Terms and conditions of use and sale
1 USE OF THE WEBSITE. The tiptop.ca website (the “Site”) is owned and operated by Grafton Fraser Inc. (the “Company”) for your personal and non-commercial use and information. Your use of the Site is subject to the following terms and conditions of use and sale (the “Terms”) and all applicable laws. By accessing and browsing the Site, you accept, without limitation or qualification, the Terms. If you do not agree with any of the Terms, please do not use the Site. The Company reserves the right to change, modify, alter, add, remove or otherwise update the Terms (or any portion thereof) applicable to the Site without prior written notice at any time, and from time to time, at the Company’s sole discretion. We will notify you of any such changes, modifications, alterations or updates to the Site by posting notice of it on the Site. Following the posting of any such notice, your continued use of the Site will constitute your acceptance of the new terms and other policies, as modified, and you will be bound by said new terms and policies. The Company’s products and services available through the Site (the “Product” or the “Products”) may be ordered by persons who reside in Canada and the continental United States (excluding Alaska). The Site is not intended for access or use outside these territories. You are responsible to ensure that your access to the Site and the information and material available on or through it are legal in each jurisdiction in or through which you access or view the Site and such information and material. The terms “we”, “us”, and “our” used in the Terms also refer to the Company. THE COMPANY URGES YOU TO READ THE TERMS CAREFULLY, AS THEY INCLUDE PROVISIONS SUCH AS LIMITATION OF LIABILITY, DISPUTE RESOLUTION AND OTHER PROVISIONS THAT MAY LIMIT YOUR RIGHTS.
2 ACCEPTABLE USE POLICY. As a condition of your use of the Site, you hereby represent and warrant to the Company that you:
- agree to honour our intellectual property rights;
- agree to provide us with accurate information as necessary for the proper conduct of the Site and to take responsibility for the information you provide;
- acknowledge that we may be unable to process and shall have no responsibility to process requests the accuracy of which we cannot validate;
- agree not to create a link (other than personal “bookmark” or “favorites” entry) to the Site without first obtaining our written permission;
- will refrain from using profane, vulgar, inflammatory, libelous, or similarly discourteous language in any e-mail or form entry created through the Site; and
- shall not interfere or attempt to interfere with the operation of the Site in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or other means expressly prohibited by any provision of the Terms.
4 NO USE BY MINORS. The Site is intended for use by adults only. If you use the Site to purchase Products, you represent that you are of legal age to enter into any purchase agreement through the Site and become bound by its terms. If you are under the age of majority in the jurisdiction in which you reside, your parent or guardian should use the Site on your behalf and you should not use the Site on your own or provide any personal information to the Company. The Company does not knowingly collect information from children under the age of 13.
5 PRODUCT PURCHASES AND USER ACCOUNT. If you register an account on the Site for the purchase of Products, you are responsible for maintaining the confidentiality of your account log-in credentials, including password, and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. The Company reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion.
6 PRODUCT INFORMATION AND AVAILABILITY. Products which may be purchased from the Site are available for sale and distribution to customers in Canada and the continental United States (excluding Alaska) only. The Company attempts to be as accurate as possible in describing all Products available for sale and/or distribution by the Company. However, the Company does not warrant that Product descriptions or other content of the Site are accurate, complete, reliable, current or error-free. Please note that because the colours of the Products you see will depend on your monitor, the Company cannot guarantee that your monitor will display the exact actual colour of a Product displayed. The availability of certain Products may be limited, and Products may not be available for immediate sale. The Company may revise or cease to make available any Products at any time without prior notice. In the event that the Company is unable to deliver to you a Product ordered due to lack of availability, the Company will notify you via e-mail and your order will be automatically cancelled with respect to such unavailable Product, provided that the Company may, in its sole discretion, contact you in order to allow you to maintain your order subject to a revised delivery time if and when the Product becomes available.
7 PRODUCT ORDERS. Before submitting an order for the purchase of Products using the Site, you will be shown an order confirmation screen (the “Order Confirmation”) describing, among other things, the Product(s) to be ordered, the purchase price and any applicable charges for shipping and taxes. When you submit your order (by pressing the “Complete Secure Checkout” button), such order will constitute an offer from you to the Company to purchase the Product(s) described in the Order Confirmation, for the price and subject to the other charges, terms and conditions set out in the Order Confirmation. Orders are not binding on the Company until accepted by the Company. The Company’s acceptance of your order is evidenced by return e-mail from the Company indicating that your order has been accepted. THE SITE AND ITS CONTENTS ARE NOT TO BE CONSTRUED AS AN OFFER TO SELL ANY PRODUCT OR SERVICE. Customer orders for Products for delivery to the continental United States (other than Alaska) shall be limited to a maximum of CAN$200.00 per day. United States orders shall be exempt from payment of Canadian federal goods and services taxes and any applicable provincial sales taxes, and other Canadian taxes and duties associated with a Product order.
