sites, content, resources or email content that may apply. All statements and/or opinions
expressed in any such third party site,content, resources or email content other than the content provided by Tough Commerce,
are solely the opinions and the responsibility of the person or entity providing those materials. Such materials
do not necessarily reflect the opinion of Tough Commerce and Tough Commerce is not responsible, or liable to User or any
third party, for the content or accuracy of any third party materials.
Ownership. As between Tough Commerce and User, User exclusively owns all rights,
title and interest in and to all User Data. Tough Commerce does not acquire any rights, title or ownership interest
of any kind whatsoever, express or implied, in any of the User Data.
License to Use User Data. User hereby irrevocably grants
all such rights, licenses and permissions in or relating to User Data to Tough Commerce as are necessary or
useful: (i) for User to use the Tough Commerce Online Platform; and (ii) to enforce this Agreement and exercise its
rights and perform its obligations hereunder.
Personal Information. To the extent that User Data includes Personal Information,
Tough Commerce shall secure Personal Information with commercially reasonable safeguards appropriate to the level
of sensitivity of the Personal Information. Tough Commerce shall only Process Personal Information on behalf of and
in accordance with User’s instructions and Data Protection Laws for the following purpose:(i) Processing in
accordance with the Terms of Service; and (ii) Processing to comply with other documented reasonable instructions provided
by User where such instructions are consistent with the Terms of Service in relation to all Personal Information
provided by or through User to Tough Commerce under these Terms of Service. Tough Commerce shall, in connection with the
User is Data Controller. In relation to all Personal Information provided by
or through User to Tough Commerce under this Agreement, User will at all times remain the Data Controller and will be responsible
for compliance with all applicable Data Protection Laws. To the extent that Tough Commerce processes Personal Information
in the course of providing the Tough Commerce Online Platform and related services under this Agreement, it will do so
only as a Data Processor acting on behalf of the User (as Data Controller) and in accordance with the requirements of this Agreement.
Tough Commerce’s Processing of Personal Information. Tough Commerce shall only Process Personal Information on
behalf of and in accordance with User’s documented instructions and Data Protection Laws for the following
purposes: (i) Processing in accordance with these Terms of Service; (ii) Processing initiated by User’s
Users in their use of the Tough Commerce Online Platform; and (iii) Processing to comply with other documented
reasonable instructions provided by User where such instructions are consistent with the terms of these Terms of Service.
Technical and Organizational Safeguards. In connection with the provision of the
Tough Commerce Online Platform, Tough Commerce will maintain commercially reasonable administrative, physical, and technical
safeguards for protection of the security, confidentiality and integrity of Personal Information and Tough Commerce
shall secure Personal Information with safeguards appropriate to the level of sensitivity of the Personal Information.
Those safeguards will include, but will not be limited to, measures for preventing access, use, modification
or disclosure of Personal Information by Tough Commerce personnel except (a) to provide the Tough Commerce Online Platform and
prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority,
or (c) as expressly permitted in writing by User. Tough Commerce shall, in connection with the provision of the Tough Commerce
ensure that its personnel engaged in the Processing of Personal Information are informed of the confidential
nature of the Personal Information and have received appropriate training on their responsibilities and Tough Commerce
shall take commercially reasonable steps to ensure the reliability of any Tough Commerce personnel engaged in the Processing of Personal Information.
Data Breach. Upon becoming aware of any unlawful access to any Personal Information,
any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information,
or any actual loss of or suspected threats to the security of PersonalInformation (including any physical trespass
on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage
media or printed materials, or other unauthorized access) (each a “Security Incident”), Tough Commerce will promptly
notify User of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of User,
but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required
assistance in the investigation of the Security Incident and provide User with detailed information about
the Security Incident. Tough Commerce will take all commercially reasonable steps to mitigate the effects of
the Security Incident, or assist User in doing so; and will provide prior notice to User of,
and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal
Information without User’s prior written approval, not to be unreasonably withheld, conditioned or delayed.
Tough Commerce will work with and coordinate with User on any such notices in any event. Tough Commerce will comply with this Section 8.7 at
Tough Commerce’s cost unless the Security Incident arose from User’s negligent or willful acts or Tough Commerce’s
compliance with User’s express written instructions.
