| |
1. THE SITE. For purposes of this Agreement, “Site” means the
“Freeman Online” web site, with its home page currently located at
http://www.myfreemanonline.com/fol/common/home.jsp and the Content, together with and
including, all of the hardware, software, code, interfaces and connectivity used to
operate and maintain the Site. For purpose of this Agreement, “Content” means any and
all of the text, data, illustrations, images, graphics, photographs, audio, video and
audio-video clips and all of the other information and materials made available through
the Site.
2. PURCHASE TERMS. The Purchase Terms, as may be amended from time
to time by Freeman, govern all orders submitted to Freeman for any goods or services,
including all orders placed through the Site. To review the current Purchase Terms,
click here.
In the event of a conflict between the terms and conditions set forth in the
Purchase Terms and the terms and conditions set forth in this Agreement, the terms and
conditions set forth in the Purchase Terms shall take precedence over any conflicting
terms and conditions set forth in this Agreement.
3. OWNERSHIP.
(a) As between you and Freeman, Freeman owns all
right, title and interest in and to the Site, including all copyrights, patent rights,
trademark rights, trade secret rights, rights in know-how, and all other intellectual
property rights therein or appurtenant thereto. No right, title or interest in or to the
Site is transferred to you under this Agreement, nor by virtue of your use of the Site.
(b) The entire Content of the Site is copyrighted under United States law and if
applicable, Canadian law and international copyright laws and treaty provisions. The copyrights in the
Content of the Site are owned by Freeman or by third parties who have licensed their
materials to Freeman. The Content of the Site is copyrighted as a collective work under
United States copyright law and, if applicable, Canadian law and international copyright laws and treaties,
and Freeman owns the copyright in the selection, coordination, arrangement and enhancement
of the Content.
(c) All of the trademarks, service marks and logos (collectively, “trademarks”)
displayed on the Site belong exclusively to Freeman or their respective owners and may
not be reproduced, displayed or used without the written permission of the trademark owner.
Nothing contained on the Site should be construed as granting, by implication, estoppel, or
otherwise, any license or right to use any of the trademarks. You are strictly prohibited from
misusing any of the trademarks or other materials on the Site.
4. LIMITED USE. Subject to the terms and conditions of this Agreement,
Freeman grants you a limited, revocable, non-transferable license to use the Site for your
internal business purposes in accordance with the terms and conditions of this Agreement.
You may only use the Site in its intended manner to make legitimate purchases of goods and
services from Freeman and shall not use the Site for any other purposes, including making
any speculative, false or fraudulent orders or any orders in anticipation of third party
demand. Except for using selected portions of the Site in their intended manner to make
legitimate purchases of goods and services from Freeman, you shall not use, copy,
reproduce, publish, display publicly, perform publicly, distribute, transmit, transfer,
modify or create derivative works based on the Site, in whole or in part, without first
obtaining written permission from Freeman.
5. ADDITIONAL RESTRICTIONS.
(a) You shall not: (i) delete or
modify any copyright or trademark notices or language of attribution; (ii) publish,
perform, display or post any part of the Site on any other Internet site or any networked
computer environment; or (iii) publish, perform publicly, display publicly or broadcast
any part of the Site in or on any other media.
(b) You shall not use the Site for any purpose that is unlawful or prohibited by this
Agreement. You shall not use the Site in any manner that could damage, disable, overburden
or impair any Freeman server or any network connected to any Freeman server, or interfere with
others’ use and enjoyment of any part of the Site. You shall not attempt to gain unauthorized
access to the Site or other accounts, computer systems or networks, including through hacking,
Password mining or any other means. You shall not obtain or attempt to obtain any materials or
information through any means not intentionally made available through the Site.
(c) In no event shall you sell, resell or exploit for any commercial purposes, all or any
part of the Site, or access to or use of the Site. You shall not use any “robot,” “spider” or
other automatic device, or a program, algorithm or methodology having similar processes or
functionality, or any manual process, to monitor or copy any part of the Site. Freeman does not
permit or authorize use of or access to the Site to collect, compile, harvest or obtain any
information about others, including others’ e-mail addresses. You shall not alter the Site or use
any device, software or routine to interfere or attempt to interfere with the proper working of the
Site.
