The General Terms and Conditions
Toromont Industries Ltd (“Toromont”) provides the Website or Mobile App (the “ Toromont Platform”) for your access and use, including any feature, content, tools, and Services accessible through the Toromont Platform, subject to these Terms and Conditions. By accessing and/or using the Toromont Platform, you, the “User”, agree to fully accept and be bound by these Terms and Conditions without modification. The term “User” shall mean the firm, company, or organization accessing and using the Toromont Platform. The term “End User” shall mean individual users using or accessing the Toromont Platform for their own personal use or on behalf of such firm, company, or organization (including, Administrators and Authorized Individual Users).
In addition to these terms and conditions, the provision of the Services through the Toromont Platform are subject to the applicable policies and terms and conditions of such Services and can be found on the Toromont Platforms (the “App Specific Terms”, and together with these terms and conditions, the “Terms and Conditions”).
You are encouraged to check the Terms and Conditions from time to time to see if there are any updates or changes that impact you. If you do not agree to the terms of the Terms and Conditions, or a change or update to the Terms and Conditions, you must discontinue use of the Services immediately.
Unless otherwise agreed by the parties, the Terms and Conditions applies to User’s use of the Services and the Toromont Platform, and supersedes any previous agreements with respect to the subject matter herein.
The following definitions shall apply to the Terms and Conditions:
“Affiliate” means, with respect to any entity, any other entity which directly or indirectly controls, is controlled by or is under common control with such entity, and for the purposes of this definition the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise and the term "controlled" shall have a meaning correlative to the foregoing;
“Administrator” means the person(s) appointed by the User to administrate the User’s account, including adding and revoking Login Credentials of Authorized Individual Users in accordance with the
Terms and Conditions.
“Authorized Individual Users” means User’s personnel, agents or contractors who are provided with access to the Services through the User’s account by Administrator or by default through the Services.
“Toromont Proprietary Information” means any and all intellectual property rights that Toromont holds in the Toromont Platform and Services, including the software used to provide the Services and Toromont Platform.
“Fees” means, with respect to the Terms and Conditions, the fees payable to Toromont by the User.
2. Application of these Terms and Conditions
2.1. If you are an End User, you agree to the following:
- that you are obligated to comply with the requirements of the Terms and Conditions – even if such requirements refer to “User”.
- to comply with the terms and conditions of the Terms and Conditions as applicable to your use of the Toromont Platform and Services; and
- in using the Toromont Platform and Services, you are only doing so on your own behalf (if you are a sole proprietor) or in the course of your employment with User.
3.1. The “Services” provided by Toromont pursuant to the Terms and Conditions consist of access to and functionality available for purchase in Canada through the applicable Toromont Platform. The Toromont Platform and associated Services are being provided as a convenience to User and are provided by Toromont on an as-is and as available basis.
3.2. Toromont may: (a) from time to time make modifications to any aspect of the Toromont Platform and Services, including without limitation its design, functionality and appearance; and (b) cease providing the Services at any time, without notice to the User or End User.
3.3. Toromont may at any time suspend or limit the User’s or End User’s access to or use of any part of the Toromont Platform and Services, including for actions by the End User, User, its Administrator or its Authorized Individual Users that are deemed by Toromont:
- to be a breach, suspected breach, or anticipated breach of the Terms and Conditions or compromise the integrity of the Toromont Platform and Services;
- to endanger the use and operation of Toromont Platform and Services; or
- to be a use of the Toromont Platform and Services for purposes other than outlined in the Terms and Conditions.
3.4. Toromont may contract with subcontractors to provide the systems and perform parts of Services.
4. Mobile Application
4.1. The Mobile App is available on the Apple® and Android® mobile platforms (“App Platforms”). User acknowledges that access to and availability of the Mobile App may be dependent on the applicable App Platform. You agree that the Terms and Conditions are between you and Toromont and not the applicable App Platform. The applicable App Platform is not responsible for the Mobile App, the content thereof, maintenance and support services, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). Users of the Mobile App are subject to additional terms and conditions from the App Platforms (e.g. http://www.apple.com/legal/itunes/ http://www.google.com/mobile/android/market-tos.html)
5. Login Credentials
As part of the Services, Toromont will provide the Administrator with a user ID and password ("Login Credentials") in order to allow the Administrator to access and use the Services and assign and manage Authorized Individual Users of the Services by adding and revoking access to its Authorized Individual Users through Login Credentials. User is responsible for ensuring that Administrators have the necessary authority to administrate access to and use of the Services by Authorized Individual Users. Toromont may change Login Credentials at any time. The User shall, and shall ensure that its Administrator and Authorized Individual Users (as applicable), shall
- keep the Login Credentials confidential and not allow parties to share Login Credentials;
- not permit any third party to access or use the Services without the express written consent of Toromont; and
- immediately revoke access from any Authorized Individual User that is no longer authorized by User to use and access the Services on behalf of User, including in the event that the Authorized Individual User is no longer in the employ of User or is no longer authorized to utilize the Services.