Subcontracting. Tough Commerce may engage third party subcontractors to assist
in the provision of the Tough Commerce Online Platform under this Agreement. User authorizes Tough Commerce to subcontract the processing of
Personal Information under this Agreement provided that (i) Tough Commerce shall maintain a list of such sub processors and will provide a
copy of that list to User upon request; and (ii) all subprocessors will be contractually required by Tough Commerce to abide by substantially the same
obligations as Tough Commerce under this Agreement to protect Personal Information, such that the data processing terms of the subcontract
will be no less onerous than the data processing terms set out in this Agreement.
California Consumer Privacy Act (CCPA). Tough Commerce is a “Service Provider” as such term is defined under §1798.140(v) of the CCPA. As such Tough Commerce shall not retain, use or disclose any personal information (as defined in the CCPA) received from User for any purpose other than the specific purpose of providing the Products specified in the Terms of Service or for such other business purpose as is specified in the Terms of Service.
User Accounts. User is responsible for its compliance with these Terms of
Service, all activities that occur in User accounts, and for all User Data uploaded, collected, generated,
stored, displayed, distributed, transmitted or exhibited on or in connection with User’s Account. User shall:
(a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness
of all User Data and the means by which User acquired User Data; (b) use commercially reasonable efforts
to prevent unauthorized access to, or use of, the Software or the Tough Commerce Online Platform, and notify Tough Commerce
promptly of any such unauthorized access or use;and (c) use the Tough Commerce Online Platform only in accordance with
the Documentation and applicable laws and government regulations.
Use Guidelines. User shall use the Tough Commerce Online Platform solely for its internal
business purposes as contemplated by these Terms of Service and shall not interfere with or disrupt the integrity
or performance of the Tough Commerce Online Platform or the data contained therein.
Network Access and Equipment. User is responsible for obtaining the data
network necessary to use the Tough Commerce Online Platform and for acquiring, servicing, maintaining and updating all
equipment, computers, software and communications services (such as Internet access) that are required to allow
User to access and use the Tough Commerce Online Platform and for all expenses relating thereto. User agrees to access and use,
and shall ensure that all access and use of the Tough Commerce Online Platform is in accordance with any and all operating
instructions or procedures that may be issued by Tough Commerce from time to time.
Feedback. User may provide reasonable feedback to Tough Commerce including,
but not limited to,suitability, problem reports, suggestions and other information with respect to the
Tough Commerce OnlinePlatform (“Feedback”). User hereby grants to Tough Commerce a fully paid-up, royalty-free, worldwide,
assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Tough Commerce Online
Platform, Documentation and any other Tough Commerce products or services, or for any other purposes, any Feedback provided by Users.
Prices, Fees and Payment
Prices: Tough Commerce reserves the right to modify or adjust the prices for Products as listed on the Tough Commerce
Online Platform at any time. Product prices listed on the Tough Commerce Online Platform are informational in nature
and User understands that User will be charged the price of the Product at the time of purchase, which may
differ slightly from the price listed on the Tough Commerce OnlinePlatform. Unless otherwise stated, all prices are in
Canadian dollars if User is domiciled in Canada, or US dollars if User is domiciled in the United States, and do not include Taxes. All sales are final and payment obligations are non-cancellable.
Charges. User understands and acknowledges that use of the Tough Commerce Online
Platform will result in charges to User for the Products purchased from a Supplier (“Charges”). User is
responsible for the payment of all Charges incurred in User’s use of the Tough Commerce Online Platform and purchase of
the Products, whether or not authorized by User. Tough Commerce shall facilitate User’s payment of the applicable
Charges on behalf of Supplier as Supplier’s limited payment collection agent. Payment of the Charges in such
manner shall be considered to constitute payment made directly by User to Supplier.
Fees and Payment: Tough Commerce may charge User additional fees upon User purchasing
Products from Supplier through use of the Tough Commerce Online Platform. Such fees may include but are not limited to
delivery fees, insurance fees, service fees, small quantity fees, expedited fees, or surge fees (collectively, the “Fees”).
User agrees that Fees may also be charged for any order changes as a result of User removing or adding Products
to its order after the order has been accepted and/or approved by Supplier. User must pay for the Products
using the payment function as available on the App or Tough Commerce Web Application. The Tough Commerce Online Platform
accepts all major credit cards and does not accept cheques, cash, wire transfers, or cryptocurrency as acceptable
methods of payment.
Taxes. User is responsible for paying all HST, GST, sales, value-added,
use or withholding taxes,assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated
with the Charges as defined in Section 10.2. For clarity, Tough Commerce is solely responsible for taxes assessable
against it based on its income, property and employees.
Refunds: All orders for the Products, once delivered, are final and non-refundable.
