Last Updated: March 1, 2017
This Agreement is between you and Polycor Inc., (“Polycor Inc.” or “we“) concerning your use of (including any access to) the websites currently located at polycor.com, vetrazzo.com, swensongranite.com, rockofages.com, rockofagescanada.com, boutique.polycor.com and any other websites that we own and control and which contain a link to this Agreement (together with any materials and services available therein, and successor site(s) thereto, the “Sites”), and the mobile software applications currently entitled “Polycor Inc.” and any other mobile applications that we own and control and which contain a link to this Agreement (together with any materials and services available therein, and successor applications(s) thereto, the “Apps”). The Sites and Apps are referred to collectively in this Agreement as the “Polycor Inc. Online Properties“.
This Agreement hereby incorporates by this reference any additional terms and conditions posted by Polycor Inc. through the Polycor Inc. Online Properties, or otherwise made available to you by Polycor Inc.
Your use of the Polycor Inc. Online Properties is governed by this Agreement regardless of how you access the Polycor Inc. Online Properties, including through the Internet, through Wireless Access Protocol (commonly referred to as “WAP”), through a mobile network or otherwise.
BY USING THE POLYCOR INC. ONLINE PROPERTIES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT. IF YOU ARE USING THE POLYCOR INC. ONLINE PROPERTIES ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT.
We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Polycor Inc. Online Properties. Any such changes will become effective on the “Last Updated” date indicated above and those revised terms will not apply to any dispute between you and us arising prior to such date on which the revised Agreement incorporating such changes became effective, or on which we otherwise notified you of such changes.
Your use of the Polycor Inc. Online Properties following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Polycor Inc. Online Properties (including access via any third-party links); charge, modify or waive any fees required to use the Polycor Inc. Online Properties; or offer opportunities to some or all users.
2. Information Submitted Through the Polycor Inc. Online Properties
3. Jurisdictional Issues
The Polycor Inc. Online Properties are controlled or operated (or both) from Canada, and are not intended to subject Polycor Inc. to any non-Canadian jurisdiction or law. The Polycor Inc. Online Properties may not be appropriate or available for use in some non-Canadian jurisdictions. Any use of the Polycor Inc. Online Properties is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Polycor Inc. Online Properties’ availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
The Polycor Inc. Online Properties may make available listings, descriptions and images of goods or services or related coupons or discounts (collectively, “Products“), as well as references and links to Products. Such Products may be made available by Polycor Inc. or by third parties. The availability through the Polycor Inc. Online Properties of any listing, description or image of a third-party Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product (including the validity of any coupon or discount) is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors and patterns, however the actual colors and patterns you see will depend, amongst others, on your computer system and the natural variation that may occur in our products, and we cannot guarantee that your computer will accurately display such colors nor that the colors and patterns displayed will be consistently identical in the available product at the time of any transaction, being understood that most of Polycor’s Products are made of, or include, natural stone and other natural products which may, in their essence, vary in colors and patterns. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
We may make available the ability to purchase or otherwise obtain certain Products through the Polycor Inc. Online Properties or through other sales channels such as telephone orders, mail orders or our physical stores (a “Transaction“). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You agree to pay all charges incurred by you or on your behalf through the Polycor Inc. Online Properties, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
Restrictions. Polycor Inc. reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honouring of any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Product. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner. You agree that you will not resell any products or services obtained through a Transaction, unless we have provided our express prior written consent for you to do so.
Refunds & Exchanges. Refunds and exchanges will be subject to Polycor Inc.’s applicable refund and exchange policies. The refund and exchange policy for Transactions made through polycor.com is available at https://www.polycor.com/inc_/polycor-inc-privacy-policy.
Shipping. Polycor Inc. offers shipping services subject to Polycor Inc.’s applicable shipping policies. The shipping policy for Transactions made through polycor.com is available at https://boutique.polycor.com/shipping-delivery-policy.
Trade Customers; Contract Customers. In addition to this Agreement, other general or specific terms and conditions may apply to you and your Transactions; such additional terms and conditions are generally made available in the course of negotiation of the Transactions, or simultaneously with the conclusion of any specific agreement in connection with a specific Transaction.
To the extent of any conflict between the terms and conditions of this Agreement and those of the Trade Terms & Conditions or the Contract Terms & Conditions, those of the Trade Terms & Conditions and the Contract Terms & Conditions will govern.
6. Registration; User Names and Passwords
You may need to register to use all or part of any Polycor Inc. Online Property. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Polycor Inc., are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password or account for any Polycor Inc. Online Property.
7. Rules of Conduct
In connection with the Polycor Inc. Online Properties, you must not:
Post, transmit or otherwise make available through or in connection with the Polycor Inc. Online Properties any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libellous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner; or (e) otherwise unlawful or illegal.
Post, transmit, use or otherwise make available through or in connection with the Polycor Inc. Online Properties any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
Use the Polycor Inc. Online Properties for any purpose that is fraudulent or otherwise tortious or unlawful.
Harvest or collect information about users of the Polycor Inc. Online Properties.
Interfere with or disrupt the operation of the Polycor Inc. Online Properties or the servers or networks used to make the Polycor Inc. Online Properties available, including by hacking or defacing any portion of the Polycor Inc. Online Properties; or violate any requirement, procedure or policy of such servers or networks.
Restrict or inhibit any other person from using the Polycor Inc. Online Properties.
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Polycor Inc. Online Properties except as expressly authorized herein, without Polycor Inc.’s express prior written consent.
Reverse engineer, decompile or disassemble any portion of the Polycor Inc. Online Properties, except where such restriction is expressly prohibited by applicable law.