(d) You shall not use the Site to post or transmit any unlawful, threatening, libelous, defamatory,
fraudulent, obscene, indecent, inflammatory, pornographic or profane material or any material that
could constitute or encourage conduct that would be considered a criminal offense, give rise to civil
liability, or otherwise violate any law. You shall not use the Site to post or transmit any
advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes,
or any other unsolicited commercial communication or message (commercial or otherwise), or engage in
spamming or flooding. In addition, you shall not post or transmit any material or information which
(i) infringes the rights of others or violates their privacy or publicity rights, (ii) is protected by
copyright, trademark or other proprietary right, unless you have the express written permission of the
owner of such right, (iii) contains a virus, trojan horse, worm, bug or other harmful item or computer
code, or (iv) is used to unlawfully collude against another person in restraint of trade or competition.
You are responsible for your compliance with all applicable laws, regulations and policies of all
relevant jurisdictions.
6. USERNAME AND PASSWORD. In order to obtain access to the Site, you must have a
Username and Password. You are not permitted to share your Username and Password and are responsible for
maintaining the confidentiality of your Username and Password. You are responsible for all acts and
omissions that occur under your Username or Password whether or not authorized by you. You will immediately
notify Freeman of any unauthorized use of your Username or Password or any other breach of security relating
to the Site or of this Agreement of which you become aware.
7. AUTHORITY. You represent and warrant that: (a) you are at least 18 years of age; and
(b) you possess the legal right, capacity and authority to enter into this Agreement on your behalf and, if
applicable, the corporation or other legal entity on whose behalf you are accessing the Site and to bind you
and such corporation or other legal entity, to this Agreement, including any liability incurred in connection
with your Username and Password.
8. PAYMENT FOR GOODS AND SERVICES. Freeman requires payment in full at the time goods or
services are ordered. Further, Freeman requires that you provide a credit card authorization with your initial
order. For your convenience, Freeman will use the authorization to charge your account for any goods or
services, which may include labor and material handling, not covered by your initial payment, and you hereby
authorize Freeman to use such authorization to charge your account for such goods or services.
9. PRICING AND PRODUCT INFORMATION. While Freeman tries to provide accurate product
and pricing information, pricing or typographical errors may occur. If any goods or services are listed
at an incorrect price or with incorrect information due to an error in pricing or product information,
Freeman shall have the right, at its sole discretion, to refuse or cancel any orders placed for such
goods or services. If an item is mispriced, Freeman may, at its discretion, either contact you for
instructions or cancel your order and notify you of such cancellation.
10. PRIVACY POLICY. You hereby acknowledge and agree that you have read the Freeman
Privacy Policy, the terms of which are incorporated herein by this reference, and agree that the terms of
the Freeman Privacy Policy are reasonable. You consent to the use and disclosure of your personal
information by Freeman and/or its third party providers and distributors in accordance with the Freeman
Privacy Policy. To review the Freeman Privacy Policy, click here.
11. SUBMISSIONS. You agree that if you submit suggestions, ideas, comments or
questions or post any other materials or information on or through the Site (“Comments”), you hereby
grant Freeman and its affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and
fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works
from, distribute and display such Comments in any form, media or technology, now known or later
developed and specifically waive any and all moral rights in the Comments in favour of Freeman.
If you are a corporation, you will arrange to have applicable individuals waive any and all moral
rights in favour of Freeman.You are solely responsible for all Comments.
12. ELECTRONIC COMMUNICATIONS. When you visit the Site or send e-mails to Freeman,
you are communicating with Freeman electronically. You consent to receive communications from Freeman
electronically. Freeman may communicate with you by e-mail or by posting notices on the Site. You
agree that all agreements, notices, disclosures and other communications that Freeman provides to you
electronically satisfy any legal requirement that such communications be in writing.