User is responsible and liable for all actions taken, equipment rented, payments incurred and services requested using Login Credentials assigned to User, its Administrator and its Authorized Individual Users, whether or not authorized by User. Toromont may act upon the User’s (and Administrators and Authorized Individual Users) identification of such parties given electronically, and has no liability for the use of such Services by the Authorized Individual Users. For clarity, the actions and omissions of User’s Administrator and Authorized Individual Users are binding on User.
If any User account in not active for a period of 12 months, Toromont reserves the right to deactivate and delete all data pertaining to or derived from such inactive account.
6. User Responsibilities
6.1. The User (or Authorized Individual User, as applicable) is solely responsible:
- the information it enters into the Services, including with respect to the accuracy and correctness of such information;
- for obtaining at the User’s own cost all equipment, software and/or Internet services (including browser software and Internet service provider) necessary to enable the User to access and use the Services;
- for implementing further procedures and measures necessary to safeguard and back-up the User’s data and records; and
- ensuring Administrators and Authorized Individual Users comply with the Terms and Conditions.
6.2. In using the Toromont Platform and Services, the User and its Authorized Individual Users will at all times:
- comply with all applicable laws, rules and regulations;
- comply with all procedures, as established or modified by Toromont, in relation to the User’s use of the Toromont Platform and Services;
- use the Services strictly for its own business purposes and in accordance with the Terms and Conditions for the purposes contemplated by the Terms and Conditions;
- not tamper with or otherwise modify the Toromont Platform and Services; and
- take reasonable precautions to protect the security, privacy and confidentiality of the Toromont Platform and Services as accessible by the User.
6.3. The User will not, and will ensure that its Administrator and Authorized Individual Users do not:
- use the Toromont Platform to make any fraudulent or false requests for Services, or a Service request for which the User does not have the authority to make;
- use manual or automated software, devices, scripts robots, offline readers, crawlers or other means or processes to access, "scrape," "crawl" or "spider" or other such devices or technologies to access the Services;
- use the Toromont Platform or Services in any way other than as contemplated by the Terms and Conditions;
- post, send or otherwise make available through the Services any material that:
- contains any virus, trojan, worm or similar deleterious program that may damage or interfere with the operation of any aspect of the Services;
- infringe Toromont’s or a third party's intellectual property rights;
- is defamatory, harassing or obscene; or
- is illegal, fraudulent, misleading or deceptive.
- make and distribute copies of the Toromont Platform and Services;
- attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile or translate the Toromont Platform or Services;
- create derivative works of the Toromont Platform or Services;
- exploit, copy or use any component of the Service for any commercial purpose other than as provided in the Terms and Conditions;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights or compromise any person or entity’s contact or financial information;
- attempt to derive the source code of the Toromont Platform or Services; or
- remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Toromont Platform or Services.
6.4. The User will provide to Toromont and update all information and content that is reasonably necessary for Toromont to provide the Services to the User and ensure that this information is both accurate and complete and delivered to Toromont in a timely manner.
7. Fees and payment
7.1. Toromont shall issue an invoice based on the Services requested and User agrees to pay such invoices in accordance with the payment terms set out on an applicable invoice. Fees exclude any applicable federal and provincial taxes and duties (the User is responsible to pay all applicable taxes).
7.2. Unless conflicting late payment terms are stated on an invoice, any amounts not fully paid within the timeframes set out in the Terms and Conditions shall accrue interest at the lower of 18% per annum (1.5% per month) and the highest rate of interest provided by and allowed by applicable law, until paid in full.
8. Disclaimer of Warranties and Limitation of Liability
8.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS AND CONDITIONS, ALL SERVICES AND THE TOROMONT PLATFORM ARE PROVIDED “AS IS” AND “AS-AVAILABLE”, AND THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, UNDER THE TERMS AND CONDITIONS, REGARDING ANY MATTER, INCLUDING NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
8.2. THE SERVICES AND TOROMONT PLATFORM ARE PROVIDED FOR USER’S CONVENIENCE AND TOROMONT’S AGGREGATE LIABILITY UNDER THE TERMS AND CONDITIONS, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), AS A RESULT OF BREACH OF WARRANTY, STRICT LIABILITY, INDEMNITY OR UNDER ANY OTHER THEORY OF LIABILITY WHATSOEVER, WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT EXCEEDING TWO HUNDRED AND FIFTY ($250) CANADIAN DOLLARS.
