1.1 American Bath Group ("ABG") and its subsidiaries (AKER by MAAX, Aquarius, Aquatic, Bootz, Clarion, Comfort Designs, Hamilton, MAAX Bath, MAAX Spas and Swan) (further known as “ABG” or “our”) maintains the website HamiltonBathware.com and all related websites (the “Websites”) for the entertainment, information, education, and communication of users of the Websites (“you” or “your”).
1.2 Your access and use of the Websites and the messages, information, data, text, graphics, images, photographs, illustrations, software or other content available through the Websites (collectively, the “Content”) is subject to these terms and conditions (“Terms and Conditions”) and all applicable laws. By accessing and browsing the Websites, you accept, without limitation or qualification, the Terms and Conditions. If you do not agree to abide by the Terms and Conditions, you shall not use the Websites or access the Content.
1.3 If you have questions about any of these Terms and Conditions, please send a request for clarification to ABG using the provided Support form.
2. DISCLAIMERS AND LIMITATION OF LIABILITY
2.1 While ABG strives to include up-to-date and accurate information on the Websites, the Websites and the Content are provided “AS IS” and as available basis, and any access to, use of, modification to or reliance on the Websites and the Content shall be at your sole risk. ABG and its partners, licensors, agents, content providers, service providers, employees, officers, directors or representatives (“ABG Representatives”) in no way warrant the accuracy of such information, nor do ABG or ABG Representatives assume any liability or responsibility for any errors or omissions contained on the Websites, as ABG and ABG Representatives cannot and do not guarantee and do not make any, and expressly disclaim, all representations, warranties, covenants and conditions, express or implied, by operation of law or otherwise, with respect to the Websites or Content, including: (i) any implied warranties and conditions of merchantability, merchantable quality, or fitness for any particular purpose, or non-infringement, or any implied representations or warranties arising out of course of performance, course of dealing or usage of trade; (ii) that the Websites or Content will meet your (or your organization or company’s) requirements or will be compatible with your (or your organization or company’s) computer or related equipment, photograph equipment or software; (iii) that the Websites or Content is accurate, valid, reliable, authentic, current, or complete; (iv) that the Websites will continue to operate, operate without interruptions or be error-free; or (v) that your browsing of materials displayed on the Websites will not infringe or violate rights of third parties not owned by ABG.
2.2 In addition, ABG and ABG Representatives make no representation or warranty that the Websites or Content are appropriate or available for use at any location. Accessing the Websites or Content from locations where their contents are illegal is prohibited. Your use and access of the Websites or Content is subject to local applicable law, with which you are solely responsible for complying.
2.3 You are solely liable and responsible for any and all claims and demands made by any other person arising out of, in connection with, or relating to your use of the Websites, User Modifications (as defined below at Section 6.1) or Content; your breach of the Terms and Conditions; your violation or infringement of the rights of others; or your violation of any applicable civil or criminal law. ABG and ABG Representatives disclaim any and all responsibility and liability regarding all such matters.
2.4 You agree that you are solely responsible for actions and communications undertaken or transmitted in the course of your usage of the Websites, User Modifications and Content, and that you will comply with all laws that apply or may apply to your use of or activities on the Websites or in respect of the Content or the User Modifications. At its discretion, ABG may (but is not obligated to) investigate occurrences which may involve violations of such laws, and may involve, and co-operate with, law enforcement authorities in prosecuting users who are involved in such violations. ABG reserves the right at all times to disclose any information (including your personal information) regarding your usage of the Websites or Content (including any perceived violations of applicable law) as may be permitted or required by applicable law, including as necessary to satisfy any request authorized by applicable law.