13. CHANGE OR DENY ACCESS. Freeman reserves the right, at any time with or without
prior notice, to change the Site, limit access to the Site or shut down the Site.
14. DISCLAIMER OF WARRANTIES.
(a) FREEMAN, ITS AFFILIATES AND ANY THIRD PARTY
PROVIDERS AND DISTRIBUTORS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE SITE AND/OR ANY CONTENT ALL OF
WHICH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FREEMAN, ITS AFFILIATES AND ANY THIRD PARTY
PROVIDERS AND DISTRIBUTORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF
ANY KIND WHATSOEVER, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF INFORMATIONAL CONTENT AND NON-INFRINGEMENT, AND THOSE
ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
(b) FREEMAN MAKES NO PROMISE, COVENANT, REPRESENTATION, WARRANTY OR GUARANTEE THAT YOU OR ANY OTHER
USER OF THE SITE WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SITE OR
THAT THE SITE OR ANY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH THE SITE OR FREEMAN WILL BE
APPROPRIATE FOR ANY PARTICULAR USE TO WHICH YOU MAY PUT THEM. FREEMAN, ITS AFFILIATES AND ANY THIRD
PARTY PROVIDERS OR DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT THE SITE, ITS SERVERS, THE CONTENT, OR ANY E-MAIL
SENT FROM FREEMAN ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE OR WILL BE AVAILABLE
ON AN UNINTERRUPTED AND ERROR FREE BASIS.
(c) FREEMAN, ITS AFFILIATES AND ANY THIRD PARTY PROVIDERS AND DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT THE
SITE OR THE CONTENT WILL BE UNINTERRUPTED, ERROR-FREE, RELIABLE, AVAILABLE, CURRENT, COMPLETE, ACCURATE,
VIRUS-FREE OR SECURE. FREEMAN CANNOT AND DOES NOT WARRANT OR GUARANTEE THAT ANY ELECTRONIC COMMUNICATIONS
(INCLUDING VIA THE SITE OR E-MAIL) OR ANY ELECTRONIC COMMERCE CONDUCTED ON OR THROUGH THE SITE, IS OR WILL
BE TOTALLY SECURE.
(d) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN REPRESENTATIONS OR WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE
DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND CONDITIONS MAY NOT APPLY TO YOU.
15. LIMITATION OF LIABILITY.
(a) YOUR USE OF THE SITE AND THE CONTENT ARE AT YOUR
SOLE RISK. IN NO EVENT SHALL FREEMAN, ITS AFFILIATES, OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS BE LIABLE
FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND (INCLUDING FOR ANY LOSS OF DATA, PRIVACY, SECURITY, GOODWILL, REVENUE OR PROFITS, COSTS OF
LOST OR DAMAGED DATA, OR LIABILITIES TO THIRD PARTIES), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SITE OR
THE CONTENT, INCLUDING (I) ANY USE OF , OR RELIANCE ON, THE SITE, THE CONTENT, OR GOODS OR SERVICES ACCESSIBLE,
ACCESSED OR USED ON OR THROUGH THE SITE, (II) ANY FAILURE OR DELAY (INCLUDING THE USE OF OR INABILITY TO USE ANY
PART OF THE SITE OR THE CONTENT FOR TAKING ORDERS), OR (III) THE PERFORMANCE OR NON -PERFORMANCE BY FREEMAN OR
ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS, INCLUDING NON -PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION,
INSOLVENCY, DISSOLUTION OR LIQUIDATION.
(b) FREEMAN AND ITS AFFILIATES ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGE TO, OR VIRUSES
OR OTHER CODE THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OR ACCESS TO THE
SITE, THE CONTENT OR ANY OTHER SITE.
(c) THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW AND EVEN IF AN AUTHORIZED REPRESENTATIVE OF FREEMAN, ITS AFFILIATES OR ANY THIRD PARTY PROVIDERS OR DISTRIBUTORS
HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE EFFECTIVENESS
OF OTHER REMEDIES.
