Toughduck.com Terms of Service
- Consent to Electronic Communication
When you visit the Site, use services which are provided on or through the Site (including the Services) or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email, or by posting notices on the Site. 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 and/or signed.
- Modification to the Site
We may revise this Agreement, at any time, by updating this posting. We may provide notice to you of material revisions by means of a general notice on the Site. Your continued use of the Site after such revisions are posted, will signify your agreement to these revised terms. Therefore, you should visit this page periodically to review this Agreement.
- Ownership of Content
Our Content: Except for Your Content (which is discussed below), all materials displayed or otherwise accessible on the Site, including, without limitation, text, photographs, images, illustrations, graphics, icons, code (collectively, “Our Content“) and the selection and arrangement of Our Content on the Site are protected by copyright, pursuant to Canadian copyright laws, international conventions and other copyright laws. We either own the intellectual property rights, including copyright, or have acquired the necessary rights or licences, in and to Our Content. Portions of Our Content may have been licensed to us or published on the Site by third parties. Any reproduction, modification, publication, transmission, transfer, sale, distribution, display or exploitation of the Site or Our Content, whether in whole or in part, without our express written permission, is strictly prohibited. The display of Our Content does not imply that you have been granted a license by us or other entities with respect to it.
Your Content: You retain ownership in and to materials you submit to us, including, without limitation, text, photographs, images, illustrations, graphics, stories and icons (collectively, “Your Content“), but you agree to grant us a sub-licensable, irrevocable licence to use Your Content, as we see fit, in our sole discretion, for the purpose of providing the Services and in connection with any sale of Tough Duck in whole or in part, including the assets thereof. For greater certainty, any communication between you and Tough Duck, such as email, phone calls, SMS or other correspondence, in which you offer suggestions, comments or ideas for improving or modifying the Site will be deemed to be non-confidential and non-proprietary and you agree that such information may be used by us without any limitation whatsoever. You grant to Tough Duck and its affiliates a royalty-free licence to use Your Content and any such comments, suggestions or ideas in any manner or media, globally, forever, without any obligation to you. This includes the right to use any ideas you submit (including ideas about our Site or advertising campaigns) in any manner that Tough Duck chooses, without any obligation to you. We reserve the right to disclose Your Content, at any time, as is required to comply with applicable laws, and the right to remove any of Your Content that is in violation of the terms and conditions of this Agreement. You also agree that any rights you assert in and to Your Content will be subject to standards of commercial reasonableness. You represent and agree that you will not post to the Site or the Services, any trade secrets, confidential information, intellectual property and other proprietary information of any other person, without authorization from such other people, or any obscene or defamatory content. Your Content (and our use thereof in accordance with this Agreement) shall not knowingly infringe the intellectual property rights, including copyright, patents, trade-marks or trade secrets, of any third party. You hereby indemnify and hold harmless, Tough Duck and its officers, directors, subsidiaries, affiliates, employees, partners, representatives, agents, licensors and their respective successors and assigns (collectively, its “Others“), from any and all liability or loss, including reasonable counsel fees, which we suffer in connection with any claim or action by reason of a breach of the foregoing representations and warranties.
Reporting Infringement: If you believe in good faith that any material that is made available on the Site infringes your copyright, please contact us at firstname.lastname@example.org.
Trademarks: Certain words, phrases, names, designs or logos on the Site may constitute trademarks, services marks, or trade names that are owned by us or others, including, without limitation, Tough Duck and Design, which is a registered trademark of Winnipeg Pants & Sportswear Mfg. Ltd., and Work King and Design, which is a registered trademark of Winnipeg Pants & Sportswear Mfg. Ltd. The display of such marks on the Site does not imply that you have been granted a license by us or others with respect to them.
- Limited Licence
Subject to the terms and conditions of this Agreement, you are granted a limited personal, non-exclusive, non-transferable, revocable license to access, view and use the Site, including a limited license to download, print and store single copies of Our Content from the Site, for your personal use, provided that you maintain all copyright and other notices contained in such items and you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, in the Site. Our Content must not be reproduced, republished, or disseminated in any manner or form without our prior written consent or the prior written consent of the third parties from which such information was collected, as the case may be.
