WATERGEEKS TERMS AND CONDITIONS FOR USERS
The website located at https://watergeeks.io/ and related software and services (collectively, the “Watergeeks Platform”) are owned and operated by Les Solutions Watergeeks Inc., a corporation carrying on business as Watergeeks (“Watergeeks”, “we”, “us” or “our”), and is for the use of non-consumer individuals, businesses, and other public and private organizations that are authorized to do online business to business commerce (the “User” or “you” or “your”).
You must read, agree with and accept all of the terms and conditions contained in these Terms and conditions in order to use our Watergeeks Platform.
These Terms and conditions (the “Terms”) are a contract between Watergeeks and all Users.
For the purposes of these Terms, if you are using the Watergeeks Platform in your individual capacity, you are the User and the contracting party to these Terms. If you are using the Watergeeks Platform on behalf of your employer, then you represent and warrant that you have the authority to bind your employer and your employer shall be the User and the contracting party to these Terms. If you are using the Watergeeks Platform as a representative of a legal entity, you represent and warrant that you have the authority to bind said legal entity and this legal entity shall be the User and the contracting party to these Terms. “You” and “your”, as used herein, will refer and apply to such employer or legal entity and its representatives that access the Watergeeks Platform on its behalf. As the case may be, your employer or that legal entity
YOU UNDERSTAND THAT BY SIGNING UP FOR AND USING THE WATERGEEKS PLATFORM, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE WATERGEEKS PLATFORM.
AS THE CASE MAY BE, YOUR EMPLOYER OR THAT ENTITY IS RESPONSIBLE FOR ANY BREACH OF THESE TERMS BY ANY OF ITS REPRESENTATIVES.
We may revise these Terms at any time. If any such revision results in a material change to these Terms, as determined by Watergeeks in its sole discretion, we will notify you by posting a notice on the Watergeeks Platform or by sending you an email at the address you have registered with us. Continued use of the Watergeeks Platform after the effective date of any revisions to these Terms constitutes your acceptance of the revised Terms. We recommend that you print a copy of these Terms for your records.
1. THE WATERGEEKS PLATFORM
The Watergeeks Platform is a specialized marketplace that allows Users to purchase or sell new or previously used industrial equipment and components (together, “Items” and each an “Item”). As such, you may sell and buy Items to and from other local and international individual merchants, businesses and other public and private organizations (“Other Users”). Any actual agreement for sale and purchase of an Item is directly between you and Other Users but must contain the required terms as further described in Section 1.6 below (an “Agreement”). Watergeeks is solely a referencing platform and shall never act as seller or buyer.
Through the Watergeeks Platform, Users may also access a specific section indicated as the “Watergeeks Boutique” to purchase an Item directly from us (the “Watergeeks Boutique”). Except for Items explicitly listed on the Watergeeks Boutique, Watergeeks does not have possession of any Item listed or sold through the Watergeeks Platform and is not involved in the transaction between Users.
Any purchase of an Item listed on the Watergeeks Boutique will be subject to Section 5 below. Any purchase and sale of an Item other than Items listed on on the Watergeeks Boutique will be subject to Section 4 below.
Any information in connection with an Item that is displayed on the Watergeeks Platform, such as specification sheets, maintenance logs, pricing, shipping, listing, and sourcing is provided for reference purposes only since Watergeeks displays the information given by Users and does not conduct any independent verification as to the truth, accuracy or completeness of such information. For the purpose of any Agreement, Users should seek confirmation by Other Users of any information that they wish to rely on.
The User may submit or post an offer to sell Items on our Watergeeks Platform, such offer including the relevant information in connection with an Item and the sale thereof that is necessary to cause a sale of the Item (an “Item Offer”).
The User may submit or post bids to purchase Items, in connection with Item Offers posted or to be posted by Other Users on our Watergeeks Platform, such bids including the relevant information in connection with the Item and the purchase thereof that is necessary to cause a purchase of the Item (an “Item Bid”). Where expressly indicated with a “buy now”, “purchase right away” or similar clear indication by us, an Item Bid may cause an immediate purchase.
Any posting of an Item Offer or an Item Bid shall be considered to be an invitation for Other Users to submit Item Bids or Item Offers, as applicable. Acceptance of Item Bids or Item Offers are at the sole discretion of Users. When an Item Bid or an Item Offer is accepted, Users may then conclude an Agreement directly with the Other User, including additional terms and conditions to the ones contained in the Item Bid or Item Offer, provided that such Agreement shall contain the required terms further described in Section 1.6.