8.3. IN NO EVENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), AS A RESULT OF BREACH OF WARRANTY, STRICT LIABILITY, INDEMNITY OR UNDER ANY OTHER THEORY OF LIABILITY WHATSOEVER, WILL TOROMONT BE LIABLE UNDER THE TERMS AND CONDITIONS FOR: (I) ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES; OR (II) FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL, CHARACTERIZED AS LOST REVENUE, LOST SAVINGS OR LOST PROFITS; EVEN IF TOROMONT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. REGARDLESS OF WHETHER SUCH LOSSES ARE DEEMED TO BE DIRECT OR INDIRECT DAMAGES, TOROMONT SHALL NOT BE LIABLE UNDER THE AGREEMENT FOR ANY DAMAGES RELATING TO A LOSS OF DATA, AND USER IS RESPONSIBLE FOR THE BACKUP OF ITS DATA.
9.1. The User shall indemnify and promptly reimburse Toromont for the defense of, and hold harmless Toromont and its officers, directors and employees from and against any and all third party claims, actions, lia¬bilities, losses, damages, judgments, grants, costs and expenses (including legal fees and expenses) arising out of or in connection with access and use of the Toromont Platform or Services by User, its Administrators and Authorized Individual Users.
10.1. The User agrees and acknowledges that all intellectual property rights in and to:
- the Services;
- the Toromont Platform;
- Toromont tradenames and trademarks, logos and artwork; and
- training materials or other materials accessed through the Services;
are owned by Toromont or its licensors. Except as expressly set out herein, nothing in the Terms and Conditions shall grant User any interest or other right in, to or under, the ownership of all patents, copyrights, trade-marks, service marks, trade secrets and other intellectual property relating to or associated with (a) – (d) above. User may not reproduce, republish, distribute, display, transfer, re-sell or re-distribute any portion of the Services or make any portion of the Service available to any third party without Toromont’s express written consent.
10.2. The User shall under no circumstances remove or otherwise alter any Toromont copyright, trademark, service mark or other proprietary notices on any complete or partial copies of Toromont Proprietary Information.
11. Toromont License
Subject to User’s compliance with the applicable the App Specific Terms, Toromont grants to User a non-exclusive, non-transferable, non-assignable and revocable limited license to use and access the Services solely for the purpose of making proper use of such Services in the manner contemplated in the Terms and Conditions.
12. Third Party Content
12.1. Certain names or logos are service marks or trademarks of Toromont. All other service marks and trademarks are the property of their respective owners. Toromont is not responsible for other service marks, trademarks, and company names that may be the trademarks and/or service marks of their respective owners, nor does the use of third party names or trademarks, or any references to their products or services constitute an endorsement by Toromont of such parties’ or their products or services. Toromont does not endorse or warrant the accuracy or reliability of, or assume any liability in connection with, any content that is provided or posted by third parties, or any of their products or services.
13. Term and Termination
13.1. The Terms and Conditions are effective on the date on which the User commences use of the Toromont Platform or Services and continues until terminated by Toromont or User discontinues use of the Services or Toromont Platform for a period of time to be established by Toromont. The User must pay all Fees due and payable to Toromont up until the date of termination. Toromont reserves the right to stop access to the Toromont Platform and Services at any time, with or without notice.
14.1. Nothing in the Terms and Conditions makes a party an agent, employee, representative, partner or joint venturer of the other.
14.2. The User may not assign the Terms and Conditions or any part thereof without Toromont’s prior written consent.
14.3. Toromont shall have the right, no more than once annually, at its own expense, to perform an inspection of the User’s relevant records and systems solely for the purpose of ensuring compliance with the requirements of the Terms and Conditions. Should the audit determine that the User has not paid the Fees applicable to its actual usage of the Services, the User shall immediately pay the difference and shall also pay Toromont’s reasonable expenses relating to the audit.
14.4. The law of the Province of Ontario governs the Terms and Conditions. The User agrees to submit to the exclusive jurisdiction of the courts of Ontario for the determination of any dispute concerning the Terms and Conditions. The User waives any rights under the Class Proceedings Act, 1992 of the Province of Ontario, S.O. 1992, Chapter 6, to have the action in which the User asserts the User’s claim certified as a class proceeding and the User appointed as a representative plaintiff.
14.5. Any provision of the Terms and Conditions that should, by their nature, survive termination or expiration of the Terms and Conditions shall survive such termination or expiration.
14.6. The failure of either party to exercise any right, power or option given under the Terms and Conditions, or to insist upon the strict compliance with the Terms and Conditions, shall not constitute a waiver of the terms and conditions of the Terms and Conditions with respect to that or any other subsequent breach thereof.
14.7. Any notice required under the Terms and Conditions may be given to Toromont at the address below and to the User by notice through the Access Tool or at the contact information the User has provided. Additional information relating to the Services is available by contacting Toromont by one of the following methods:
3131 Highway 7 West
PO Box 5511
Attention: General Counsel
14.8. Les parties reconnaissent que ce contrat a été négocié et est rédigé en langue anglaise. The parties acknowledge that this contract was negotiated and is made in the English language.