Remove any copyright, trademark or other proprietary rights notice from the Polycor Inc. Online Properties.
Frame or mirror any portion of the Polycor Inc. Online Properties, or otherwise incorporate any portion of the Polycor Inc. Online Properties into any product or service, without Polycor Inc.’s express prior written consent.
Systematically download and store content of the Polycor Inc. Online Properties.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather content from the Polycor Inc. Online Properties, or reproduce or circumvent the navigational structure or presentation of the Polycor Inc. Online Properties, without Polycor Inc.’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Sites’ root directories, Polycor Inc. grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Polycor Inc. reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Polycor Inc. Online Properties.
8. Limited License
Subject to your compliance with this Agreement, and solely for so long as you are permitted by Polycor Inc. to use the Sites, you may view one (1) copy of any portion of the Sites to which we provide you access hereunder, on any single device, solely for your personal, non-commercial use. The Apps are licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Polycor Inc. to use the Apps, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the Apps on a mobile device that you own or control.
9. Polycor Inc.’s Proprietary Rights
We and our suppliers own the Sites and Apps, which are protected by proprietary rights and laws. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the Apps and remove (that is, uninstall and delete) the Apps from your mobile device. Our trade names, trademarks and service marks, among others, include Polycor Inc. and any associated logos. All trade names, trademarks, service marks and logos on the Polycor Inc. Online Properties not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Polycor Inc. Online Properties should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
10. Third Party Materials; Links
Certain functionalities of the Polycor Inc. Online Properties may make available access to materials made available by third parties (“Third Party Materials“), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionalities, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Polycor Inc. with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Polycor Inc. Online Properties at any time. In addition, the availability of any Third Party Materials through the Polycor Inc. Online Properties does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
12. DISCLAIMER OF WARRANTIES
THE POLYCOR INC. ONLINE PROPERTIES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. POLYCOR INC. DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE POLYCOR INC. ONLINE PROPERTIES AND ANY PRODUCTS AND THIRD PARTY MATERIALS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. THIS SECTION 12 DOES NOT AFFECT ANY EXPRESS WARRANTIES THAT WE MAY PROVIDE DIRECTLY TO YOU IN WRITING WITH RESPECT TO PRODUCTS PURCHASED THROUGH THE POLYCOR INC. ONLINE PROPERTIES.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH POLYCOR INC. AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES“).
While we try to maintain the timeliness, integrity and security of the Polycor Inc. Online Properties, we do not guarantee that the Polycor Inc. Online Properties are or will remain updated, complete, correct or secure, or that access to the Polycor Inc. Online Properties will be uninterrupted. The Polycor Inc. Online Properties may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Polycor Inc. Online Properties. If you become aware of any such alteration, please contact us by visiting https://www.polycor.com/contact-us/ and providing a description of such alteration and its location.
13. LIMITATION OF LIABILITY
POLYCOR INC. WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION TRANSMITTED VIA THE POLYCOR INC. ONLINE PROPERTIES (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF SUCH INFORMATION), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, POLYCOR INC. WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE POLYCOR INC. ONLINE PROPERTIES OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE POLYCOR INC. ONLINE PROPERTIES OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE POLYCOR INC. ONLINE PROPERTIES. THE MAXIMUM AGGREGATE LIABILITY OF RESTORATION HARDWARE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF: (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO RESTORATION HARDWARE TO USE THE POLYCOR INC. ONLINE PROPERTIES; AND (B) TEN CANADIAN DOLLARS ($10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH RESTORATION HARDWARE AND THE AFFILIATED ENTITIES.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless Polycor Inc. and the Affiliated Entities from and against all claims, losses, costs and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, any of the Polycor Inc. Online Properties; and (b) any violation or alleged violation of this Agreement by you.
This Agreement is effective until terminated. Polycor Inc. may terminate or suspend your use of any or all of the Polycor Inc. Online Properties at any time and without prior notice, including if Polycor Inc. believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Polycor Inc. Online Properties will immediately cease, and Polycor Inc. may, without liability to you or any third party, immediately deactivate or delete your user name, password and account(s), and all associated materials, without any obligation to provide any further access to such materials. Sections 2-8 and 10-23 shall survive any expiration or termination of this Agreement.
16. Governing Law; Arbitration
The terms of this Agreement are governed by the laws of the province of Quebec, and the federal laws of Canada applicable therein, without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND RESTORATION HARDWARE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be governed by, and administered in compliance with, the Civil Code of Quebec and the Quebec Code of Civil Procedure as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties, in Quebec City. If the parties are unable to agree on a location, such determination should be made by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you. Any arbitration procedure, including any evidence, document or correspondence in connection therewith, and any arbitral decision shall be and remain strictly confidential.
We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from GetNetWise (http://www.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Polycor Inc. does not endorse any of the products or services listed on such sites.
18. Information or Complaints
If you have a question or complaint regarding any of the Polycor Inc. Online Properties, please contact us by visiting https://www.polycor.com/contact-us/. You may also contact us by writing to Polycor Inc., Attn: Customer Service, 139 rue Saint-Pierre, Quebec City (Quebec) Canada G1K 8B9, or by calling us at 1 418 692-4695. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your email correspondence with us.
19. Export Controls
You are responsible for complying with applicable export controls and for any violation of such controls, including any embargoes or other rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. or Canadian government embargo or other restriction, or that has been designated by the U.S. or Canadian government as a “terrorist supporting” country; (b) on any of the U.S. or Canadian government lists of restricted end users.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Polycor Inc. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Polycor Inc. relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Polycor Inc. relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Polycor Inc. Online Properties or by email (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Polycor Inc. will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.