Watergeeks shall facilitate your Agreement with said Other User by functioning as a referencing platform and coordinating the processing of payment for you and Other Users but shall not be a party to any Agreement between you and Other Users.
If you are not satisfied with the performance of the Agreement by the Other User, you may address any issue directly with the Other User. Watergeeks may, at its sole discretion, assist you to facilitate the resolution of disputes between you and Other Users but Watergeeks has no control over and does not guarantee the performance of any Agreement between you and Other Users.
For greater certainty, Watergeeks offers referencing and assistance services and Watergeeks’ sole undertaking is to provide the Watergeeks Platform and enable relationships between Users and Other Users and shall never be responsible for the fulfillment of any transaction or Agreement between you and Other Users with regards to Items, Item Offers or Item Bids in connection therewith.
Subject to an additional service agreement between you and Watergeeks for a specific inventory of Items, as the case may be, Watergeeks may also provide additional services to you in connection with the Watergeeks Platform, including but not limited to curating and posting Item Offers and Item Bids and enabling the formation of Agreements between you and Other Users. These Terms shall apply in addition to any such additional service agreement.
The Watergeeks Platform is available only to individuals and legal entities that are capable of forming legally binding contracts under applicable law. In order to create an account, you must provide us with your legal name, contact information, and profile information regarding your business and your needs. In addition, by creating an account, you represent and warrant that you are not a citizen or resident of a country in which use of or participation in the Watergeeks Platform is prohibited by law, decree, regulation, treaty or administrative act.
You confirm that you are not prohibited or limited in any way from participating as a User on the Watergeeks Platform by, as the case may be, (a) any contract (e.g., employment, consulting, confidentiality, or non-disclosure agreements), (b) your current employer’s policies or codes of conduct, (c) any similar policies or obligations that limit your conduct in any way or (d) any rules of conduct applicable to your profession or industry or any similar laws, rules or regulations. To the extent your right to use the Watergeeks Platform is limited in any way, you confirm that you have obtained all necessary consents or waivers (e.g., the consent of your employer, any company or organization for which you have consulted, or any affiliated academic or government organization) to use our Watergeeks Platform for the purpose of posting Item Offers or Item Bids. Notwithstanding the foregoing, Watergeeks may determine your eligibility to create an account on the Watergeeks Platform in its sole discretion.
1.3 Your Account
Watergeeks reserves the right to validate your identity and account information at any time. You are solely responsible for ensuring and maintaining the secrecy and security of your account passwords. You are solely responsible for any use or action taken through the use of such passwords on the Watergeeks Platform. You must notify Watergeeks’ support immediately if you suspect that any of your passwords have been lost or stolen, or if the security of the Watergeeks Platform has been otherwise compromised.
1.4 Independent User Status
As a User, you acknowledge and agree that your relationship to Watergeeks is that of an independent contractor and customer receiving professional services, and that (a) you have no authority to act on behalf of Watergeeks; (b) Watergeeks does not, in any way, supervise, direct, or control the performance of any Agreement by Other Users; (c) Watergeeks will not have any liability or obligations whatsoever under any Agreement between you and Other Users; (d) Watergeeks makes no representations as to the reliability, capability, or qualifications of any Other User or the quality, security or legality of any Item provided by such Other Users; (e) Watergeeks makes no representations as to the capacity of any Other User, as the case may be, to pay for or to deliver any Item.
Further, you are solely responsible for: (a) compensating any of your principals, employees and agents, including, without limitation, wages and employee benefits; (b) reporting any required information and paying any required remittance in connection with any Item or Agreement to all applicable government agencies; (c) complying with all applicable laws with respect to your principals, employees and agents.
