Merchant's Terms of Use

Last updated - April 22, 2020

This Merchant Terms of Use Agreement (the “Agreement”) is a contract between YOU and The University of Western Ontario as representing both itself and any applicable partners and/or suppliers (collectively hereinafter referred to as “WESTERN”), for your purchase and use of the Product as defined below. Please read this Agreement carefully.

  1. Relationship between this Agreement and the applicable License Agreement

1.1. Definition of Product. In this Agreement, “Product” means the WESTERN owned Fourth R and HRPPE products. Where applicable, the License Agreement (LA) contains additional provisions which complements this Agreement and only overrides the provisions of this Agreement when expressly provided as such. For greater certainty, and by means of example, albeit without limitation, the provisions of Articles 3 and 9 of the LA supersede all conflicting provisions of this Agreement contained in Article 2 below.

  1. Restricted Uses

(a) Any attempt to modify, sell, license, gift, transfer, destroy, reverse engineer, copy, auction, or alter the Product in any manner is strictly prohibited by this Agreement. (b) All inventions, discoveries, improvements, copyright, know-how or other intellectual property, whether or not patentable or copyrightable, created by WESTERN prior to, after the termination of, or during the course of this Agreement pertaining to the Product is and will remain the sole and absolute property of WESTERN. No right, title or interest in or to any trademark, service mark, logo, or trade name of WESTERN is granted to YOU under this Agreement. YOU agree that YOU will not, either during or after the termination of this Agreement, contest or challenge the title to or the intellectual property rights of WESTERN in the PRODUCT or any portion thereof. Without limiting the foregoing YOU shall not, and shall not authorize any third party to:

  • make copies of the Product for any purpose other than as permitted in the LA;
  • challenge the integrity of the Product or any rights of ownership or in the copyright therefor;
  • modify, create derivative works, or otherwise alter the Product or any part thereof for any purpose other than as permitted in the LA;
  • distribute, sell, lease, transfer, assign, trade, rent or publish the Product or any part thereof and/or copies thereof, to others;
  • use the Product or any part thereof for any purpose other than as stated in the LA;
  • use the Product to process any data other than Your own;
  • allow any other person or entity to use the Product; or
  • use, without its express permission, the name of WESTERN in advertising publicity, or otherwise.

(c) The contents of the Product must not be copied, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, without the express prior written consent of WESTERN.

  1. Representations

YOU represent and warrant that YOU possess the legal authority to enter into this Agreement and the associated LA on behalf of yourself and any person YOU purport to represent, and that YOU will be financially responsible for YOUR purchase and use of the Product. YOU agree to be responsible for any fees, costs, charges and taxes arising out of your use of the Product. For the purposes of this Agreement, “person” includes natural persons and any type of incorporated or incorporated entity.

  1. Disclaimer of Warranties

YOUR USE OF THE PRODUCT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT AND THE ASSOCIATED LA, THE PRODUCT IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WESTERN, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, SUPPLIERS, DISTRIBUTORS AND/OR SUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE PRODUCT IS FIT FOR A PARTICULAR PURPOSE, PERFORMANCE, DURABILITY, AVAILABILITY, TIMELINESS, COMPLETENESS, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE PRODUCT. WESTERN AND ITS SUPPLIERS, WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE USE OF THE PRODUCT BY YOU OR ANY OTHER PERSON. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE PRODUCT, WHICHEVER IS SOONER. SOME PROVINCES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM PROVINCE TO PROVINCE OR COUNTRY TO COUNTRY.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF WESTERN, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE LESSOR OF (1) THE AMOUNT YOU PAID FOR THE PRODUCT/S DURING THE TWELVE MONTHS PRIOR TO SUCH CLAIM OR (2) $100.00 CAD. SUBJECT TO APPLICABLE LAW, WESTERN, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT. THE ABOVE LIMITATIONS APPLY EVEN IF WESTERN AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT AND THE ASSOCIATED LA SETS FORTH THE ENTIRE LIABILITY OF WESTERN, ITS AFFILIATES, SUPPLIERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE PRODUCT AND ITS USE.

  1. Personal Information Privacy

WESTERN collects, uses, discloses, and retains personal user information in accordance with its Privacy Policy, the terms of which are incorporated into and form part of this Agreement.

  1. Indemnity

You agree to indemnify and hold WESTERN and its suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Product or breach of this Agreement and the LA (collectively referred to as "Claims"). WESTERN and its suppliers reserve the right, in its/their sole discretion and expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by WESTERN and its suppliers in the defense of any Claims.

  1. Governing Law and Jurisdiction

This Agreement, the associated LA, your use of the Product, and all related matters are governed solely by the laws of the Province of Ontario, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Any dispute between WESTERN and/or its suppliers and YOU or any other person arising from, connected with or relating to the Product, this Agreement, the LA or any related matters must be resolved before the Courts of the Province of Ontario, and YOU hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those Courts in respect of any such dispute or matter. USE OF THE PRODUCT IS PROHIBITED IN ANY JURISDICTION WHICH DOES NOT GIVE EFFECT TO THE TERMS OF THIS AGREEMENT.