8 PRODUCT PRICING. All prices and Product orders are quoted and shall be processed in Canadian dollars. Although the Company strives to provide accurate Product and pricing information, errors may occur. The Company reserves the right to correct any errors in pricing or Product information and to modify the prices of Products, at any time, without prior notice. The Company cannot confirm the price of a Product until after you submit an order for the Product. In the event that the price or related information for a Product (as described on the Site and/or the Order Confirmation) is incorrect due to an error in pricing or product information, the Company may, at its sole discretion, refuse or cancel your order, whether before or after the Company’s acceptance thereof. If there is such an error in pricing, the Company will cancel your order and reverse any charges that have been applied, then contact you to ask you to place a new order for the Product at the correct price.
9 CONSENT TO USE ELECTRONIC DOCUMENTS. You hereby consent to the exchange of information and documents between you and the Company over the Internet or by e-mail, and you agree that the Terms, together with any applicable Order Confirmation(s) accepted by the Company in electronic form shall be the equivalent of an original written paper agreement between us. You further agree that all agreements, notices, disclosures and other communications that we may provide to you electronically satisfy any legal requirement that such communications be in writing.
10 CANCELLATION. The Company reserves the right, in its sole discretion, to limit quantities, terminate accounts and to refuse or cancel any order, including after the order has been submitted, whether or not the order has been confirmed or accepted and your credit card charged. In the event that your order is cancelled after your payment has been processed, the Company will issue a full refund.
11 PAYMENT TERMS. Terms of payment for any Products purchased through the Site shall be determined at the Company’s sole discretion. Payment shall be made by credit card or Pay Pal unless some other pre-arranged method of payment has been accepted by the Company. Any payments made by credit card are subject to the approval of the financial institution that has issued the credit card.
12 SHIPPING AND TAXES. The Company will ship the Product(s) ordered by you according to the delivery method you have chosen and to the address indicated in the Order Confirmation. Delivery times provided by the Company are estimates only. The Company shall not be responsible for any damages or costs resulting from any delays in delivery. Unless otherwise stated, all Product prices quoted do not include shipping and handling charges and applicable federal, state and provincial sales taxes. Separate charges for shipping and handling and taxes will be shown on the Order Confirmation for each order, as applicable. Canadian customers shall be responsible for all sales, use, goods and services, harmonized sales, and other taxes and duties associated with the order. United States orders shall be exempt from payment of Canadian federal goods and services taxes and any applicable provincial sales taxes, and other Canadian taxes and duties associated with a Product order. However, United States customers are responsible for all sales, use, and any other taxes and duties imposed by any state or jurisdiction in the United States, associated with their order.
13 OWNERSHIP; RISK OF LOSS. All Product(s) purchased from the Company are delivered to you by a third party delivery company, pursuant to a shipping contract. You shall become the owner of the Product(s) and shall assume the risks of loss at the time of delivery by the Company of the Product(s) to the third party delivery company.
14 RETURNS. All Product returns are subject to the Company Returns Policy, the terms of which are incorporated herein by reference. Some restrictions may apply.
15 EXCLUSION AND DISCLAIMER OF WARRANTIES. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE FUNCTIONALITY, THE GOOD WORKING ORDER OR CONDITION OF THE SITE, ITS SUITABILITY FOR USE, OR THAT ITS USE, OR ANY INFORMATION OR MATERIAL, INCLUDING ANY DOWNLOADABLE SOFTWARE, ACCESSED FROM OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY DOES NOT REPRESENT, WARRANT OR UNDERTAKE THAT ANY ERRORS ON OR RELATING TO THE SITE WILL BE CORRECTED, OR THAT ANY SERVER FROM WHICH THE SITE IS OPERATED IS OR WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE TERMS, THE SITE AND ALL MATERIALS, PRODUCTS AND INFORMATION PROVIDED THROUGH OR ON THE SITE ARE PROVIDED TO YOU ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND THE COMPANY DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION (i) WARRANTIES AS TO UNINTERRUPTED OR ERROR-FREE TRANSACTIONS, PRIVACY, OR SECURITY, (ii) ACCURACY, ADEQUACY OR COMPLETENESS OF THE SITE AND THE CONTENT THEREOF, THE INFORMATION, MATERIALS AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SITE, ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE; OR (iii) MERCHANTABILITY, QUALITY, TITLE, DURABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSES, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. THESE EXCLUSIONS ARE IN ADDITION TO ANY SPECIFIC EXCLUSION OTHERWISE PROVIDED IN THE TERMS. BECAUSE CERTAIN FEDERAL, STATE OR PROVINCIAL LAWS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, CERTAIN OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT.