WATERGEEKS DOES NOT DIRECT, HAS NO CONTROL OVER, MAKES NO REPRESENTATIONS, AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF ITEMS ADVERTISED, THE TRUTH OR ACCURACY OF LISTINGS, THE QUALIFICATIONS, BACKGROUND, OR IDENTITIES OF OTHER USERS, THE ABILITY OF OTHER USERS TO DELIVER ITEMS, OR THAT A OTHER USER CAN OR WILL ACTUALLY COMPLETE A TRANSACTION. FOR THE AVOIDANCE OF ANY DOUBT, WATERGEEKS DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE STATUS OF ANY OTHER USER AS OWNER OF AN ITEM. WITHOUT LIMITING THE FOREGOING, WATERGEEKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED REGARDING OR RELATING TO THE OTHER USERS, THE OTHER USERS’ ITEMS OR ANY AGREEMENT WITH OTHER USERS AND WATERGEEKS DISCLAIMS ANY AND ALL LIABILITY RELATING THERETO.
1.5 No conflict
You hereby represent and warrant that you are not party to any written or oral agreement or understanding, or bound by or otherwise subject to any rules of conduct applicable to your profession or industry or any similar laws, rules or regulations, that would restrict or prevent you from using the Watergeeks Platform or from entering into an Agreement with respect to an Item for which you posted an Item Offer or an Item Bid.
1.6 Third Party Websites
The Watergeeks Platform may from time to time include links to third party websites. Watergeeks has no control over, is not responsible for and does not endorse any such sites. Watergeeks shall have no liability for any damage or loss incurred by you or any third party from visiting or using such third party websites.
2. LICENSE AND RESTRICTIONS; OWNERSHIP
2.1 License Grant
Subject to your compliance with these Terms, Watergeeks hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license for your internal business purposes only (without the right to sublicense) to access and use the Watergeeks Platform, and subject to the limitations set forth below. Watergeeks reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Watergeeks Platform comprise a limited license and do not constitute the sale or transfer of any software program or other intellectual property. For greater certainty, all intellectual property owned by Watergeeks at the beginning of the relation with the User will remain, and any intellectual property created during or pursuant to this relationship thereafter will become, the sole and exclusive property of Watergeeks.
You agree that: (a) you will not use the Watergeeks Platform if you are not fully able and legally competent to agree to these Terms; (b) you will only use the Watergeeks Platform in full compliance with all applicable laws and these Terms; and (c) you will not use the Watergeeks Platform for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct.
Further, except as specifically permitted herein or approved in advance in writing by Watergeeks, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Watergeeks Platform in any unauthorized manner; (b) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Watergeeks Platform or any part thereof in any form or manner or by any means; (c) harvest or scrape any content or data from the Watergeeks Platform; (d) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Watergeeks Platform; (e) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Watergeeks Platform or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law); (f) utilize the Watergeeks Platform to (A) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or (B) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (g) circumvent any functionality that controls access to or otherwise protects the Watergeeks Platform; (h) use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access the Watergeeks Platform and post or collect content for any purpose; or (i) permit any third party to engage in any of the foregoing.
Any attempt to do any of the foregoing is a material breach of these Terms and a violation of the rights of Watergeeks and its licensors subject to termination in accordance with Section 9 hereof.
2.3 Watergeeks Platform Ownership
The Watergeeks Platform’s “look and feel” (e.g., text, graphics, images, logos), proprietary content and software code, information and other materials are protected under intellectual property rights laws. You acknowledge and agree that Watergeeks and/or its licensors own all right, title and interest in and to the Watergeeks Platform (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests.
Any and all: (a) suggestions for correction, change and modification to the Watergeeks Platform and other feedback, information and reports you provide to Watergeeks (collectively “Feedback”); and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by Watergeeks or otherwise relating to the Watergeeks Platform (collectively, “Revisions”), are and will remain the property of Watergeeks. All Feedback and Revisions become the sole and exclusive property of Watergeeks and Watergeeks may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Watergeeks any and all rights, title and interest that you may have in and to any and all Feedback and Revisions.
3. CONTENT POLICY
3.1 Your Content
Watergeeks may provide you temporary storage space on the Watergeeks Platform (“Storage”) for the exchange of documents and other information related to the sale or purchase of Items between you and Other Users, including any User Materials (as defined hereinafter). Watergeeks reserves the right, to be exercised at any time, to delete your Storage and all data therein sixty (60) days after the completion of any transaction with regards to an Item. For the purposes of these Terms, “User Materials” means the instructions, specifications, materials, information and supporting documents connected therewith, provided in connection with any Item or Agreement and any intellectual property rights contained therein.