  1. General Provisions

9.1. Entire Agreement. With the exception of the associated LA, this Agreement contains all the terms between the parties relating to its subject matter. It replaces any and all previous discussions, understandings, and agreements. 9.2. Amendment. WESTERN may, in its sole discretion, change, supplement or amend this Agreement as it relates to your future use of the Product from time to time, for any reason, and without any prior notice or liability to YOU or any other person. YOU may not change, supplement, or amend this Agreement in any manner. 9.3. Assignment. YOU may not assign this Agreement or the LA nor any of your rights under same. WESTERN may assign this Agreement (and the LA) or any of our rights at any time without notice or the need for or your consent. 9.4. Severability. If any part of this Agreement (or the LA) is declared unenforceable or invalid, the remainder will continue to be valid and enforceable. 9.5. Waiver. WESTERN’S failure or neglect to enforce any of the rights under this Agreement or any LA will not be deemed to be a waiver of WESTERN’S rights.

Terms and Conditions Agreement

April 22, 2020

Acceptance of Terms

The text in this Shopify Terms and Conditions Agreement document form an agreement (the “Agreement”) between The University of Western Ontario (“Western”) and you (yourself personally and/or anyone whom you legally represent, hereinafter “You”), as a user of its website and/or services (the “Services”), and Western asks that You read them carefully. By accessing the Services, You accept and agree to be bound, without qualification, by this Agreement.

Changes to Terms

Western may, in its sole discretion, amend or modify this Agreement as it relates to Your future use of the Services from time to time, without any prior notice or liability to You or any other person, by posting the revised Agreement on this website. When You use the Services, You should check the date of this Agreement and review any changes since the last version. You may not change or supplement this Agreement in any manner. By using the Services after this Agreement has been revised, You signify Your acceptance and consent, without limitation or qualification, to be bound by the revised Agreement. If You do not agree with each provision of the revised Agreement, You may not use the Services.

Use of Services

In connection with using or accessing the Services You will not:

  • breach or circumvent any laws, third-party rights or Western’s systems or policies;
  • use the Services if You are not able to form legally binding contracts (for example if You are under 18 years of age);
  • distribute viruses or any other technologies that may harm Western, or the interests or property of other individuals, such as, but not limited to, any Western suppliers referenced generally or by name in any supplemental contractual documentation between You and Western;
  • interfere with the working of the Services;
  • export or re-export any Western application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
  • reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to Western, or that comes from the Services and belongs to another third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of Western and/or any other party holding the right to license such use;
  • circumvent any technical measures Western uses to provide the Services.

If Western believes You are abusing the Services in any way, Western may, in its sole discretion and without limiting other remedies, limit, suspend, or terminate Your access to the Services and take technical and/or legal steps to prevent You from using the Services. Western reserves the right to refuse or terminate all or part of our Services to anyone for any reason at its discretion.

Additional Customer Obligations

When You are purchasing Content (as defined below), You agree to supply to Western information necessary to complete the transaction, including Your name and email address. You further agree to accept the Merchant Terms of Use Agreement, this Agreement, the License Agreement and Western’s privacy policy before completing the transaction. You will then be taken to the merchant’s credit card processor where You will be required to enter Your credit card information to complete the purchase. Once Your purchase has been approved, You will be sent an email to Your email address receipting the transaction.

Western’s Paywall Service

The Services supply a paywall to a merchant so that You can purchase downloadable products, online products and/or tangible products from the merchant (the “Content”).

When purchasing downloadable products, the email receipting the transaction sent to You will contain a hyperlink to download the downloadable product. Once downloaded, Your use of the downloadable product will be subject to the Merchant Terms of Use Agreement and the License Agreement, as applicable.

When purchasing online products, the email receipting the transaction sent to You will contain a username, password and hyperlink to the merchant’s website login page. When accessing the online product, Your use of the online product will be subject to the Merchant Terms of Use Agreement and any applicable License Agreement with the merchant, as applicable.

When purchasing a tangible product, the email receipting the transaction sent to You and the merchant will be instructed to deliver the tangible product to You. Once You have received the tangible product, Your use of the product will be subject to any applicable Merchant Terms of Use Agreement, License Agreement and/or any other contractual documentation, as applicable.

The email receipting the transaction sent to You may contain a time limit for You to download and/or use the online product. No refund will be provided to You for Your failure to download or use the online product before the expiry of the time limit.

Western’s trademarks

Western’s trademarks are valuable assets of Western. All names, marks, brands, titles, slogans, logos, icons, graphics, trade names, designs and other designations within the Services are registered and unregistered trademarks of Western and possibly other parties, such as but not necessarily limited to, Western’s suppliers, clients, affiliates and licensors, (collectively “Trademarks”) in Canada and other countries.

Nothing contained on the Services should be construed as granting, by implication or otherwise, any license or right to use any Trademarks displayed on the Services without the written permission of Western or such party that may own such Trademarks. Misuse of any of the Trademarks, or any other content owned by Western and displayed on the Services is strictly prohibited.