- Prohibited Uses
While you use the Site and the Services, you must comply with all applicable laws, rules and regulations. In addition, use of the Site and the Services is based on the following rules of conduct. You will not:
- post, transmit, or otherwise make available any material that is or may be (a) threatening, harassing, degrading, hateful, or intimidating; (b) defamatory; (c) fraudulent or tortious; (d) obscene, indecent, pornographic, or otherwise objectionable; or (e) an infringement of another person’s privacy by disclosing the personal information of another individual without their knowledge and consent;
- post, transmit, or otherwise make available, any material that may violate the proprietary rights of any third party, including, without limitation, copyrighted software, photographs, texts, videos or artwork or any moral rights associated therewith;
- use the Site in a manner which will violate or solicit the violation of any applicable local, provincial, territorial, state, national or international law, rule or regulation, including, without limitation, applicable privacy laws and the statute known as An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications (Canada) (“CASL“);
- use the Site to post transmit, or otherwise make available any material which would: (a) give rise to criminal or civil liability; (b) encourage conduct that constitutes a criminal offence; or (c) encourage or provide instructional information about illegal activities;
- impersonate any person or entity, including, but not limited to, any of our representatives; falsely state or otherwise misrepresent your affiliation with any person or entity; or express or imply that we endorse any statement you make without our prior written consent;
- post, transmit, or otherwise make available any virus, worm, trojan horse, spyware, or any other computer code, file, or program that may, or is intended to, damage or hijack the operation of any hardware, software, server or telecommunications equipment;
- conduct any systematic or automated data collection activities (including, without limitation, scraping, data mining, data extraction and data harvesting) on or in relation to the Site, without our prior written consent;
- interfere with or disrupt the Site;
- post, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” investment opportunity, or any other form of solicitation;
- use the Site for any commercial purposes other than those which are expressly set out in this Agreement; or
- use the Site if you are a minor, except in accordance with applicable laws, and with the approval of your parent or guardian.
Any person who is found, or reasonably suspected, to have violated the rules of conduct provided above may be barred from using the Site, in our sole discretion, and may be subject to other legal remedies.
- Practices Regarding Use and Storage
Storage or Deletion of Content: You agree that we have no responsibility or liability for the deletion of, or the failure to store or to transmit, any information maintained by us, including, without limitation, Your Content and Our Content.
Limits on Storage: We retain the right to create limits on use and storage, at our sole discretion, at any time, with or without notice.
Our Access to Stored Content: We also reserve the right to access, read, preserve, and disclose any information in a manner we reasonably believe is necessary, including, without limitation, Your Content, to: (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security or technical issues; (d) respond to user support requests; or (e) protect our rights, property or safety, our users or the public. We will not be responsible or liable for the exercise or non-exercise of our rights under this Agreement.
Monitoring: We have the right to access the Services, Our Content and Your Content at any time, to maintain their effective operation, to provide upgrades to the software or other system components and to review your use of the Services, Our Content and Your Content. We reserve the right, but do not assume the responsibility or obligation, to monitor, view and audit transactions and communications (inbound and outbound), in our sole and absolute discretion, in order to manage the Site and the Services and for such other purposes as we shall deem necessary or advisable. If we determine, in our sole and absolute discretion, that you have breached or will breach a term or condition of this Agreement, we may take any action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party. Further, in such event, we may, in our sole and absolute discretion, immediately terminate this Agreement and your access to the Site and the Services, all without notice to you.
Industry Analysis: We reserve the non-expiring right to use and disclose (for commercial purposes or otherwise) the textual and numerical statistical portion of all data in the Site and the Services at any time to conduct analysis for industry trends, provided that such data shall not be singularly isolated and labelled as a particular user’s data.
- Maintenance Outages
We reserve the right, as reasonably necessary or convenient, either for our own purposes or to improve the quality of any of the components comprising the Site or the Services, to change rules of operation for the technologies therein comprised, system interfaces, utilities, operating and other systems and software, and to implement enhancements, amendments or updates thereto. To minimize the effect of service outages, we will undertake reasonable efforts to schedule times during which the Site or the Services will be unavailable to you, due to maintenance.
- Customer Service
We may make customer service features available to you, as a courtesy only. We are not obliged to provide customer service to you and our decision to do so shall not create an obligation to provide additional customer service to you.
If you are accepting the terms and conditions contained in this Agreement on behalf of another person, you represent and warrant that you have full legal authority to bind that person.
- Linking and other Sites
No Endorsement or Responsibility: The Site may include links to other websites, solely as a convenience to users. We do not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, we make no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites.
Third Party Content: We may make third party content and material (“Third Party Content“) available to you through the Site and the Services. Our making available of such Third Party Content does not constitute an endorsement or recommendation, and we are not responsible for any reliance you may place on Third Party Content. We make no warranties or representations as to any Third Party Content and we shall have no liability for it. Any opinions or statements made by third parties are those of such third parties, and do not necessarily state or reflect our views.
Use at Your Own Risk: Your access to and use of linked sites, including information, materials, products and services on linked sites or available through linked sites, is solely at your own risk and governed by the terms of service of the linked site. If there is any conflict between this Agreement and any of the terms or notices set forth on any other website, then the terms of that other website will control your use of information and content you access through that link. Please review the terms of service for each link so that you understand all of the terms that will apply.
