Last Date: June 2023
These TOU form an agreement between Finning and you. The term "you" refers to the person or entity browsing, accessing or otherwise using (“use” or “using” in these TOU will mean any of the foregoing) the Website.
1. Ownership of the Website and Its Content
The Website and all of the content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by Finning, our licensors, and certain other third parties. All rights, titles, and interests in and to the Content and Intellectual Property available via the Website is the property of Finning, our licensors or certain other third parties, and is protected by Canadian and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Finning owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website. All rights not expressly granted to you in these TOU are reserved.
2. License to the Website
Subject to these TOU, we grant you a non-exclusive, non-transferable, non-sublicensable and revocable license to use the Website.
3. Access to the Website
We retain the right, at our sole discretion, to deny you access to the Website and/or disable access to any of your accounts, at any time and for any reason, including for violation of these TOU. You will cease and desist from any such access or use immediately upon request by us.
4. Data You Upload To Us
Ownership of the data, information, records and/or files that you load, transmit to or enter into the Website (the “User Data”) remains with you or the applicable owner. However, in order for the Website to provide you with valuable insight, you agree to grant to us an irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up, royalty-free, transferable and sublicensable license to access, collect, store and use the User Data: (i) to generate insights through the Website (“Output Data”) which will be shared with you; (ii) to develop and enhance the Website; and/or (iii) in accordance with the Data Governance Statement.
5. No Unlawful or Prohibited Use
Without limiting the generality of the foregoing, you will not (and will not attempt to):
a. send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Website (including any developer community forums) any data, information, pictures, videos, music or other materials or content that:
- (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- (ii) you do not have the lawful right to send, upload, collect, transmit, store, use, publish, or otherwise communicate;
- (iii) is false, intentionally misleading, or impersonates any other person;
- (iv) is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual.
- (v) 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); or
- (vi) encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
b.harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Website, including email addresses, without the express consent of such users;
c. access the Website or any Company proprietary information except through means authorized herein;
d. copy, reproduce, distribute, or in any manner duplicate the Website, in whole or in part;
e. sell, lease, license, sublicense, distribute, assign, transfer or otherwise grant any rights in the Website, in whole or in part;
f. modify, port, translate, or create derivative works of the Website;
g. decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms, of the Website by any means;
h. remove any proprietary notices, labels or marks from the Website;
i. use the Website for purposes of comparison with or benchmarking against products or services made available by third parties;
j. knowingly take any action that would cause the Website to be placed in the public domain;
k. disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Website (e.g., a denial of service attack);
l. attempt to gain unauthorized access to the Website, other computer systems or networks connected to the Website, through password mining or any other means;
m. use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Website or any part thereof or otherwise attempt to discover any source code;
n. use, download or otherwise copy, or provide to any person or entity any Website users directory or other user or usage information or any portion thereof other than in the context of your use of the Website;
o. use the Website for the purpose of building a similar or competitive product or service; or
p. use the Website other than as permitted by these TOU.
6. Data Governance
a. Please click here to review Finning’s current Data Governance Statement, which contains important information about Finning’s practices in collecting, storing, using and disclosing information about identifiable individuals (“Personal Information”) , and which is hereby incorporated into and forms a part of these TOU.
b.You represent and warrant to us that the User Data will only contain Personal Information in respect of which you have provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to: (i) make available the Website; and (ii) create, use and disclose aggregated statistical information for any purpose and without obligations of any kind.
7. Automatic Updates and Upgrades.
We may perform automatic updates or upgrades to the Website from time to time. The Website (and any updates and upgrades) may (i) affect or erase data or settings that you have stored on the Website; or (ii) collect Personal Information (as described in the Data Governance Statement or as separately disclosed at the time of installation). We are not responsible for any affected or erased data, preferences, or settings due to a Website update or upgrade. These TOU govern any upgrades or updates to the Website, unless such upgrades or updates are accompanied by a separate agreement.
You agree that we may perform automatic updates or upgrades to the Website without any further notice or consent. If we provide further notice or requests further consent to a Website update or upgrade, the notice or consent may be received by or provided to you or any authorized user of your device, and you agree that such notice or consent is sufficient for you and all authorized users of your device. The person receiving or providing that notice or consent is responsible for notifying you and all authorized users of the notice and of his or her consent.
You use the Website at your own risk. We do not guarantee or warrant that the Website is compatible with your computer system or that the Website, or any links from the Website, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Website.
9. Communications Not Confidential
We do not guarantee the confidentiality of any communications made by you through the Website. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Website.
10. No Warranty for Security of Device
We do not warrant that a third party cannot access your information should a third party come into possession of your device. We suggest that you use all security features of your device, including any password or locking function, to protect your device and the confidentiality of your information.