Western’s Copyright

The software used to operate the Services and all content and other information in text, graphical, video and audio forms, images, icons, software, designs, applications, data, and other elements available via the Services, are the property of Western and others (including Western’s suppliers and licensors), and are protected by Canadian and international copyright, trademark and other laws. As between You and Western, be it known that Western owns and retains all right, title and interest in, to and associated with the Services and all software and technology used to operate the Services. You will not acquire any right, title or interest in or to any software or technology used to operate the Services. All rights not expressly granted under this Agreement are reserved to Western (and/or any of its applicable suppliers and licensors, as the case may be).

Disclaimer & Limitation of Liability

Western tries to keep its Services safe, secure, and functioning properly, but cannot guarantee the continuous operation of or access to our Services. Such functionality is subject to delays beyond Western’s control.

You agree that You are making use of Western’s Services at Your own risk, and that they are being provided to You on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, Western (as well as any applicable Western suppliers and licensors) excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

In addition, to the extent permitted by applicable law, Western (including its subsidiaries, and affiliates, and its and their officers, directors, students and employees) are not liable, and you agree not to hold Western, nor any of its suppliers and licensors, responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:

  • Your use of or Your inability to use the Services;
  • delays or disruptions in the Services;
  • viruses or other malicious software obtained by accessing or linking to the Services;
  • glitches, bugs, errors, or inaccuracies of any kind in the Services;
  • damage to Your hardware device from Your use of the Services;
  • the content, actions, or inactions of third parties;
  • a suspension or other action taken with respect to Your account;
  • Your need to modify practices, content, or behavior or Your loss of or inability to do business, as a result of changes to this Agreement or an applicable Merchant Terms of Use Agreement or License Agreement or any other pertinent contract.

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to You.

Regardless of the previous paragraphs, if Western (or any of its suppliers or licensors) is found to be liable, Western’s liability (and any liability of or any of Western’s suppliers or licensors) to you or to any third party is limited to $100.00 CDN.

You acknowledge and agree that this Agreement represents a fair allocation of risk and liability. Advice and information provided by Western, whether oral or written, will not create any representation, warranty, condition or guarantee or vary or amend this agreement, including the above disclaimers, liability exclusions, liability limitations, and indemnity provisions, and You may not rely upon any such advice or information.

Indemnity

You will indemnify and hold Western (and its affiliates, suppliers, licensors and subsidiaries, and its and their respective officers, directors, employees, students) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of Your breach of this Agreement, Your improper use of the Services or Your breach of any law or the rights of a third party.

Governing Law & Legal Disputes

By accessing the Services, You agree that the laws of Ontario (and those of Canada applicable therein) will govern the Agreement and apply to any issue that might arise regarding this site, and that such dispute will be settled or adjudicated exclusively in the Province of Ontario. Access to the Services from locations where the Content is illegal is prohibited. It is solely Your responsibility to determine whether Your use of the Services is lawful, and You must comply with all laws applicable in Your jurisdiction.

All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from Your use of the Services, shall be finally resolved by arbitration pursuant to the Arbitration Act of Ontario as may be amended from time to time. The place of arbitration shall be London, Ontario, Canada. The language of the arbitration shall be English. The number of arbitrators shall be one.

Neither Western nor You shall assert any claim as a class, collective or representative action. This subparagraph shall be enforceable when the applicable law permits reasonable class action waivers and shall have no effect when the applicable law prohibits class action waivers as a matter of law. In any case, the class action waiver provision is severable in the event any court finds it unenforceable or inapplicable in a particular case.

Termination

This Agreement will continue indefinitely until terminated by You or by Western in accordance with this Agreement. Western may terminate this Agreement should You breach any of its provisions, without any prior notice or liability to you. Western may terminate this Agreement should it wish to discontinue providing the service. You can terminate Agreement by providing a written notice to terminate Your account to thefourthr@uwo.ca and by no longer using the Services. The following Sections survive any termination of this Agreement: Disclaimer of Warranties; Limitation of Liability; Indemnity, and Governing Law and Legal Disputes. Furthermore, all prohibitions on the use of Trademarks, intellectual property (including copyright) shall survive termination of this Agreement.

Privacy

Western collects, uses, discloses, and retains personal user information in accordance with its Privacy Policy, the terms of which are incorporated into and form part of this Agreement.

General

Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.

Headings are for reference purposes only and do not limit the scope or extent of such Section. Western’s failure to act with respect to a breach by You or others does not waive its right to act with respect to subsequent or similar breaches. Western does not guarantee it will take action against all breaches of this Agreement.

If You use the Services on behalf of a business entity, You represent that You are authorized to act on behalf of such business and bind the business to this Agreement. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

The Agreement, along with any and all referenced and incorporated other documentation, including the Western Privacy Policy, and any applicable Merchant Terms of Use Agreement and any License Agreement, as well as any other contractual documentation (electronic or otherwise) sets forth the entire understanding and contract between You and Western and supersedes all prior understandings and agreements of the parties as such pertain to the Services.