Linking to the Site: Please advise us to request permission to link to the Site. We reserve the right to cancel and revoke any permission we may give to link to the Site at any time, for any reason, without any notice, and without any liability to you or any other person.
- No Warranty
Use at Your Own Risk: Access to the Site and the Services and the materials provided on the Site and the Services are provided “as is” and without warranties of any kind either express or implied. BY USING THE SITE AND THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICES IS ENTIRELY AT YOUR OWN RISK.
No Warranty as to Accuracy: We make no representation or warranties regarding the Site or materials on the Site, including, without limitation, that the Site or materials on the Site (including but not limited to Third Party Content) will be accurate, complete, correct, timely or suitable, that any products and Services contained on or made available through the Site are of merchantable quality or fit for a particular purpose, that the Site will be available at all times or that the Site will be free from errors, viruses or other harmful components. We are not responsible for any materials, submissions or other information on the Site or any linked site that you may find offensive, undesirable or objectionable. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, TOUGH DUCK AND ITS OTHERS SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Third Party Content and Services: We specifically disclaim any responsibility or liability for the accuracy, completeness, correctness, timeliness or usefulness of Third Party Content. To the fullest extent permissible pursuant to applicable law, we disclaim all warranties, express or implied, including, but not limited to, warranties and conditions regarding the use of Third Party Content, including all implied warranties or conditions of merchantability, fitness for a particular purpose or non-infringement, whether express or implied, or arising from a course of dealing, usage or trade practice. We hereby disclaim any and all liability for the outcome of any services offered by any third parties.
Insecurity of Internet: You should note that the Internet is an inherently insecure medium, and sending any online communication provides no guarantee of successful delivery. Care should be taken to ensure that the content of your online communication is not sensitive or confidential, since we can take no responsibility for communication which is intercepted, lost, delayed, or miss delivered. Since your computer equipment and the general reliability and performance of the Internet is outside our control, we do not warrant your performance will achieve expected or implied levels. Be aware that information you share on and through the Site and the Services will be available to others. We are not responsible for what others do with such shared materials and other information, once you post them on or through the Site and the Services. We are also not responsible for any unauthorized access to, or use of, the Site and the Services, and/or any and all personal information or financial information stored on or through the Site and the Services; any loss of your data or content through the Site and the Services; or the violation of your rights by any third party.
- Limitation of Liability, Release and Indemnity
THIS SECTION LIMITS OUR LIABILITY TO YOU AND PROVIDES FOR A RELEASE AND AN INDEMNITY, FROM YOU, IN FAVOUR OF US. PLEASE READ IT CAREFULLY.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL YOU BE ENTITLED TO RECOVER ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES FROM TOUGH DUCK OR ITS OTHERS WHICH YOU MAY SUFFER ARISING, CAUSED, ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF, OR INABILITY TO USE, THE SITE, OR YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, TRADEMARK, PUBLICITY, PROPERTY, OR PRIVACY RIGHT, ANY CLAIM THAT ANY CONTENT SUBMITTED BY YOU CAUSES DAMAGE TO A THIRD PARTY, OR THE SERVICES, ANY ACCURACY, INCOMPLETENESS, OR INCORRECTNESS CONTAINED ON THE MATERIALS DISPLAYED, ACCESSED OR USED ON THE SITE, OR YOUR RELIANCE OR ACTING UPON THE MATERIALS ON THE SITE, INCLUDING, ANY LOSS OR DAMAGES IN THE NATURE OF OR RELATING TO LOST BUSINESS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR USE OF THE SITE AND THE SERVICES AND DATA CONTAINED ON OR THROUGH THE SITE OR THE SERVICES AND/OR PROFITS, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT, IN EQUITY, AT LAW OR OTHERWISE AND WHETHER OR NOT TOUGH DUCK HAS OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF TOUGH DUCK AND ITS OTHERS TO YOU FOR DAMAGES SUFFERED BY YOU ARISING OUT OF, RELATED TO OR CAUSED BY THE SITE, THE SERVICES OR THE USE THEREOF, EXCEED A MAXIMUM AMOUNT EQUAL TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES IN THE SIX-MONTHS’ PERIOD WHICH PRECEDES THE OCCURRENCE OF SUCH DAMAGES. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENCE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENCES.
