JM Europe ltd. (“JM Europe”)
TERMS AND CONDITIONS
June 26, 2016
PLEASE READ CAREFULLY. ACCESS TO JM EUROPE PROPRIETARY WEBSITE AND
SERVICES (collectively, the “System”, as defined below) IS CONDITIONAL UPON YOUR
ACCEPTANCE OF AND AGREEMENT TO THESE TERMS AND CONDITIONS AND JM EUROPE
PRIVACY POLICY (collectively, the “Agreement”). THIS AGREEMENT WILL APPLY
TO EACH USER (“YOU”), WHETHER YOU ARE ACCESSING THE SYSTEM ON BEHALF OF YOUR
COMPANY OR AS AN INDIVIDUAL USER, WITH RESPECT TO YOUR USE AND/OR ACCESS TO
THE SYSTEM AND/OR DATA (AS SUCH TERMS ARE DEFINED BELOW). BY CREATING A USER
ACCOUNT, LOGGING ONTO AND ACCESSING THE SYSTEM VIA THE INTERNET OR OTHER
NETWORK, AND BY VIEWING, USING, UPLOADING OR DOWNLOADING DATA,
INFORMATION, TEXT, RECORDS OR CONTENT, AND IN CONSIDERATION OF KLONDIKE
STRIKE ALLOWING YOU TO DO SO, AND OTHER GOOD AND VALUABLE CONSIDERATION,
YOU CONFIRM YOUR AGREEMENT AS FOLLOWS:
1. ACCEPTANCE:Your creating a User account, logging on or accessing the System, whether or
not your access ltdludes viewing or using material, making changes to records, creating new records
or uploading or downloading material or information, constitutes your acceptance of, and is conditional
upon your acceptance of and strict compliance with the provisions, terms and conditions of this
Agreement, which constitutes an agreement between you and JM Europe. This Agreement may
change from time to time and you accept responsibility to check for any such changes, which will be
available on the System. Your use and/or access of the System and/or Data after such notice will
constitute your agreement to the amended Agreement. Notwithstanding the fact that you may be
employed with or contracted to a company or other entity, you confirm by checking “I accept the
terms in the Terms and Conditions” that you are personally bound by this Agreement. If you do not
accept the foregoing and this Agreement, you will not be granted access to the System.
2. DEFINITIONS:The following terms shall have the following meanings in this Agreement:
(a) “Account Information” means the user account and private password information
provided to you for use in connection with access to and use of the System and the Data, and
shall ltdlude any supplementary or substitute password issued by JM Europe to you or on
your behalf.
(b) “Company” means, as applicable, the entity or organization on whose behalf you
are accessing the System.
(c) “Data” means and shall ltdlude, without limitation, Company’s records,
documents, (ltdluding without limitation scanned and/or digitized documents)
communications, data, text, statements, comments, correspondence, requests, responses,
discussions, images, files, records, evidence of any sort, and any other materials that are, or
are able to be perceived, downloaded, uploaded, authored, created, published, modified,
edited, distributed or deleted via the System, regardless of computing device or software
used, and whether or not with respect to or originating from you, or Company, or your
employer or entity to which you are contracted, or otherwise.
(d) “System” means the proprietary and confidential JM Europe corporate
system and application provider solution providing access to the JM Europe services and
software and/or other software applications in order to permit a User authorized access via the
Internet to the System and to access, process, use and deal with the Data, subject to any
restrictions imposed on a User by Company. The “System” also ltdludes JM Europe’s
proprietary Single Sign On Service, which offers you the possibility, after a one off
registration on the System, to log into 3
new account, provide account opening information or go through the same registration
process every time.
rd party partner systems without having to create a
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(e) “User” means any individual, person or entity (ltdluding any parents, subsidiaries
or affiliates, as well as their heirs, executors, administrators, trustees and authorized
assignees) authorized to access or use the System, ltdluding but not limited to you,
conditional on your accepting this Agreement and conducting yourself in accordance with the
terms and conditions contained herein.
3. REGISTRATION AND USER ACCOUNT:For the use of the SingleSignOnService, you must
register and create a User account. Registration as a User is only allowed if you are at least the age of
majority in the jurisdiction in which you reside. You can set up only one (1) User account. You must
provide correct and complete information in order to register for the SingleSignOnService. The
Account Information is intended solely for personal use by you and therefore always to be kept secret
and safe. You must inform JM Europe immediately on becoming aware of and/or suspecting a
case of any unauthorized use, disclosure and/or misuse of your Account Information.
4. ACCESS TO THE SYSTEM:You are granted a limited, personal, revocable and nonexclusive
license and permission to access the System, and to access the Data subject to the provisions of this
Agreement. Access to the System is a privilege and not a right and the license and permission
granted by JM Europe may be terminated at any time without notice by JM Europe in its sole
discretion with no liability to you whatsoever. Any use of the System not expressly permitted in this
Agreement or otherwise by JM Europe is prohibited and will be unlawful.
