USER AGREEMENT
1. Acceptance. Welcome to the Toronto Building Exchange web site (“TBX") operated by The Toronto Building Exchange Inc. under license from The Canadian Building Exchange Inc. TBX’s products and services (collectively, the "Services") are offered by TBX through web pages at the URL
http://www.tbxhome.com, and pages linked thereto which display TBX’s branding bars or logos.
By accessing TBX or using any of the Services, you agree, without limitation or qualification, to be bound by these terms and conditions and such other additional terms, conditions, rules and policies which are displayed or to which you may be directed in connection with any particular Service, as may be modified by TBX from time to time (collectively the "Terms and Conditions"). TBX reserves the right to modify any of these Terms and Conditions without prior notice. Your continued use of TBX following these changes will constitute your acceptance of them.
Please note, since the Terms and Conditions contain legal obligations, you should read them carefully, and since they may be updated from time to time, you should check back periodically. The most current version of the Terms and Conditions can be found at
http://www.tbxhome.com/public/user_agreement.asp .
2. Privacy. For information on how user information is collected and used by TBX, please consult our
Privacy Policy, which forms part of this agreement.
3. Member Eligibility & Registration. Many of the Services made available over TBX require registration. Should you choose to register for such Services or related features, you agree to provide accurate and current information about yourself as required by the relevant registration process, and to promptly update such information as necessary to ensure that it is kept accurate and complete.
If you provide any information that is untrue, inaccurate, not current or incomplete, or TBX has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, TBX has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Member Services are available only to persons who work as, provide work as, or consider themselves professionals, contractors, tradesmen or labourers of at least one of the construction trade categorizations found at
http://www.tbxhome.com/public/trade_categorizations.asp. If TBX has reasonable grounds to suspect that you are not related or involved in at least one trade categorization at
http://www.tbxhome.com/public/trade_categorizations.asp , TBX has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Member Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, Services are not available to minors or persons under legal disability. If you do not qualify, please do not use our Services. Further, our services are not available to temporarily or indefinitely suspended members.
4. Accounts & Passwords. You agree to be responsible for: (a) maintaining the confidentiality of any passwords or other account identifiers which you choose or are assigned as a result of any registration with TBX, and (b) all activities that occur under such password or account. Further, you agree to notify TBX of any unauthorized use of your password or account.
TBX shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section 4.
5. Conduct. In consideration of the availability, and your use, of the Services, you agree not to:
a. post, transmit, or otherwise distribute any information constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability including without limitation a material misrepresentation or breach of contract, or otherwise use TBX or any of the Services in a manner which is contrary to law;
b. defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including without limitation, rights relating to privacy and publicity;
c. post, transmit, or otherwise distribute any inappropriate, profane, defamatory, infringing, confidential, or unlawful material or information;
d. post, transmit, or otherwise distribute any information or software which contains a virus, bot, trojan horse, worm or other harmful or disruptive component;
e. upload, post, publish, transmit, reproduce, or otherwise distribute in any way, information, software or other material obtained through TBX or the Service, or any derivative work thereof, which is protected by copyright, or any other intellectual property right, without obtaining permission of the copyright owner or rightholder;
f. impersonate or falsely represent your identity or association with any person, including a TBX representative or member;
g. use, reproduce, sell, re-sell or otherwise exploit TBX, or any of the Services, for any commercial purposes not authorized by these Terms and Conditions; and
h. copy, imitate, re-invent, re-configure, revise, create a derivative of, or create a work or process, which is intended to be or which is substantially similar to TBX; and by becoming a member of TBX you agree that you will become privy to knowledge about the operations and processes of TBX which are not generally known by the public and which are hereby deemed confidential, whereby your mis-use of the confidential information would likely cause damages to TBX which would be actionable and which would need to be rectified by injunctive or other equitable relief.
6. Access to Content. You acknowledge that TBX has no obligation to monitor your use of the Service or any content, products or other services (collectively, "Content") accessible to you through TBX or any of the Services, and you acknowledge that TBX is not obliged to pre-screen Content posted by others. However, you agree that TBX has the right to monitor your use of Content electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, in order to operate TBX or any of the Services properly, or to protect itself or its users in accordance with TBX's Privacy Policy. TBX reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of the Terms and Conditions. To the extent TBX offers access to third party web pages, TBX exercises no control over such third party content, web pages, or sites.
YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO REVIEW AND EVALUATE ALL CONTENT ON TBX, AND THAT ANY AND ALL RISK ASSOCIATED WITH THE USE OF, OR RELIANCE ON, SUCH CONTENT RESTS WITH YOU. YOU FURTHER AGREE THAT TBX SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES, AS A RESULT OF, OR IN CONNECTION WITH YOUR USE OF, OR RELIANCE ON, ANY SUCH CONTENT.
7. Members’ Content. In respect of any and all content you elect to post on TBX which is accessible by other TBX members or the public, you grant TBX a world-wide, royalty-free, nonexclusive, and unrestricted license to use, copy, adapt, transmit, publicly display and perform, distribute and create compilations and derivative works from such content for the limited purposes of publishing such content and promoting the specific Service to which such content was submitted.