2.5 Your browsing of the Websites is done at your own risk. Neither ABG nor any other party (including ABG Representatives) involved in creating, producing, or delivering the Websites shall be liable for any loss or damage whatsoever (including incidental, consequential, indirect, exemplary, special, or punitive damages) arising out of, or in connection to, your access to, or use of, or any inconvenience, delay of access or use to, the Website, the Content, the User Modifications, any content of any linked website, or failure of such sites (including damages suffered as a result of omissions or inaccuracies in such websites or content, or the transmission of confidential or sensitive information to or from such sites), even if ABG or ABG Representatives have been advised of the possibility of such damages or loss or if such damage or loss was foreseeable. To the extent that a court or applicable law renders the disclaimer and limitations set forth in this section inapplicable, your recovery of damages from ABG shall be limited to the amount of money you paid to ABG for ABG goods and services during the twelve (12) months preceding the events that caused your damages, or one hundred US dollars (US$100), whichever is greater.
2.6 In addition, ABG cannot guarantee the absence of viruses or other malicious or destructive code on the Websites, User Modifications, or Content. ABG and ABG Representatives do not assume any responsibility, and shall not be liable for any damages to, or viruses or other malicious or destructive code that may infect, your (or your organization’s or company’s) computer equipment or other property on account of your access to, use of, downloading of, or browsing in the Websites, the Content or the User Modifications. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for the prevention of downloading or execution of such contaminating or destructive code, and for the accuracy of data input and output, and for maintaining a means external to the Websites for the reconstruction of any lost data.
2.7 To the fullest extent authorized by law, ABG does not assume any liability regarding the authorized third-party installers of ABG’s products. ABG takes reasonable steps to train such authorized third-party installers, but the actions, omissions, faults and negligence are beyond ABG’s control and are the respective authorized third-party installer’s sole and exclusive liability. ABG does not endorse, guarantee or take responsibility for the work of any of the authorized third-party service providers or their agents. Any engagement by you of an authorized third-party installer for work will be solely between you and such third party, and in no way is ABG a party to or responsible under such engagement for any work performed. Each authorized third-party installer’s warranties may vary. ABG is not responsible for warranties offered by third-party installers, but only its own warranty as the manufacturer of its products
2.8 The listing of authorized third-party installers is provided for your convenience only, and inclusion of the third-party installer in this list does not constitute a recommendation by ABG. Each third-party installer is an independent business concern, and you should conduct any research or investigation you believe appropriate before contracting with one or more of such third-party installers.
2.9 All prices shown are the manufacturer’s suggested list prices in USD ($) and are subject to a trade discount as determined by ABG. All prices published are subject to change without notice and are exclusive of applicable taxes.
3. CHANGES TO THE WEBSITES
3.1 ABG may at any time revise these Terms and Conditions. You are bound by any such revisions and should therefore periodically visit this page to review the then current Terms and Conditions. Please check these Terms and Conditions each time you visit the Websites as the then-current version of these Terms and Conditions shall apply to that visit. If any term, condition or any change to the Terms and Conditions is not acceptable to you, you must discontinue your use of the Websites immediately. Your continued use of the Websites after any such changes are posted will constitute acceptance of those changes. The Terms and Conditions apply exclusively to your use of the Websites and do not alter the terms or conditions of any other agreement you may have with ABG. To the extent that a claim or cause of action arises in your favor against ABG while a particular version of these Terms and Conditions are in force, later revisions to the Terms and Conditions shall not abrogate, nullify, or otherwise affect such claim or cause of action, and the Terms and Conditions in effect at the time such claim or causes of action arises shall apply.
3.2 ABG may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of the Websites. ABG reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Websites at any time without notice, but confirms that it has no duty to do so. ABG and its service providers will also have the right to terminate your use of the Websites as set out below under the heading “Termination of Use”.
4.2 Further to the above, ABG does not accept or consider unsolicited ideas, suggestions or other materials in any format (“Unsolicited Ideas”), including Unsolicited Ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Unless otherwise specified in writing by ABG, please do not send any Unsolicited Ideas, including original creative artwork, suggestions or other works. The purpose for this is to avoid potential misunderstandings or disputes when ABG products or marketing strategies might seem similar to ideas submitted to ABG. If, despite our request that you not send us your Unsolicited Ideas, you still send any such Unsolicited Ideas, then regardless of the content of your communications to ABG, you agree that:
You transfer, assign and convey to ABG all worldwide right, title and interest to the Unsolicited Ideas free and clear of all encumbrances, including in respect of all intellectual property rights without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of ABG or its successors or assigns; and
you represent and warrant that you shall waive all moral rights (including the right to be associated with the Unsolicited Ideas) in the Unsolicited Ideas upon their submission to any Websites or to ABG.