11. Third Party Materials, API and Links
We are not responsible for examining or evaluating the content, accuracy, validity, legality or any other aspect of such Third Party Materials, Third Party APIs or Third Party Links. We do not warrant, condition, guarantee or endorse any Third Party Materials, Third Party APIs or Third Party Links and is not liable to you or to any other party for any Third Party Materials, Third Party APIs or Third Party Links or for your misuse or use of Third Party Materials, Third Party APIs or Third Party Links. Third Party Materials, Third Party APIs and Third Party Links contain proprietary content and information that is protected by applicable intellectual property and other laws, including but not limited to copyright. You may not use such proprietary content, information or materials in any way except as authorized by the provider of the Third Party Materials, Third Party APIs or Third Party Links. You may not use any Third Party Materials, Third Party APIs or Third Party Links in a manner that would be, or could be reasonably construed as, a breach of these TOU. We may change, suspend, remove, modify access to or disable access to any Third Party Materials, Third Party APIs or Third Party Links at any time and without notice to You.
YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE WEBSITE WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, RELIABILITY, CURRENCY, TIMELINESS, QUALITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE WEBSITE IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THESE TOU OR THE WEBSITE. WE DISCLAIM ALL LIABILITY OF ANY KIND OF OUR LICENSORS AND SUPPLIERS.
TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TOU, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE WEBSITE EXCEED $10 CDN. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TOU WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
You will defend, indemnify and hold harmless us and all of our officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with:
- a. your breach of any provision of these TOU or any documents referenced herein;
- b. your violation of any law or the rights of a third party (including, without limitation, privacy or intellectual property rights); or
- c. your use of the Website in a manner that it was not designed for or intended to be used, as described in these TOU and in any instructions or guidelines provided by us to you.
15. Changes, Termination and Survival
a. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. Further, we reserve the right to change these TOU at any time and to notify you by posting an updated version of the TOU on the Website. You are responsible for regularly reviewing the TOU, including, without limitation, by checking the date of “Last Update” at the top of this document. Continued use of the Website after any such changes shall constitute your consent to be bound by such changes, with continued provision of the use of the Website constituting consideration from Finning to you for so being bound. Your only right with respect to any dissatisfaction with (1) these TOU, (2) any policy or practice of ours in operating the Website, or (3) any Content available through the Website, is to stop accessing and using the Website.
b. These TOU are effective until terminated by you or Finning. You may terminate these TOU by ceasing to use the Website and cancelling your Account, if applicable. These TOU will terminate automatically and without notice from Finning if you fail to comply with any provision of these TOU. Upon termination of the TOU, you shall cease all use of the Website. You agree that Finning may elect to cease any support of the Website and/or provision of its services that the Website accesses at any time at the sole discretion of Finning. In addition to any other termination right, Finning may terminate these TOU upon 5 days’ notice to you.
c. The following Sections, together with any other provision of these TOU which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these TOU, will survive expiration or termination of these TOU for any reason: Sections 1 (Ownership of the Website and Its Content), 4 (Data You Upload to Us), 6 (Data Governance), 8 (Viruses), 9 (Communications Not Confidential), 12 (Disclaimers), 13 (Limitation of Liability), 14 (Indemnification), 15.c (Survival), 16 (No Export), and 17(General Provisions).
16. No Export
You will comply worldwide with all laws and regulations applicable to the Website. You may not use, export, re-export, import, sell or transfer any aspect of the Website except as authorized by applicable law and regulations and after obtaining our express written consent.
17. General Provisions
a. Choice of Law. These TOU are governed by the laws of the province of British Columbia and federal laws of Canada applicable therein, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Except as restricted by applicable law, you agree to submit to the exclusive jurisdiction and venue of courts in Vancouver, British Columbia, Canada for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, if a dispute arises between you and us, you agree that you will notify us about any dispute you have with us related to these TOU by contacting us.
b.Electronic Communications. You are communicating with us electronically when you use the Website or send email to us. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
c.Notifications. We may provide notifications by posting the notifications on the Website itself or by sending the notifications to the email associated with your account. We are not responsible for any automatic filtering you or your network provider may apply to email notifications.
d.Severable. If any of the provisions contained in These TOU are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from These TOU and all other provisions of These TOU will remain in full force and effect.
e.Entire Agreement. These TOU, and the documents referenced in These TOU, constitute the entire agreement between Finning (and its licensors and suppliers) and you pertaining to the subject matter thereof, and supersedes in its entirety any and all written or oral agreements previously existing between us with respect to the Website. There are no understandings, inducements, commitments, conditions, representations or warranties of any kind, whether direct, indirect, collateral, express or implied, oral or written, other than as contained in these TOU.
f.English Language. It is the express wish of the parties that these TOU and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.