Tough Commerce doesnot provide for or facilitate any refunds, credits or replacements to User for the Products. If User
wants to initiate to return a Product for the purposes of a refund or replacement, User must contact Supplier,
which can be done through the App, and Supplier will provide a refund, credit or replacement at its sole discretion.
Definition of Confidential Information. As used herein, “Confidential Information”. means all
confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”),
whether orally or in writing, that is designated as confidential or that reasonably should be understood to be
confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions
of these Terms of Service, the Tough Commerce Online Platform and Documentation, User Data (which is the Confidential Information of
the User), business and marketing plans, technology and technical information, product designs,
and business processes. Confidential Information shall not include any information that: (i) is or
becomes generally known to the public without breach of any obligation owed to the DisclosingParty; (ii)
was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed
to the Disclosing Party; (iii) was independently developed by theReceiving Party without breach of any obligation owed
to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
Confidentiality. Subject to Section 11.4, and unless the Disclosing Party
expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential
Information only during the Term and only as necessary to perform the Receiving Party’s obligations under these
Terms of Service; (b) disclose the Disclosing Party’s Confidential Information only to theReceiving Party’s directors,
officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure
is necessary to perform the ReceivingParty’s obligations or exercise the Receiving Party’s rights under these Terms of Service. User
shall not disclose any performance, benchmarking, or feature-related information about the Tough Commerce Online Platform.
Protection. Each party agrees to protect the confidentiality of the Confidential
Information of the other party in the same manner that it protects the confidentiality of its own proprietary
and confidential information of like kind (but in no event using less than reasonable care).
Compelled Disclosure. If the Receiving Party is compelled by law to disclose
Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such
compelled disclosure (to the extent legally permitted) and reasonable assistance, at DisclosingParty's cost, if
the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any
Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder,the
Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive
relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or
termination of these Terms of Service (or at any earlier time upon written request by theDisclosing Party),
the Receiving Party will: (a) promptly deliver to the Disclosing Party all original sand copies, in whatever
form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials,
in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession,
power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any
and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to
whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 11.6.
Limited Warranties and Disclaimers
Limited Warranties. Tough Commerce hereby represents and warrants to User that:
The Tough Commerce Online Platform will perform materially in accordance with the Documentation therefor;
the Tough Commerce Online Platform will not contain any Malicious Code;
General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN,
THE TOUGH COMMERCE ONLINE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" AND TOUGH COMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS,
ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT
LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING
BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING:
(I) THESE TERMS OF SERVICE; (II) THE SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION
OR USER DATA TRANSMITTED TO OR FROM TOUGH COMMERCE VIA THE TOUGH COMMERCE ONLINE PLATFORM. TOUGH COMMERCE DOES NOT REPRESENT OR WARRANT
THAT THE TOUGH COMMERCE ONLINE PLATFORM WILL MEET ANY OR ALL OF USER’S PARTICULAR REQUIREMENTS, THAT THE TOUGH COMMERCE ONLINE
PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN
BE FOUND IN ORDER TO BE CORRECTED. TOUGH COMMERCE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS
FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Internet Connectivity Disclaimer. Tough Commerce makes the Tough Commerce Online Platform available
for access via the Internet. User shall provide, at User’s own expense, all necessary hardware, applications and
Internet connectivity necessary to access the Tough Commerce Online Platform over the Internet. User is responsible for and
shall ensure that User’s computer equipment and an internet connection meets the minimum specifications published by
Tough Commerce in the Documentation and updated from time to time on the Tough Commerce’s Web Application, and User shall
periodically update User’s computer equipment and/or Internet connection to meet such minimum specifications. User
hereby acknowledges that the Tough Commerce Online Platform may be interrupted due to (a) website downtime for scheduled
maintenance at Tough Commerce’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime
caused by circumstances beyond Tough Commerce’s control, including, without limitation, acts of God, acts of government,
flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications
failures, or delays involving hardware of software not within Tough Commerce’s control or network intrusions. User hereby acknowledges
and agrees that Tough Commerce shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions
and releases Tough Commerce from any claims relating thereto.
By Tough Commerce:
Intellectual Property Infringement Indemnity. Subject to these Terms of Service, Tough Commerce shall defend,
indemnify and hold User harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims,
demands, suits, or proceedings made or brought against User by a third party alleging that the use of the Tough Commerce
Online Platform as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided,
that User (a) promptly gives written notice of the Infringement Claim to Tough Commerce; (b) gives Tough Commerce sole control of the defense and settlement
of the Infringement Claim (provided that Tough Commerce may not settle or defend any Infringement Claim unless it unconditionally releases User of all liability);
and (c) provides to Tough Commerce, at Tough Commerce's cost, all reasonable assistance and information.