3.3 Disclosure of Your Content
Our confidentiality obligations with respect to your Content shall be governed by Section 5 hereof. Notwithstanding the foregoing, you acknowledge and agree that Watergeeks may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any of your Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Watergeeks, its affiliates, officers, employees, representatives and agents, as well as Watergeeks Platform Users and the general public.
3.4 Prohibited Content
You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions set forth in these Terms. Watergeeks reserves the right to investigate and terminate your account in accordance with Section 9 and/or take appropriate legal action against any User who violates this Section 3.4. Specifically, and without limitations, taking into considerations restrictions in the Applicable Laws, you represent and warrant that none of your Content: (a) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (b) constitutes material, non-public information about Watergeeks and/or constitutes information the disclosure of which would be in violation of securities laws; (c) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation; (e) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (f) in the sole judgment of Watergeeks, is objectionable or which restricts or inhibits any other person from using or enjoying the Watergeeks Platform, or which may expose Watergeeks or its Users to any harm or liability of any kind. Watergeeks has the right, but not the obligation, to monitor your use of the Watergeeks Platform and Content to determine your compliance with these Terms.
4. PURCHASE AND SALE BETWEEN USERS
4.1 Agreement, Required Terms
Unless otherwise agreed to in writing and signed by Watergeeks, each Agreement shall be deemed to include the following terms and conditions in favour of Watergeeks, provided that such terms and conditions do not constitute legal advice from Watergeeks, and you and Other Users should consult independent counsel in drafting and negotiating any Agreement:
- Payments and Billing. Users will pay Watergeeks the applicable commission and any other applicable fees in accordance with the Terms.
- Satisfaction of purchaser. The User selling the Item (“Seller”) and the User purchasing the Item (“Purchaser”) agree that, in case of failure by Seller to deliver the Item to Purchaser, or in case of Seller delivering Items that is of quality or quantity unsatisfactory to Purchaser, Watergeeks shall not be liable for the satisfaction of Purchaser and only Seller shall be liable to Purchaser for any amount claimed in connection with the Item or the Agreement.
- Third Party Beneficiary. Seller and Purchaser understand and agree that Watergeeks is an intended beneficiary of each sale and purchase Agreement and that Watergeeks has the right to enforce its rights and obligations under such Agreement on its own behalf. Watergeeks shall be deemed to intervene to any sale and purchase Agreement covered by these Terms and entered into by Users with Other Users, solely in connection with the provisions specifically related to Watergeeks pursuant to these Terms.
For a period of one (1) year after the time you first identify an Other User who has posted an Item Offer on the Watergeeks Platform (“Exclusivity Period”), you will use the Watergeeks Platform as your exclusive method to bid on or to purchase any Item Offered by that Other User. Furthermore, during the Exclusivity Period, you shall not make, encourage or solicit complete or partial payments to such Other User for an Item outside of the Watergeeks Platform, or otherwise circumvent the Watergeeks Platform’s payment methods. Any violation of the foregoing restrictions is a material breach of these Terms.
By way of illustration and without limitation of the foregoing, within the Exclusivity Period you will not: (a) accept proposals from, purchase an Item from, or make payments to any Other Users first identified through the Watergeeks Platform, except via the Watergeeks Platform or via services provided by Watergeeks; or (b) invoice or report on the Watergeeks Platform an amount lower than that actually agreed between you and an Other User.
You may also request Watergeeks to abridge the Exclusivity Period in respect of a specific Other User for a break-up fee (the “Break-up Fee”) to be agreed upon between you and Watergeeks, acting reasonably. Upon payment of the Break-up Fee you may deal directly with such Other User outside of the Watergeeks Platform and independently from these Terms.
YOU WILL NOTIFY WATERGEEKS IMMEDIATELY IF ANY OTHER USER SUGGESTS MAKING PAYMENTS OUTSIDE OF THE WATERGEEKS PLATFORM WITHIN THE EXCLUSIVITY PERIOD.
4.3 No Background Checks
Watergeeks is not required to and does not verify any information given to Watergeeks by Other Users, nor does Watergeeks perform background checks on Other Users. Watergeeks may provide information about Other Users to you, such as a strength or risk score, geographical location or third party feedback, background check or verification of identity or credentials. However, such information is based solely on data that Other Users submit and Watergeeks does not make and shall not be deemed to make any representation or warranty as to the accuracy of such information. Watergeeks provides such information solely for the convenience of its Users and said information shall not constitute an introduction, endorsement or recommendation by Watergeeks.