(d) IF, NOTWITHSTANDING ANY OF THE FOREGOING LIMITATIONS OF LIABILITY, FREEMAN, ITS AFFILIATES OR ANY THIRD PARTY
PROVIDER OR DISTRIBUTOR ARE FOUND LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR LIABILITY WHICH ARISES OUT OF OR IS
IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SITE OR THE CONTENT, THE TOTAL LIABILITY OF FREEMAN, ITS AFFILIATES AND
ANY THIRD PARTY PROVIDERS AND DISTRIBUTORS SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, US$100.00. THE EXISTENCE OF
ONE OR MORE CLAIMS OR CAUSES OF ACTION SHALL NOT ENLARGE THIS LIMIT.
(e) THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES IN THIS
AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
(f) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME
OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
16. INDEMNIFICATION. You shall defend, indemnify and hold harmless Freeman, its affiliates, and
any third party providers and distributors, and its and their officers, directors, employees and agents from and against
all claims, causes of action or demands, suits or other proceedings, including reasonable legal and accounting fees,
brought by or on your behalf in excess of the liability described herein or by third parties as a result of your use of
the Site. You further agree to defend, indemnify and hold harmless Freeman, its affiliates, and any third party providers
and distributors, and its and their officers, directors, employees and agents, from and against all claims, demands, suits
or other proceedings, and all resulting loss, damage, liability, cost and expense (including reasonable attorneys’ fees),
made by any third party due to or arising out of materials or information you submit, post to or transmit through the Site,
your access to and use of the Site, the Content and other materials, goods and services available on or through the Site
and Freeman, your violation of this Agreement or your violation of any rights of others. All rights and duties of
indemnification that are set forth herein shall survive termination of this Agreement.
17. LINKS. The Site contains links to other Web sites. Such links are provided solely as a convenience
to you and not as an endorsement by Freeman, its affiliates or any third party providers or distributors, of such other
Web sites, including any related materials or information. None of Freeman, its affiliates or any third party provider or
distributor shall be responsible or liable for any other Web sites and make no representation or warranty regarding any other
Web sites or the materials or information on such Web sites. Your use of any such other Web sites is at your own risk. You
agree that you will bring no suit or claim against Freeman, its affiliates or any third party providers or distributors,
arising from or based on your use of, or the offer or purchase of goods or services on or through, such other Web sites.
18. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. Notifications of claimed copyright
infringement should be sent to Freeman’s Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE
NO RESPONSE. Click here to see Notice and Procedure for Making Claims of Copyright Infringement
19. RELATIONSHIP. The relationship between Freeman and you will be that of independent contractors, and
neither of us nor any of our respective officers, agents or employees will be held or construed to be partners, joint ventures,
fiduciaries, employees or agents of the other.
20. GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND ITS PERFORMANCE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS, UNITED STATES OF AMERICA, WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS. YOU CONSENT AND SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN DALLAS COUNTY, TEXAS, UNITED STATES OF AMERICA, IN ALL
QUESTIONS AND CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE OR THE CONTENT. You must bring any claim
or cause of action arising from or relating to this Agreement, the Site or the Content within two (2) years from the date on
which such claim or action arose or accrued.For Canadian purchasers, this Agreement and its performance shall be governed by
and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable therein. Canadian
purchasers consent and submit to the exclusive jurisdiction of the provincial and federal courts located in Toronto, Ontario, Canada.
21. ATTORNEY’S FEES. If Freeman or its affiliates take any action to enforce this Agreement, such
parties will be entitled to recover from you, and you agree to pay, all reasonable attorney’s fees and any cost of litigation,
in addition to any other relief, at law or in equity, to which such parties may be entitled.