Other Remedies. If (a) Tough Commerce becomes aware of an actual or potential Infringement Claim, or (b) User provides Tough Commerce with notice of an actual or potential Infringement Claim, Tough Commerce may (or in the case of an injunction against User, shall), at Tough Commerce’ sole option and determination: (i) procure for User the right to continue to use the Tough Commerce Online Platform; or (ii) replace or modify the Tough Commerce Online Platform with an equivalent or better service so that User’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Tough Commerce in its sole discretion, terminate the rights granted hereunder to the User to access and use the Tough Commerce Online Platform pursuant to this Section (b), less any outstanding fees owed on such affected portion of the Tough Commerce Online Platform.
Exclusions. The indemnity in Section 13.1 does not extend to (1) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Tough Commerce Online Platform with other products, software or services not provided or approved by Tough Commerce, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Tough Commerce Online Platform other than the most current version; or (3) any use, distribution, sublicensing or exercise of any other right outside the scope of these Terms of Service.
Limitation. Notwithstanding any other provision of these Terms of Service, the liability of Tough Commerce to User under this Section 13 shall not exceed one hundred dollars ($100.00). Tough Commerce agrees to obtain User’s consent for any settlement in excess of $100.00. In no event shall Tough Commerce be responsible for any cost, expense or compromise incurred or made by User without Tough Commerce’ prior written consent.
Entire Liability. THIS SECTION 13 CONTAINS TOUGH COMMERCE’S ENTIRE LIABILITY, AND USER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.
User shall defend, indemnify and hold Tough Commerce harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Tough Commerce by a third party (a) alleging that the User Data or User's use of the Tough Commerce Online Platform in violation of these Terms of Service, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of these Terms of Service; (c) based on or in any way related to a dispute between User and one of its Suppliers; or (d) caused by any negligent act or omission of User or its employees, contractors or agents (each a “User Indemnified Claim”); provided, that Tough Commerce (x) promptly gives written notice of the User Indemnified Claim to User; (y) gives User sole control of the defense and settlement of the User Indemnified Claim (provided that User may not settle or defend any User Indemnified Claim unless it unconditionally releases Tough Commerce of all liability); and (z) provides to User, at User's cost, all reasonable assistance and information.
Limitation of Liability
Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 14.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE TOUGH COMMERCE ONLINE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
Limitation on Direct Damages. SUBJECT TO SECTION 14.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR CLAIMS FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM USER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
Exclusion. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THESE TERMS OF SERVICE SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS (SUBJECT TO THE LIMITATION CONTAINED IN SECTION 13.1(d) HEREOF), (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) FRAUD OR WILLFUL MISCONDUCT, OR (V) BODILY INJURY OR DEATH.
User hereby represents and warrants that User is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States.
Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable Canadian and foreign anti-corruption laws, including without limitation, the Canadian Corruption of Foreign Public Officials Act (CFPOA) and U.S. Foreign Corrupt Practices Act of 1977, and similarly applicable anti-corruption and anti-bribery laws. Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under the Terms of Service.
User may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Tough Commerce. Any attempt by User to assign its rights or obligations under these Terms of Service in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Force Majeure. Neither Tough Commerce nor User shall be deemed to be in default of any provision of these Terms of Service (other than User’s obligation to pay amounts due to Tough Commerce hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, epidemics or pandemics, civil disturbance, strikes, fires, or other catastrophes.
Waiver. The failure of a party to claim a breach of any term of these Terms of Service shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under these Terms of Service shall constitute a waiver of that right.
Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Governing Law. All matters arising out of or relating to these Terms of Service shall be governed by the internal laws of (i) the Province of Ontario, if User is domiciled in Canada, or (ii) the State of California, if User is domiciled in the United States. The parties expressly disclaim any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms of Service is expressly excluded and does not apply to these Terms of Service.
Entire Agreement. These Terms of Service is the entire agreement between User and Tough Commerce in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with Tough Commerce.
Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, TOUGH COMMERCE MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART AT ANY TIME, AT ITS DISCRETION, WITHOUT NOTICE. TOUGH COMMERCE WILL NOT BE LIABLE IF, FOR ANY REASON, ALL OR ANY PART OF THE TOUGH COMMERCE ONLINE PLATFORM IS RESTRICTED TO USERS OR UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD.
Last update: July 5, 2021