LAST UPDATED: Feburary 12, 2018
By accessing and using our websites and mobile applications that link to these Terms (collectively, our “Sites”), you agree to be bound by these Terms. If you do not agree with these Terms, you may not access our Sites or order, receive or use any products and services that may be made available through the Sites.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will update the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Sites, you confirm your acceptance of the revised Terms. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of Canada, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, and (d) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
4. Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you may need to register for an account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Sites on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating an account with us, you also consent to receive electronic communications from us (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
5. Online Payments
By accessing, viewing or using any of our online payment services, you authorize us to establish and maintain your invoices and payment authorizations and process your payments according to your instructions. You also represent and warrant that you are authorized to use the designated payment method. We reserve the right to terminate your access to online payment services at any time with or without cause or prior notice, in our sole discretion. When you send us a payment authorization, you authorize us to charge your transaction account and remit funds on your behalf. We anticipate completing most transactions and posting your payment within two (2) business days of the date you designate. Due to circumstances beyond our control, some transactions may take more than two (2) business days to post. Therefore, we should receive payment authorizations at least three (3) business days before the actual payment due date. If you send a payment authorization less than three (3) business days before the payment due date, you may be assessed late charges and penalties if your payment does not post prior to the due date. If your financial institution or the holder of the account from which you have designated payment is unable to complete your transaction including, but not limited to, insufficient funds, the transaction may not be completed, and we may charge you for any returned credit/debit card charges. We do not charge you any additional fees for submitting online payments; however, you may incur charges from your financial institution to make these payments.
6. License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein (collectively, “Content”) are the proprietary property of AquaTerra or our licensors or users, as applicable, and are protected by Canadian and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of AquaTerra or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by AquaTerra or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
The works of authorship contained on the Sites, including, but not limited to, all design, text, graphics, sound recordings, images and logos (collectively “Copyrights”), are owned, except as otherwise expressly stated, by us and are protected by Canadian and international copyright laws and regulations. In addition, we own a copyright to the Sites as a collective work or compilation, and in the selection, coordination, enhancement and arrangement of the content of the Sites. Except as otherwise expressly stated herein, the Copyrights may not be copied, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without our prior written consent. We do not grant any express or implied rights to you in the Copyrights and we enforce our intellectual property rights to the fullest extent of the law. Please note that the unauthorized reproduction or distribution of a copyrighted work is illegal.
“AquaTerra,” Nursery® and any other service names, logos or slogans that may appear on the Sites are trademarks of AquaTerra or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing any name, trademark or product or service name of AquaTerra without our prior written permission. In addition, the look and feel of the Sites, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of AquaTerra and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, service names and company names or logos mentioned on the Sites are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by AquaTerra.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray AquaTerra or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use an AquaTerra logo or other proprietary graphic of AquaTerra to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any AquaTerra trademark, logo or other proprietary information, including the images found on the Sites, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Links to non-AquaTerra websites are provided solely as pointers to information on topics that may be useful to you. We make no representation or warranty, either expressed or implied, about the content of any non-AquaTerra website, including but not limited to the accuracy, completeness, reliability or suitability thereof for any particular purpose. Links to non-AquaTerra websites do not imply that AquaTerra endorses, or is responsible for, the opinions, ideas, products, information or services offered by the non-AquaTerra websites.
10. Third Party Content
We may display content, advertisements and promotions from third parties through the Sites (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
11. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from such user and AquaTerra;
- Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
- Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access;
- Develop any third party applications that interact with User Content or the Sites without our prior written consent;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
- Bypass or ignore instructions contained in the robots.txt file that controls all automated access to the Sites; or
- Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You can submit questions, comments, suggestions, ideas, original or creative materials or other information about AquaTerra, the Sites or any of our products or services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of AquaTerra. AquaTerra shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
13. Site Disruptions
We are not responsible or liable if or when your access to the Site(s) is or becomes delayed, limited, slow or otherwise unavailable due to any reason, including hardware or software failure; overload of system capacities; damage caused by severe weather, earthquakes, hurricanes, natural disasters or other acts of God; wars, insurrections, riots, acts of terrorism; interruption of power or other utility services; strikes or other work stoppages; governmental or regulatory restrictions; court or administrative orders or rulings; or any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond our control. Furthermore, we are not liable for any computer viruses, malicious code or other defect in the Sites or incompatibility among the Sites, files and your browser or other site accessing program.
14. Disclaimer of Warranties
WE ATTEMPT TO DISPLAY OUR PRODUCTS AND SERVICES AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING ANY PRICING AND PRODUCT AND SERVICE DESCRIPTIONS, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS AND SERVICES THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES AND CONTENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR CONTENT WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. SOME PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO THESE EXCLUSIONS AND LIMITATIONS OF WARRANTIES MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER WARRANTY RIGHTS THAT VARY FROM PROVINCE TO PROVINCE. We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) at any time without notice. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AQUATERRA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM AQUATERRA, OR FROM EVENTS BEYOND AQUATERRA’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). IN ANY EVENT, AQUATERRA’S LIABILITY SHALL NOT EXCEED THE PRICE YOU PAID TO AQUATERRA FOR GOODS AND/OR SERVICES THAT YOU HAVE PURCHASED DURING THE 3 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY OF AQUATERRA FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
16. Modifications to the Sites
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) at any time.
17. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH AQUATERRA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
If there is any dispute, controversy or claim which arises out of or relates to these Terms, the Site or the Content (collectively, “Disputes”), then to the extent permitted by applicable law, you agree to resolve such dispute by binding arbitration before a sole arbitrator in Toronto, Canada in accordance with the Arbitration Act (Ontario). You understand and acknowledge that by agreeing to binding arbitration, you are giving up the right to litigate (as a party or class member) all disputes in court before a judge or jury. It is important that you understand that the arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction. You and we each agree that any arbitration will be conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated, private attorney general or representative action.
The foregoing requirement for arbitration in Toronto shall not apply to any Disputes arising out of or related to a violation by you of Section 11 or Disputes in which AquaTerra seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, and in such a case AquaTerra may seek such remedies in any jurisdiction having a real and substantial connection to you or the alleged infringement.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 11 OR DISPUTES IN WHICH AQUATERRA SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND AQUATERRA AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR AQUATERRA WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND AQUATERRA WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
18. Governing Law and Venue
These Terms and your access to and use of the Sites shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Subject to the preceding section, any dispute between the parties that is not subject to arbitration, shall be resolved in the courts of the Province of Ontario.
19. Termination of Access
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites at any time and for any or no reason.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
These Terms constitute the entire agreement between you and AquaTerra relating to your access to and use of the Sites. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of AquaTerra. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.