5. PURCHASE AND SALE THROUGH THE WATERGEEKS BOUTIQUE
- By purchasing any of the Items listed on the Watergeeks Boutique, you are confirming that you agree to pay all fees and charges incurred by you or the users of the payment method pertaining to the purchase of such Items. Watergeeks may refuse a purchase of an Item listed on the Watergeeks Boutique for any reason whatsoever.
- Prices posted on Watergeeks Boutique are subject to change without notice. Discounts on selected Items are effective only while supplies last.
- Watergeeks may correct any error in prices indicated on the Watergeeks Boutique. Watergeeks will use its best efforts to draw your attention to pricing errors as quickly as possible via the Watergeeks Boutique. In the case of such an error, Watergeeks may, in its sole discretion, refuse a related order or purchase. Prices indicated on the Watergeeks Boutique may differ from in-store prices, and in-store prices may differ between individual stores.
- Except indicated otherwise, all sales and purchases of Items via the Watergeeks Boutique are deemed to be final sales. There are no refunds or exchanges available unless expressly indicated otherwise.
- Watergeeks is not responsible for Items that cannot be delivered or that are not received because User has provided incomplete or incorrect information about the recipient of the purchased Items to be delivered or because the facilities designated by the delivery information are not suitable to receive the Items. Please make sure that the recipient’s address is correct, that the facilities corresponding to that address are suitable, and contact our customer service if you believe that the recipient did not receive the order.
- An order made via the Watergeeks Boutique cannot be cancelled except for reasons specifically provided for by law.
6. FEES AND PAYMENT
Subject to any additional service agreement and to the subscription package selected for the purpose of using the Watergeeks Platform, Watergeeks is free to join. We invite Users to refer to the information made available with regards to our different subscription packages and to identify the subscription package that best suits their needs. Fees may be applicable depending on the selected subscription package. You agree that Watergeeks will commence supplying any services included in a subscription package as soon as you have confirmed your selection of such subscription package and you further agree that any fee related to such subscription package will become applicable from that moment.
Watergeeks collects a commission for each sale and purchase of an Item that is completed via the Watergeeks Platform. When a User buys an Item or submits an Item Bid, Watergeeks will display the amount of fees that will be deducted from the purchase or bid amount prior to payment to the Other User.
Watergeeks may also collect fees for additional services rendered under any additional service agreement entered into between Watergeeks and User.
All fees are non-cancelable and non-refundable. If you have further questions about Watergeeks’ fees, please contact us at email@example.com.
6.1 Payment Methods
Watergeeks may use payment processors for applicable fees and charges that you and Other Users may pay in connection with the use of the Watergeeks Platform and purchase or sale of an Item. You agree to pay Watergeeks any fees you incur on the Watergeeks Platform, including any fees you incur for services provided by Watergeeks or termination fees as stated in Section 11.1, and hereby authorize Watergeeks to charge you in the form of payment mutually agreed to between you and Watergeeks for such fees and charges. To purchase or sell an Item and to receive certain services in connection with your selected subscription package, you will at various times be required to enter certain information, including, without limitation, information on the payment method used in paying for the order and the related invoicing. By supplying that information, you are warranting that it is both correct and current.
If you elect to pay by credit card, you authorize Watergeeks to (a) run, or have run, credit card authorizations on all credit cards provided by you; (b) store your credit card details as your method of payment for any fees and expenses you incur on the Watergeeks Platform; and (c) charge your credit card (or any other form of payment authorized by Watergeeks or mutually agreed to between you and Watergeeks) in payment of any fees you incur on the Watergeeks Platform. All fees are due net thirty (30) days from the invoice date and shall be in Canadian dollars. Any payment not received from you by the due date may accrue, at Watergeeks’ discretion, late charges at the rate of 12% of the outstanding balance per annum, from the date such payment was due until the date paid. If you require that an invoice be submitted against a purchase order before payment can be made, you will be responsible for issuing such purchase order to Watergeeks in a timely fashion and your failure to do so will not affect your obligation to pay all fees in accordance with these Terms.
Purchase and sale of Items, and receiving services in connection with your selected subscription package may be subject to a process that compares the information that you or Other Users provide to us with information about provided to your or Other Users’ financial institution. In the event of a discrepancy, there may be a delay until the information can be corrected.