16 INDEMNIFICATION. By using the Site you hereby agree to indemnify, defend and hold harmless the Company from and against any and all losses, damages, liabilities, and claims and all fees, costs, expenses, of any kind related thereto (including, without limitation, reasonable lawyers’ fees) incurred by the Company in connection with any claim arising out of, based upon or resulting from your use of the Site. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not, in any event, settle any matter without the written consent of the Company. FOR THE PURPOSES OF THIS SECTION, “COMPANY” SHALL INCLUDE THE COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, OWNERS, EMPLOYEES, AGENTS, MANDATARIES, CONTRACTORS, LICENSORS, LICENSEES AND THIRD-PARTY SUPPLIERS. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT.
17 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL, HOWSOEVER CAUSED, INCLUDING BUT NOT LIMITED TO, ANY LOST DATA, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF USE OR LACK OF AVAILABILITY OF FACILITIES INCLUDING COMPUTER RESOURCES, ROUTERS AND STORED DATA, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS OR INFORMATION PROVIDED THROUGH THE SITE, THE PRODUCTS, OR THE TRANSACTIONS CONDUCTED ON OR FROM THE SITE, EVEN IF THE COMPANY OR ANY OF ITS LAWFUL AGENTS, CONTRACTORS, EMPLOYEES OR MANDATARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. IN PARTICULAR, AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR DAMAGES OR LOSSES RESULTING FROM VIRUSES, DATA CORRUPTION, FAILED MESSAGES, DAMAGES ARISING AS A RESULT OF TRANSMISSION ERRORS OR PROBLEMS, TELECOMMUNICATIONS SERVICE PROVIDERS, THE COMPANY’S CONTRACTORS, THE INTERNET BACKBONE, THIRD-PARTY SUPPLIERS OF PRODUCTS OR SERVICES, DAMAGES OR LOSSES CAUSED BY YOU, OR YOUR RESPECTIVE EMPLOYEES, AGENTS, MANDATARIES OR SUBCONTRACTORS, OR OTHER EVENTS BEYOND THE REASONABLE CONTROL OF THE COMPANY. IF, DESPITE THE LIMITATIONS ABOVE, THE COMPANY IS FOUND LIABLE FOR ANY DAMAGE OR LOSS IN CONNECTION WITH THE SITE, IN NO CASE WILL THE COMPANY’S TOTAL LIABILITY ARISING UNDER ANY CAUSE WHATSOEVER (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE OR OTHERWISE) BE FOR MORE THAN, IN THE AGGREGATE, THE LESSER OF $100 OR THE AMOUNT PAID BY YOU FOR THE SPECIFIC PRODUCTS PURCHASED BY YOU AND TO WHICH THE CLAIM RELATES. IF YOU ARE DISSATISFIED WITH THE TERMS OR THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING AND ACCESSING THE SITE. CERTAIN FEDERAL, STATE OR PROVINCIAL LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. FOR THE PURPOSES OF THIS SECTION, “THE COMPANY” SHALL INCLUDE THE COMPANY’S RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, MANDATARIES, CONTRACTORS AND THIRD-PARTY SUPPLIERS.THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRY OF THIS AGREEMENT.
18 COPYRIGHTS AND TRADEMARKS. Material on the Site, including but not limited to texts, images, illustrations, articles, photographs, software, audio clips and video clips, is owned or otherwise provided by the Company, and the Company does not represent or warrant that such material does not infringe the rights of any other person or entity. The material on the Site is protected in Canada and in other jurisdictions by the Copyright Act and by virtue of the applicable international conventions and treaties. The Company is the owner of the copyright in the entire Site and, consequently, the material on the Site may not be copied, reproduced, republished, downloaded, posted, transmitted, distributed or modified, in whole or in part in any form whatsoever, including but not limited to text, audio or video, without the prior written consent of the Company. Trade-marks, logos and service marks (collectively, the “Marks”) displayed on the Site are registered or unregistered Marks of the Company or others, are the property of their respective owners, and may not be used without written permission of the owner of such Marks. Nothing in the Site is to be interpreted as conferring a right to use the Marks or the material protected by the Copyright Act. Notwithstanding the foregoing, the Company authorizes you to make one electronic or paper copy of the information posted on any page of the Site provided that the copy is used solely for non-commercial, personal purposes and, in each and every case, provided that any such copy remains protected by all copyright, trademarks, service marks and other proprietary notices and legends contained on any such page of the Site. This license does not include any resale of the Site or its contents; any collection of product listings, descriptions or prices; any other derivative use of the Site or its contents; any downloading or copying of information for the benefit of any merchant; or any use of data mining, robots, or similar data gathering and extraction tools. You may not frame or utilize framing techniques to enclose any page on the Site or any trademark, logo or other proprietary information (including images, text, page layout, or form) of the Company without express written consent of the Company. You may not use any meta tags or any other “hidden text” utilizing the Company’s name or trademarks without the express written consent of the Company. Any unauthorized use of the Site and/or its contents terminates the permission or license granted by the Company. Except as otherwise may be expressly provided herein, nothing contained in the Terms shall be construed as conferring by implication, estoppel or otherwise any license or right under any copyright, patent, trade-mark or other intellectual property right of the Company or any other person or entity.