4.3 All information that you provide through the Websites or in connection with any material submitted, must be true, accurate, current and complete, and where applicable, must be updated by you promptly upon the occurrence of any change in such information.
4.4 ABG and its service providers will rely on the information you provide. You will be responsible for any and all loss, damage, or additional costs that you, ABG or its service providers or others may incur as a result of your submission of any false, incorrect or incomplete information or your failure to update any information that you submit via the Websites.
5. PERMITTED USES
5.1 You are granted a non-exclusive, non-transferable, non-sub-licensable, revocable, limited license to copy, download, display on his/her computer, print, and use the Content only for informational purposes and solely for: (a) your own personal use; or (b) your organization’s or company’s internal use. Except as provided herein, no other use is permitted.
5.3 All rights not expressly granted by the Terms and Conditions are reserved to ABG.
6. RESTRICTED USES
6.1 You shall not modify the Content from the form as presented on the Websites without acknowledging the source of the Content so modified (such permitted modifications being the “User Modifications”). Any User Modifications shall be made solely to the extent necessary to adapt the Content to your own personal use your organization’s or company’s internal use subject to Section 5.1 above. Any User Modification shall not modify, edit or delete any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Content.
6.2 You may not:
- include any Content in or with any product or service that you or your organization or company creates or distributes unless ABG otherwise agrees in writing;
- copy any Content onto your own or any other website unless ABG otherwise agrees in writing;
- use the Websites in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse, the Websites’ system resources, accounts, servers, networks, affiliated or linked sites, connected to or accessible through the Websites (including uploading, posting or otherwise transmitting on the Websites computer viruses, Trojan horses, worms or other files or computer programs which are potentially harmful, disruptive or destructive or that may impose an unreasonable or disproportionately large load on the Websites’ infrastructure; or using any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from the Websites or the Content in whole or in part);
- use the Websites, the Content or User Modifications in any manner that infringes upon the legal rights of any other person (including privacy and personality rights, copyright, moral rights, and other intellectual property rights), that is unlawful, that violates any right of ABG, its partners, licensors, content providers, service providers or contractors, that is prohibited in the Terms and Conditions (including by accessing the Websites from any location where such access may be illegal or prohibited), that is unethical, indecent, offensive, defamatory, derogatory, fraudulent, deceptive, harmful, abusive, threatening, vulgar, profane, pornographic, obscene, sexually explicit, sexist, racist, hateful, offensive, harassing, invasive of the privacy rights of others (this includes the posting of any materials that depict, encourage, indicate, advocate or tend to incite any such conduct), that is otherwise objectionable or which does not respect the legal rights and interests of others;
- use the Websites, the Content or User Modifications in any data matching or data mining, including the collection or use of information about other users (including their e-mail addresses) without their consent;
- post or submit any materials to the Websites which would violate any of the restrictions set out in the Terms and Conditions;
- unless ABG otherwise agrees in writing, use the Websites for commercial purposes or activities, except for entering into commercial transactions with ABG, including: (i) selling or offering to sell any goods or services; (ii) soliciting for advertisers or sponsors; (iii) conducting contests, gaming or gambling or offering prizes, awards or any other incentives to any person; (iv) displaying advertising or sponsorship banners, including those generated by banner or link exchange services; (v) soliciting for donations; or (vi) use of unauthorized or unsolicited junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
- use the Websites in any manner that may: (i) harm, threaten, harass, abuse or intimidate any other person in any way or involve materials that depict, promote, encourage, indicate, advocate or tend to incite the commission of a crime or other unlawful activities, violence, hatred, cruelty or discrimination against any individuals or groups, for any reason, or any act of cruelty to animals; (ii) dilute or depreciate the name and reputation of ABG, any Marks (as defined herein), partners, licensors, content providers, service providers or contractors thereof, as applicable; (iii) interfere with any other persons’ use and enjoyment of the Websites or of the Internet generally; (iv) result in the circumvention or breach of any user authentication, password, security or control measures regarding the Websites or any other internet resource or computer system; (v) conceal or misrepresent the author or origin of any messages or communication, or that impersonate any person, or that falsely state or otherwise misrepresent an affiliation with any other person, including any ABG Representative; or (vi) disclose images of any person or private information about any person (such as names, telephone numbers, e-mail addresses, postal addresses, social insurance or other security number) without that person’s permission.