RELEASE: YOU AGREE TO RELEASE, REMISE, ACQUIT AND DISCHARGE TOUGH DUCK AND ITS OTHERS FROM ANY CLAIMS, ACTIONS, DEMANDS, COSTS AND EXPENSES OF ANY KIND WHATSOEVER, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, AT LAW OR IN EQUITY, OR BY STATUTE OR OTHERWISE, HOWSOEVER CAUSED, WITH RESPECT TO YOUR USE OF, OR OUR OPERATION OF, THE SITE AND THE SERVICES, EXCEPT AS MAY BE SET OUT IN THE PRECEDING PARAGRAPH.
INDEMNITY: You agree to indemnify, save and hold harmless Tough Duck and its Others, from and against any claims, actions, demands, judgments, awards, declarations, orders, settlements, damages (including general, special, punitive, aggravated or exemplary damages), liabilities, losses, costs, charges, interest and expenses, or proceedings of any kind whatsoever which may be initiated or presented by any other persons, individuals or other legal entities, and which arise directly or indirectly from your use of or reliance on the Site or the Services or information available on or through the Site or the Services. Without limiting the generality of the foregoing, you hereby agree to pay all costs, fees and expenses, on a solicitor and own client basis, which may be incurred by Tough Duck and its Others, relating to your use of or reliance on the Site or the Services and information available on or through the Site or the Services.
CASL: With respect to CASL, you agree to HOLD HARMLESS AND INDEMNIFY Tough Duck and its Others from any and all liability for any loss, damage, expense or injury, arising from your failure to comply with CASL, including, without limitation, any and all actual or threatened claims, demands, actions, causes of action, liabilities, losses, damages, fines, penalties (including, without limitation, administrative monetary penalties), costs and expenses (including, without limitation, legal fees on a solicitor-and-own client basis, investigation fees and disbursements).
SINCE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITY, SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 13 MAY NOT APPLY TO YOU.
- Conflict of Laws
Application of Manitoba Laws: We are physically located within the Province of Manitoba, Canada. This Agreement will be governed by the laws of the Province of Manitoba and the laws of Canada applicable therein and shall be treated in all respects as a Manitoba contract, without reference to the principles of conflicts of law. In the event of a dispute, you agree to submit to the exclusive jurisdiction of Manitoba’s courts.
Laws Excluded: We expressly exclude the UN Convention on Contracts for the International Sale of Goods, and The International Sale of Goods Act (Manitoba), C.C.S.M. c. S11, as amended, replaced or re-enacted from time to time.
Waiver of Rights: You agree to waive any right you may have to: (a) a trial by jury; and (b) commence or participate in any class action against us related to your use of the Site, the exchange of electronic documents between us or this Agreement and, where, applicable, you also agree to opt out of any class proceedings against us or our licensors.
Agreement in English: The parties hereto have required that this Agreement and all documents relating thereto be drawn up in English. Nous avons demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
- International Matters
Unless otherwise specified, the Site is presented solely for the purpose of promoting products and services available in Canada. We make no representation that the Site, Our Content and all other materials on the Site are appropriate or available for use in any particular location. Those who choose to access the Site, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
- Force Majeure
We will not be liable for failure or delay in our performance of our obligations under this Agreement due to any cause beyond our reasonable control, including, but not limited to: (a) acts of God; or (b) failure or disruptions in third-party-controlled or operated communications facilities; or (c) worms, viruses and other disabling or disruptive software, communications or files.
Suspension of your Use of the Site: If you breach any provision of this Agreement, you may no longer use the Site. We may at any time and for any reason, with or without cause, and in our sole discretion, immediately suspend or terminate (in whole or in part) your permission to use the Site or the Services, all without any notice or liability to you or any other person.
No Refunds or Rights on Termination: We shall not be responsible for refunding or otherwise paying any funds, amounts or credits that we may owe to you if we have suspended or terminated your permission to use the Site or any part thereof. We reserve the right to cease, suspend or interrupt operation of or access to the Site or any part thereof, and shall not be required to provide any notice in respect of such cessation, suspension or interruption of access, nor shall we have any liability for such cessation, suspension or interruption of access.
Any provision of this Agreement that must survive to fulfil its essential purpose (whether expressly stated as such or not) will survive the termination of this Agreement.
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. We may assign this Agreement without restriction. The posting of email addresses on the Site and the Services does not, unless otherwise expressly indicated or as part of the operation of the Services, constitute consent (express or implied) for you to send unsolicited commercial electronic messages, to such email addresses. This Agreement constitutes the entire agreement between Tough Duck and you, pertaining to the subject matter hereof, and supersedes all prior formal and informal agreements, proposals, promises, inducements, representations, conditions, warranties, understandings, negotiations and discussions, whether oral or written, between Tough Duck and you. The section headings used herein are for convenience only and shall not be given any legal import.
- Our Contact Information
If you have any questions about this Agreement, or the Site generally, please contact us at:
85 Adelaide Street
Winnipeg MB R3A 0V9