19 YOUR MATERIAL. The Company is not responsible for any text, image, video, audio, or any information, content or other materials you may introduce into or post through the Site or any other Company websites including any Company pages on social networking websites and webpages such as Facebook, Twitter or Instagram (collectively, your “Material”). You acknowledge and agree that your Material does not necessarily reflect the views, ideas or opinions of the Company or any of its divisions, affiliates, subsidiaries, directors, officers, employees, agents, contractors and suppliers and that we disclaim any and all responsibility for any of your Material. You agree never to knowingly or otherwise introduce or post Material that is defamatory, libelous, slanderous, obscene, abusive, fraudulent, or that violates any other party’s proprietary rights, promotes hatred, otherwise gives rise to a criminal offence or civil liability on the part of any person or entity, or that is otherwise unlawful or in contravention of applicable laws and regulations. You hereby agree to defend and hold the Company harmless against all claims, damages, liability, losses or expenses resulting from or related to your Material. The Company reserves the right to edit, alter or delete any Material at any time without prior notice. All Material must be solely for non-commercial, personal purposes and may be protected by applicable copyright laws.
22 SURVEILLANCE. The Company may monitor the access to the Site (and any other of its websites) and other activities in relation to the Site (and any other of its websites) and may intervene in this regard. However, the Company makes no representation and gives no warranty to that effect. You consent to such surveillance and intervention, if the Company decides to do it.
23 LINKS TO OTHER WEBSITES. Links and references to other websites are provided to you as a convenience only. The Company has not reviewed and does not expressly or implicitly endorse other websites or any information or material, or the accessibility thereof, via such links, and does not assume any responsibility for any such other websites, information or material posted thereon, or products or services offered thereon. You may not create links from other websites to the Site, except if expressly permitted by the Company. To obtain such permission, please contact us here
24 MODIFICATION OF SITE; RESERVATION OF RIGHTS. The Company may, for any reason in its sole discretion and without notice to you, terminate, change, suspend or discontinue the Site or any aspect of it, including but not limited to any Site content, features or hours of availability and Company will not be liable to you or any third party for doing so. The Company may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or liability. All rights not expressly granted in the Terms are reserved to the Company.
25 ENDUREMENT. The Terms shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors and permitted assigns.
26 GOVERNING LAW. The Site is controlled and operated by the Company from Toronto, Ontario, Canada and the Terms, the Site, any use of the Site and any transaction conducted on or from it shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein without reference to principles of conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods (or any applicable implementing legislation) is expressly excluded.
27 DISPUTE RESOLUTION. You acknowledge and agree that any dispute that may arise between you and the Company in respect of the Terms and the transactions contemplated herein shall be resolved by the provincial and federal courts and tribunals sitting in the Province of Ontario and you hereby irrevocably submit and attorn to the personal and exclusive jurisdiction and venue of these courts.
28 SEVERABILITY. If any one of these conditions shall be deemed invalid, void, or for any reason unenforceable, such condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
30 NO WAIVER. The failure of the Company to enforce any provisions of the Terms or to respond to a breach or default by you or any third party of the Terms shall not in any way waive the right of the Company to subsequently enforce any of the Terms contained herein or to act with respect to similar breaches or defaults.
31 EXPORT LAWS. Products sold or delivered under the Terms shall be subject to export control laws and regulations of Canada. You agree to comply at all times with all such laws and regulations. You hereby agree to indemnify, defend and hold the Company harmless against all claims, damages or liability resulting from breach of the foregoing.
32 ENTIRE AGREEMENT. The Terms, together with all other agreements, terms or conditions incorporated or referred to herein constitute the entire agreement between you and the Company with respect to the use of the Site and any transaction conducted on or from the Site and its contents, and supersede any prior understandings or agreements (whether electronic, oral or written) regarding the subject matter hereof, and may not be amended or modified, except in writing or by the Company making such amendments or modifications available to it pursuant to the Terms hereof.
33 NO ASSIGNMENT. You may not assign your rights or obligations herein without the express written consent of the Company.
34 TERMINATION. The Company reserves the right, at its sole discretion, to terminate your access to all or any part of the Site, with or without notice.
35 HEADINGS. The headings used herein are inserted for convenience of reference only and do not affect the construction or interpretation of the Terms herein.