22. INJUNCTIVE RELIEF. You acknowledge that a violation or attempted violation of any of this Agreement
will cause such damage to Freeman as will be irreparable, the exact amount of which would be difficult to ascertain and for
which there will be no adequate remedy at law. Accordingly, you agree that Freeman shall be entitled as a matter of right to
an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of this Agreement
by you, or your affiliates, partners, or agents, as well as recover from you any and all costs and expenses sustained or incurred
by Freeman in obtaining such an injunction, including reasonable attorney’s fees. You agree that no bond or other security
shall be required in connection with such injunction.
23. TERMINATION. Freeman may, in its sole discretion, terminate this Agreement at any time for any or no
reason, with or without prior notice. Without limiting the foregoing, Freeman may terminate this Agreement if, in its sole
discretion, you fail to comply with any of the terms of this Agreement. Any termination of this Agreement shall not affect
any right to relief to which Freeman, its affiliates and any third party providers and distributors may be entitled, at law or
in equity. Upon termination of this Agreement, all rights granted to you will immediately terminate and revert to Freeman,
its affiliates and any third party providers or distributors, as applicable and you shall immediately cease all of the Site
and the Content. The provisions of this Agreement which by their express or implied terms extend beyond the termination of
this Agreement shall continue in full force and effect notwithstanding the termination of this Agreement, including any
disclaimer of warranties, limitations of liability, indemnification, ownership and restrictions on use.
24. ASSIGNMENT. You shall not assign, convey, subcontract or delegate this Agreement or any rights,
duties or obligations hereunder. Freeman may freely assign, convey, subcontract or delegate this Agreement or any rights,
duties and obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective permitted successors, assign, heirs and legal representatives.
25. MODIFICATION. Freeman has the right to update this Agreement from time to time, and may amend it at
any time to incorporate additional terms specific to additional features, materials, products, opportunities or services that
Freeman may make available on or through the Site. All such updates and amendments are effective immediately upon notice
thereof, which we may give by any means, including by posting a revised version of this Agreement or other notice on the Site.
You should view this Agreement often to stay informed of changes that may affect you, as your continued use of the Site
signifies your continuing consent to be bound by the terms of this Agreement. We expressly reserve the right to make any
changes to this Agreement, or to the Site and its Content, at any time with or without prior notice to you.
This Agreement was last changed on May 15, 2007.
26. ADDITIONAL TERMS. Additional terms and conditions may apply to purchases of goods and services and
other uses of portions of the Site, and you agree to abide by any such other terms and conditions.
27. SEVERABILITY. These terms and conditions shall be deemed severable. If any provision of this
Agreement is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent
permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining
provisions.
28. WAIVER. Freeman’s failure at any time to require performance of any provision of this Agreement or
to exercise any right provided for in this Agreement shall not be deemed a waiver of such provision or such right. All
waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by Freeman
of any breach of any provision of this Agreement or of any right provided for in this Agreement shall be construed as a
waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right
under this Agreement.
29. HEADINGS. The headings used in this Agreement are included for convenience only and will not limit
or otherwise affect the terms and conditions herein. As used in this Agreement, “including” shall mean “including, but not
limited to”.
30. ENTIRE AGREEMENT. This Agreement, together with any terms and conditions incorporated herein or
referred to herein (including the Purchase Terms and Freeman Privacy Policy), constitute the entire agreement between us relating to the subject matter
hereof, and supersedes any prior understandings or agreements (whether oral or written) regarding the subject matter, and
may not be amended or modified except in writing or as provided herein (including by Freeman making such amendments or
modifications available on the Site).
31. FRENCH LANGUAGE. The parties hereby confirm their express wish that this Agreement, and all
documents relating thereto, be drawn up in English only, but without prejudice to any such documents or instruments
which may from time to time be drawn up in French only, or in both French and English.
Les parties aux présentes confirment leur volonté que le présent contrat de même que tous autres documents s'y rapportant
soient rédigés en anglais seulement, mais sans préjudice cependant à tous tels documents qui pourront à l'occasion être rédigés
en français seulement ou à la fois en français et en anglais.
|