6.3 Except as provided herein, none of the Content may be copied, resold, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of ABG or the intellectual property right owner.
6.4 You may not, without the written permission of ABG, “mirror” any Content on any other server.
7. PROPRIETARY INFORMATION
7.1 You agree that all Content is owned or controlled by ABG and subject to applicable intellectual property laws. You shall acknowledge the source of any Content used by you in accordance with the Terms and Conditions.
7.2 Copyright and permission details are available on request or as indicated on the Websites. Any unauthorized copying, redistribution, reproduction or modification of the Websites or the Content by any person may be a violation of trade-mark and/or copyright laws and could subject such person to legal action. You agree to comply with all copyright laws worldwide in your use of the Websites and the Content and to prevent any unauthorized copying of the Content.
7.3 Certain names, words, titles, phrases, logos, icons, graphics or designs in the Websites constitute trade-marks, trade-names, trade dress and/or associated products and services of ABG, its partners, any licensor, content provider, service provider or contractor of ABG or any other third party (collectively the “Marks”) and may be protected in the US, Canada or elsewhere; their display on the Websites does not convey or create any license or other rights in the Marks. Any use of any of the Marks, in whole or in part, that are accessible via the Websites without prior written authorization of ABG or such third party is strictly prohibited.
7.4 ABG respects the intellectual property rights of others. If you believe that your work has been copied and appears on the Websites in a way that constitutes infringement of your intellectual property rights, please notify us by using the provided Support Form. ABG reserves the right to remove content that infringes upon the intellectual property rights of others and to terminate use of the Websites as set out below under the heading “Termination of Use”.
7.5 DMCA Policy. ABG is an online service provider as defined in the Digital Millennium Copyright Act (“DMCA”). We take copyright violation very seriously and will vigorously protect the rights of legal copyright owners. If you are the copyright owner of content which appears on the Websites and you did not authorize the use of the content you must notify ABG in writing in order for us to identify the allegedly infringing content and take action. You may make a written notice via email, facsimile or postal mail to the DMCA AGENT as listed below. Your written notice must include the following:
(1) a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner which expressly claims an exclusive right that is allegedly being infringed;
(2) specific identification of the copyrighted work which you are alleging to have been infringed (if you are alleging infringement of multiple copyrighted works with a single notification you must submit a representative list which specifically identifies each of the works that you allege are being infringed);
(3) a specific identification of the location and description of the material that is claimed to be infringing or to be the subject of infringing activity with enough detailed information to permit ABG to locate the material, including the specific URL or URLs of the web pages where the allegedly infringing material is located;
(4) information reasonably sufficient to allow ABG to contact the complaining party which may include a name, address, telephone number and electronic mail address at which the complaining party may be contacted;
(5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(6) a statement that the information in the notification is accurate, and under penalty of perjury that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please also note that under applicable law, 17 U.S.C. 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
8.1 You will indemnify and hold ABG and ABG Representatives (the “Indemnified Parties”) harmless from and against any claims brought by third parties arising out of your use of the information accessed from the Websites, and any breach of the Terms and Conditions by you, including any use of the Content or User Modifications other than as expressly authorized in the Terms and Conditions. You agree that the Indemnified Parties will have no liability in connection with any such breach or unauthorized use or modification, and agrees to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and lawyers’ fees of the Indemnified Parties in connection therewith.