With respect to any and all content you elect to post or transmit using the Services, you agree that TBX may preserve and disclose any content associated with your account where required to do so by law or where such preservation or disclosure is reasonably believed by TBX to be necessary to ensure compliance with the law, enforce the Terms and Conditions or protect the rights and interests of TBX or any other person.
8. Dealings with Third Parties. You acknowledge and agree that your correspondence or business dealings with any third parties, found on, or through, TBX or any of the Services, including payment for and delivery of related goods and services, and all other terms, conditions, representations and warranties related to such dealings, are solely as between you and such third parties.
Further, the responsibility for ensuring compliance with all applicable laws in connection with any such transactions shall be the user's alone. You agree that TBX shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, any of such dealings or transactions.
9. Pay Services. Services may be offered by TBX on a payment basis. Should you choose to participate in a pay Service, you will be required to register as described in Section 3 above, and you will be assigned an account for such pay Service based on the information you provide to TBX at such time. You agree to pay all the fees applicable for such pay Service as you incur through your TBX account, together with all applicable taxes. Unless otherwise indicated on the relevant Service description page, all fees for a Service purchased through your TBX Account will be billed immediately to your TBX account or the credit card you designated for the particular Service, and subject to applicable legislation are non-refundable. TBX reserves the right to change the amount of, or basis for determining, any fees for a pay Service, and to institute new fees or terms at any time effective upon notice to you, which notice may for certainty include the posting of any such changes on the relevant pages related to the use of the pay Service.
10. Web Based Communications. To the extent TBX offers webmail or other web based email or communication services over TBX (collectively "Webmail"), these are provided on an "AS IS" basis without representations, warranties or conditions of any kind, and you acknowledge and agree that TBX shall have no responsibility for, or liability in respect of, any aspect of the Webmail services, including without limitation for any lost or damaged data or any acts or omissions of TBX.
The components and any aspects of the Webmail services, including email, information and other data you store on the Webmail service, may be deleted by TBX at any time for any reason or for no reason at all, in TBX's sole discretion, with or without notice to you. TBX shall have no obligation to maintain any content in your Webmail account or to forward any unread or unsent messages to you or any third party.
You agree to comply with all applicable laws and the Terms and Conditions in using a Webmail service and are solely responsible for all acts or omissions that occur under your account or password. In addition to other prohibited conduct described herein, you may not use the Webmail service to post, transmit or otherwise facilitate the creation or distribution of chain letters, junk e-mail, spam or any duplicative or unsolicited messages, surveys, contests or schemes. Further you may not forge headers or otherwise manipulate any identifiers serving to disguise the origin of any content transmitted using the Webmail service.
11. Service Modifications. You acknowledge and agree that TBX reserves the right at any time to modify or discontinue any of the Services with or without notice to you, and that TBX will not be responsible or liable, directly or indirectly, to you or any other person in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such modifications or discontinuance.
12. Termination. You acknowledge and agree that TBX, in its sole and absolute discretion, may, without notice to you, suspend or terminate your account or your use of, or access to, any of the Services, and remove and discard any information or content related to such Service (and your use thereof), for any reason, including where TBX believes that you have violated any of the Terms and Conditions. You further agree that TBX shall not be liable to you or to any other person as a result of any such suspension or termination.
If you are dissatisfied with TBX, any of the Services or with any terms, conditions, rules, policies, guidelines, or practices of TBX in operating TBX and the Services, your sole and exclusive remedy is to obtain a refund of any paid but unused monies in your TBX account, and to discontinue using TBX and the Services.
13. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) TBX AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THAT TBX MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS (as used in this section "WARRANTIES") OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND THAT ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED; AND (B) TBX SPECIFICALLY MAKES NO WARRANTIES THAT TBX OR ANY OF THE SERVICES, INCLUDING ANY CONTENT, INFORMATION, PRODUCTS OR SERVICES OBTAINED FROM OR THROUGH THE USE OF TBX OR THE SERVICES, WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT SUCH SERVICES OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
14. Limitation of Liabilities. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TBX, INCLUDING ITS AFFILIATES, SUPPLIERS, CO-BRANDERS AND OTHER PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, AND ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS, GOODWILL OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER TBX HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (A) THE USE, INABILITY TO USE OR PERFORMANCE OF ANY OF THE SERVICES OR TBX, OR (B) ANY UNAUTHORIZED ACCESS TO OR MODIFICATION TO ANY OF YOUR CONTENT OR TRANSMISSIONS, OR (C) ANY OTHER MATTER RELATING TO TBX OR ANY OF THE SERVICES, REGARDLESS OR WHETHER ANY OF THE FOREGOING IS DETERMINED TO CONSTITUTE A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE.
15. Indemnity. You agree to defend, indemnify and hold TBX, its affiliates, suppliers, co-branders and other partners, directors, officers, employees and agents harmless from any and all liabilities, claims, costs and expenses, including reasonable attorneys' fees, related to or in connection with your, or any user of your account's: (a) authorized or unauthorized use of TBX or any of the Services; (b) placement, posting or transmission of any message, information or other content on TBX or through any of the Services; or (c) violation of the Terms and Conditions.