You agree that you shall be responsible for all applicable sales, use, value added or similar taxes, if any, payable with respect to the Watergeeks Platform provided under these Terms or arising out of or in connection with these Terms whether at the time of invoicing or later determined by a taxing jurisdiction, provided that Watergeeks shall be responsible for all taxes imposed on Watergeeks’ net income or gross receipts, for any personal property taxes on property it owns or leases, and for franchise and privilege taxes on its business. The parties agree to cooperate with each other so both parties may better determine their respective tax liability and minimize such liability to the extent legally permissible. Watergeeks’ invoices will separately state the amounts of any taxes Watergeeks is collecting from you.
7.1 Definition of Confidential Information
7.2 Confidentiality and Non-Use
During the term of these Terms and for a period of three (3) years thereafter (or perpetually with respect to Content), each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner and with the same degree of care that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, agents and/or representatives who have a need to know such Confidential Information for purposes of these Terms and who are bound to protect such Confidential Information as required hereby, or to legal, financial or other professional advisors who are providing professional services to the Receiving Party subject to obligations of confidentiality. In addition, without the Disclosing Party’s written permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party other than in connection with fulfilling the obligations or exercising the rights of the Receiving Party under these Terms (including, without limitation, as may be necessary to support or defend a claim arising under these Terms). Neither party may engage in any purchasing or selling of securities based on any Confidential Information or any material, non-public information and may not communicate any such information to any person or entity when it is reasonably foreseeable that such person is likely to purchase or sell securities based on such information.
7.3 Compelled Disclosure
If the Receiving Party is faced with judicial or governmental action to disclose Confidential Information received hereunder, the Receiving Party must notify the Disclosing Party immediately and, at the Disclosing Party’s request and expense, provide reasonable assistance in opposing such action within the time allotted by the governing rules. The Receiving Party forced to disclose Confidential Information shall furnish only that portion of the Confidential Information that is legally required to be furnished, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
During the term of these Terms, Watergeeks may publicly refer to you as a User of Watergeeks and may use your name and logo alongside the names and/or logos of Other Users on our website, in our User lists, pitch proposals, investor presentations and sales presentations.
You hereby give us your explicit permission, for the purpose of marketing Items, to disclose and publish, on other websites, platforms and to third parties, alongside Items sold by Other Users, any information that you share on the Watergeeks Platform in connection with any of your Item Offers and Item Bids, including images, descriptions and specifications, provided however that Watergeeks will not disclose your name or logo unless having your prior permission.
8. WARRANTY DISCLAIMER
WATERGEEKS MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE OTHER USERS, THE ITEMS LISTED ON THE WATERGEEKS PLATFORM (INCLUDING THE ITEMS LISTED ON THE WATERGEEKS BOUTIQUE), WORK PRODUCT, THE WATERGEEKS PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. ALL ITEMS IS PURCHASED “AS IS” AND AT THE USER’S OWN RISK AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WATERGEEKS DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT, UNLESS IT IS A RESULT OF INTENTIONAL OR GROSS FAULT, WILL WATERGEEKS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF SALES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES IN CONNECTION WITH THESE TERMS OR USE OF THE WATERGEEKS PLATFORM. UNLESS PROVIDED OTHERWISE UNDER APPLICABLE LAW, LIABILITY WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU TO WATERGEEKS DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, CIVIL RESPONSIBILITY, STRICT LIABILITY OR OTHERWISE.
Notwithstanding anything to the contrary in these Terms, you agree to indemnify and hold harmless Watergeeks and its affiliates, officers, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (a) your use of the Watergeeks Platform; (b) your Content; (c) your violation of these Terms; and (d) any dispute between you and an Other User.
Subject to your obligation to pay for an Item that you have purchased as well as your obligation to pay for services that you have received pursuant to any additional service agreement entered into between you and Watergeeks, you have the right to cancel your account at any time upon a ten (10) business days’ notice to Watergeeks subject to the payment of the equivalent of two (2) months subscription fees.
Watergeeks has the unlimited right to irrevocably terminate or limit your account and/or access to the Watergeeks Platform at any time and for any reason, including, without limitation, for violation of these Terms. For the avoidance of doubt, canceling your account does not relieve you of your obligations with respect to the Exclusivity Period set forth in Section 1.7 and termination of these Terms may not terminate an Agreement with any Other User or any obligation therein.