9. LINKED WEBSITES AND FRAMING
9.1 Certain links on the Websites may take you to other websites. ABG provides these links only as a convenience. ABG is not responsible for the content of any such linked pages. ABG makes no representation or warranty regarding, and does not endorse or approve, any linked websites, the information appearing thereon or any of the products or services described. Should you leave the Websites via a link contained herein, and view content that is not provided by or on behalf of ABG, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements.
9.2 You are granted a limited, non-exclusive right to create a hyperlink to the Websites. You agree that if you link other websites to the Websites, such other websites shall not (a) create frames around any part of the Websites or use other techniques that alter the visual presentation of the Websites; (b) imply that ABG is endorsing you or any other person (including your organization or company), or you or such other person’s products or services; (c) without the prior written consent of ABG, imply an affiliation between you or any other person, or you or such other person’s products or services and ABG; (d) misrepresent the relationship of you or any other person with ABG or present false, misleading, derogatory, defamatory or otherwise damaging information or impressions about ABG or any of its products or services; or (e) contain materials that may be interpreted as distasteful, harmful, offensive, or inaccurate, or are otherwise in breach of the Terms and Conditions (including Section 6 (Restricted Uses)).
11.1 The Websites in Canada are hosted on servers residing in the Province of Quebec, Canada and the Websites are controlled by ABG from the Province of Quebec, Canada. By accessing the Websites in Canada, you agree that this agreement is formed in the Province of Quebec, Canada, and that all matters relating hereto shall be governed by the laws of the Province of Quebec and the laws of Canada, without regard to the conflicts of laws principals thereof. The Websites in the US are hosted on servers located in the US. By accessing the websites in the US, you agree that this agreement is formed in the US and subject to US federal and state law.
11.2 Any dispute between ABG and you or any other person arising from, in connection with or relating to the Websites, Content, Terms and Conditions, any transaction through the Websites, or any related matter must be resolved, if in Canada, before the Courts of the Province of Quebec, Canada sitting in the City of Montreal, or if in the US, in the federal or state courts sitting in [CITY] (the “Courts”), and you hereby irrevocably submit and attorn to the exclusive jurisdiction of those Courts in respect of any such dispute.
12. TERMINATION OF USE
12.1 If you breach any provision of the Terms and Conditions, then you may no longer use the Websites or the applicable Content that is made available through the Websites. ABG, in its discretion, shall determine whether the Terms and Conditions have been violated.
12.2 ABG or its service providers may at any time and for any reason, with or without cause, and in their sole discretion, immediately: (i) suspend or terminate (in whole or in part) your authorization to use the Websites; (ii) suspend, terminate, remove or permanently delete and destroy, as applicable, any of your: (A) URL, IP address or domain name; or (B) any material that you or others may have posted or submitted to any or all Websites; (iii) restrict access to the materials posted or submitted to the Websites; and (iv) bar you from any future use of the Websites; all without any prior notice to you or any other person, and you agree to comply with all such measures.
13.1 If for any reason a court of competent jurisdiction finds any provision of the Terms and Conditions or portion thereof to be unlawful, void, or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Terms and Conditions, and the remainder of the Terms and Conditions shall continue in full force and effect. ABG’s failure to insist upon or enforce strict performance of any provision of the Terms and Conditions or any right shall not be construed as a waiver of any such provision or right. You and ABG are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by the Terms and Conditions or use of the Websites or Content by you.
13.3 The provisions of the Terms and Conditions will enure to the benefit of and be binding upon ABG and any service providers, as applicable, and their respective successors and assigns, and you and your heirs, executors, administrators, successors and personal representatives. You may not assign the Terms and Conditions or your rights and obligations under the Terms and Conditions without the express written consent of ABG, which may be withheld in ABG’s sole discretion. ABG and its service providers may assign these terms and conditions and their respective rights and obligations under these terms and conditions without your consent.