16. No License to Members. Except as expressly provided, nothing herein or within any of the Services shall be construed as conferring any license under any of TBX's or any third party's intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, you acknowledge and agree that certain content available through and used to operate TBX and Services is protected by copyright, trademark, patent, or other proprietary rights of TBX, its affiliates, licensors, and/or service providers. You agree not to copy, adapt, translate, modify, decompile, disassemble, or reverse engineer any business process, system, software, application or program used in connection with the Services or TBX.
17.Trademarks. All products, brands and company names and logos used on TBX are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on TBX without the express written consent of TBX or the owner of the mark, as appropriate, is strictly prohibited.
18. Arbitration. Any controversy, claim or dispute arising out of or relating to these Terms and Conditions, your use of TBX or Services or the relationship which results from these Terms and Conditions, including without limitation, the performance, breach, enforcement, existence or validity of the matters provided for in these Terms and Conditions which cannot be amicably resolved, even if only one of the parties declares that there is a difference (collectively, a "Claim"), will be referred to and finally settled (to the exclusion of the courts) by private and confidential binding arbitration before a single arbitrator held in Toronto, Ontario in English and governed by Ontario law pursuant to the Arbitrations Act (Ontario). The arbitrator shall be a person who is legally trained and who has experience in the information technology field in Canada and is independent of either party. Any such Claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim, controversy or dispute of any other party. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceedings against us. Notwithstanding the foregoing, we reserve the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts, and we reserve the right to join you as a party in court proceedings that we may have to bring against persons who are not a party to this agreement whether your liability is on a joint or several basis with them.
19. Submission of Ideas and/or Suggestions. UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OF ANY IDEA AND/OR SUGGESTION OR RELATED MATERIAL TO TBX BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION. BY SUBMITTING THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL TO TBX, YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND ARE REPRESENTING AND WARRANTING TO TBX THAT THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL ARE WHOLLY ORIGINAL WITH YOU, THAT NO ONE ELSE HAS ANY RIGHTS IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND THAT TBX IS FREE TO IMPLEMENT THE IDEA AND/OR SUGGESTION AND TO USE THE RELATED MATERIAL IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY TBX, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY.
20. Dividend Referral Plan. Once you join TBX as an ordinary member you become eligible to participate in TBX’s Ordinary Member Dividend Referral Plan (“OMDRP”). The OMDRP shall be paid quarterly, one (1) month after the end of each quarter, commencing for the period from April 1, 2003 to June 30, 2003, as follows:
a. when, on referral from you, a construction industry individual or company registers as a new TBX member (“New Member”), and at the time of registration provides your member number to us, you shall receive an “Ordinary Member Referral Margin”, as defined below, on transactions that the New Member does with TBX. If that New Member, in turn, refers another construction person to TBX, you shall receive an “Indirect Ordinary Member Referral Margin”, as defined below, on transactions that the other new member does with TBX, and so forth;
b. the “Ordinary Member Referral Margin” shall be four percent (4%) of the revenue generated from the New Member, actually received by TBX, to a maximum of eighteen dollars ($18.00) per new member referred by you; and
c. the “Indirect Ordinary Member Referral Margin” shall be four percent (4%) of all the revenue generated from the referrals of the New Member, actually received by TBX, to a maximum of eighteen dollars ($18.00) per new member referred by the New Member; plus four percent (4%) of all the revenue generated from the referrals of the referrals of the New Member, actually received by TBX, to a maximum of eighteen dollars ($18.00) per new member referred by the referrals of the New Member, and so forth. However, it is confirmed that under no circumstances shall the OMDRP exceed three levels, whereby level one is the New Member, level two is the referral of the New Member, and level three is the referral of the referral. In order to be eligible for Indirect Ordinary Member Referral Margin, the referrals of the New Member and the referrals of the referrals of the New Member, as the case may be, must provide the referring member’s member number at the time of registration with TBX.
The OMDRP has an accrual term of one (1) year, commencing from the date when you refer your first New Member, and accruals to your OMDRP for all New Members and referrals from them shall thereafter cease automatically. Notwithstanding anything to the contrary herein: (i) OMDRP’s are non-transferable; (ii) unpaid OMDRP’s have no cash value; (iii) TBX in its sole discretion may decide to modify, extend, suspend or terminate the OMDRP plan without any prior notice to you; (iv) the amount and timing of payment to you of the OMDRP is entirely discretionary on the part of TBX; and (v) TBX in its sole discretion may discontinue or refuse payment of the OMDRP to any person.
21. Miscellaneous. The Terms and Conditions constitute the entire agreement between TBX and you pertaining to your use of the Services and supercede any prior agreements between you and TBX with regard to this subject matter. TBX's failure to insist upon or enforce strict performance of any right or provision of the Terms and Conditions shall not constitute or be construed as a waiver of any right or provision. If any of the provisions (or parts thereof) contained in the Terms and Conditions are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) contained herein. The Terms and Conditions shall be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein. The parties have required that the Terms and Conditions and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s'y rattachent soient rédigés en anglais.