Sections 1.6 (Agreement, Required Terms), 1.7 (Exclusivity), 3.1 (Your Content), 5 (CONFIDENTIALITY), 6 (WARRANTY DISCLAIMER), 7 (LIMITATION OF LIABILITY), 8 (INDEMNIFICATION), 9 (TERMINATION), 10 (DISPUTE RESOLUTION) and 11 (GENERAL) of these Terms will survive any termination thereof.
12. DISPUTE RESOLUTION
12.1 Informal Process First
You agree that in the event of any dispute between you and Watergeeks, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under these Terms.
12.2 Binding Arbitration
Any Dispute which is not resolved through the informal process will be immediately submitted to and settled finally and conclusively by arbitration by a single arbitrator pursuant to the Code of Civil Procedure of Québec. The costs and expenses of arbitration shall be paid as awarded by the arbitrator. Watergeeks, User and Other Users shall each abide by and perform any resulting arbitration award. The arbitration award, when issued, shall be final and shall be enforceable in any court of competent jurisdiction. As a part of any award the arbitrator is authorized to include compensation to the prevailing party for reasonable attorney fees and costs incurred in presenting or defending the Dispute, and in enforcing any award. The location for the arbitration shall be Montréal, Province of Québec, Canada. The proceeding language shall be in both English and French, as may be necessary.
12.3 Limitation Period
In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 10.3 be instituted more than three (3) years after the cause of action arose.
The User hereby covenants and agrees that the User shall not, while being a User of the Watergeeks Platform and for a period of twenty-four (24) months after ceasing to be a User of the Watergeeks Platform, either alone or in conjunction with any other person, as shareholder, director, officer, agent, consultant, employee, creditor or in any manner whatsoever, directly or indirectly, develop, create or operate a platform substantially similar to the Watergeeks Platform and/or offer a service substantially similar to the services offered by Watergeeks in the territory of Canada.
13.2 Discrimination, Harassment and Abusive Conduct
Watergeeks maintains a zero-tolerance policy regarding all forms of discrimination, harassment, or abuse. Users may not refuse to transact with Other Users based on a person’s race, religion, national origin, disability, sexual orientation, sex, marital status, gender identity, age or any other characteristic protected under applicable federal or provincial law.
All reports of discrimination, harassment or abusive conduct are taken very seriously and may result in permanent loss of access to the Watergeeks Platform.
13.3 Fraud and Misrepresentation
Watergeeks expects all Users to present themselves truthfully and accurately and may permanently deactivate any account associated with fraudulent activity. All information you provided must be true and accurate. User agrees to provide Watergeeks with accurate and complete information where required and to promptly update that information as it changes. Watergeeks may verify information provided by or about the User. If requested, User must assist Watergeeks in the verification process. Users posting Item Offers or Item Bids must fully disclose context and information that is relevant and critical to Other Users’ ability to successfully submit a corresponding Item Bid or Item Offer, with the objective of concluding a sale and purchase Agreement.
Users must have legal and beneficial ownership of, and all rights and interest in, any Item or other material in connection therewith. Information in connection with Items or any Agreement must not include any misrepresentation or fraudulent data. Users are required to disclose information that may be reasonably required by an Other User in connection with any Item or Agreement, including but not limited to the origin, use, defects and mechanical and structural condition of the Item, the User’s capacity to pay or the method of delivery in connection with any Agreement.
You may not assign these Terms or any of your rights or obligations hereunder without Watergeeks’ prior written consent. Watergeeks may freely assign these Terms. Any attempted assignment or transfer in violation of this Section 11.4 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.
13.5 Entire Agreement
These Terms and the Schedules attached hereto set forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
13.6 Governing Law
The validity, interpretation and performance of these Terms shall be construed in accordance with and governed by the laws of the Province of Québec and federal laws applicable therein without regard to conflict of law rules that would direct application of the laws of another jurisdiction.
13.7 Notices; Consent to Electronic Notice
You consent to the use of electronic means to deliver any notices pursuant to these Terms. Notices will be given: (a) by Watergeeks via email (in each case to the email address that you provide when registering your account); (b) a reasonably prominent posting on the Watergeeks Platform; or (c) by you via email to the address provided by Watergeeks and as it may change from time to time.
13.8 No Waiver
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.
Last updated January 2020.