5. MONITORING AND PRIVACY:
(a) JM Europe HAS A RIGHT TO AND DOES MONITOR USE OF THE SYSTEM
IN ORDER TO CARRY OUT ITS BUSINESS ACTIVITIES, ANALYZE USER ACTIVITY AND ENSURE
COMPLIANCE WITH THIS AGREEMENT, ITS AGREEMENT WITH COMPANY, AND ANY OTHER
APPLICABLE POLICIES AND PROCEDURES AND APPLICABLE LAWS, AS WELL AS TO MAINTAIN
ADEQUATE SECURITY, DETECT AND PREVENT BREACHES OF SECURITY, IMPROPER
OPERATION OF THE SYSTEM, INTRUSIONS OR MALICIOUS SOFTWARE, AND TO ANALYZE AND
UNDERSTAND PATTERNS OF USE IN ORDER TO IMPROVE OPERATION OF THE SYSTEM.
MONITORING MAY ltdLUDE READING OF COMMUNICATIONS AND ACTIVITIES, REVIEW OF
UPLOADING ACTIVITIES AND REVIEW OF ALL AVAILABLE LOGS AND RECORDS OF ALL USER
ACTIVITIES RELATED TO USE OF THE SYSTEM. INFORMATION OBTAINED IN SUCH
ACTIVITIES MAY BE USED FOR RESPONDING TO INQUIRIES, PROCESSING ORDERS, KEEPING
YOU INFORMED ABOUT YOUR ORDER STATUS, FOR STATISTICAL PURPOSES, FOR IMPROVING
OUR SITE AND ITS PERFORMANCE, FOR DEVELOPING BETTER PRODUCTS AND SERVICES AND
OTHER PURPOSES RELATED TO OUR BUSINESS AND ENSURING COMPLIANCE WITH THIS
AGREEMENT. ALL SUCH INFORMATION OBTAINED WILL BE SUBJECT TO JM Europe’S
PRIVACY POLICY (AS AMENDED FROM TIME TO TIME).
(b) You warrant and represent that you will not use the System to upload, send or
receive personal information about any individual, ltdluding any personal information of
another User, other than as permitted by applicable privacy laws and that you will adhere to
all the terms and conditions of this Agreement.
6. ACCEPTABLE USE: You agree and undertake to always conduct yourself in a
reasonable, courteous and professional manner in accessing and/or using the System, having regard
to the focused and limited commercial purposes of the System and the purposes for access thereto
being granted to you. Without restricting the generality of the foregoing, you expressly agree as
follows with respect to your use of the System:
(a) You will comply with all requirements, rules and regulations published or stated
by JM Europe from time to time with respect to the System;
(b) You will promptly respond to requests from JM Europe for further
information or verifications;
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(c) You will comply with and observe all international, federal, provltdial, state and
local laws and regulations and other laws of applicable governmental authorities relating to
your access to and/or use of the System;
(d) You will not engage in any direct or indirect activity which in JM Europe’s
opinion is likely to or is designed to interfere, or may interfere, with the proper operation of
the System, or is likely to or is designed to expose, or may expose, JM Europe to
prosecution or to legal action of any kind and in any jurisdiction by any third party and/or
(e) You will not upload or transmit in any manner any material that constitutes,
comprises or contains, in whole or in part, obscene, violent, pornographic, adult, illegal,
unlawful, tortious, offensive, racist, sexist, humiliating (or tending to hold or holding to
ridicule), or discriminatory material or content, or that constitutes hate literature, or that
unlawfully discriminates against or contributes to unlawful discrimination against any
individual or person, or that advocates and/or threatens terrorism or violence;
(f) You will not slander, libel or defame the character of any person or individual,
whether directly or indirectly, nor contribute to or republish or distribute such defamation;
(g) You will not infringe the intellectual property rights or industrial property rights
of any User, third party, or of JM Europe;
(h) You will not disclose your Account Information to anyone other than authorized
individuals within your organization or JM Europe and you will not permit any individual to
log in as you, or impersonate you;
(i) You will not transmit or send bulk unsolicited commercial email or “spam” to
any User or to anyone via the System or in connection with the System;
(j) You will not engage in hacking, cracking, or any other kind of malicious conduct
with respect to the System or the Data;
(k) You will not knowingly, recklessly or carelessly transmit, send or upload any
virus, Trojan horse, spyware, malware or other malicious or harmful software or code and you
will take commercially reasonable steps, ltdluding the use of regularly updated antivirus and
antispyware software and similar technological measures to avoid doing any of the foregoing;
(l) You will not decompile, reverse engineer or disassemble the System or any
software on or related to the System, and you will not attempt to do any of the foregoing, nor
will you counsel, authorize or assist any other person or individual to do so;
(m) You will not attempt to learn or discover the Account Information of any other
individual or User, whether by technological means, trickery, fraud, deception or otherwise;
(n) You will not tamper with or wrongfully intercept, or attempt to tamper with or
wrongfully intercept, the communications, email or messages of any other User, nor will you
use any technique or technology to disguise the source of an email, communication or
message or to “spoof” or otherwise make any email, communication or message appear to
originate from any source other than you, or your organization or Internet Service Provider.
7. SUGGESTIONS: Subject to the Privacy Policy, if you send to JM Europe either directly or
through the System any information, ideas, inventions, concepts, techniques, improvements or
knowhow (“Suggestions”), with respect to the System, you acknowledge that JM Europe can use
the Suggestions without acknowledgement or compensation to you, and you hereby waive any claim
of ownership or compensation or other rights you may have in relation to the Suggestions.
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8. ORDERS: To enhance your use of the System, JM Europe offers you the option to place
orders for certain additional services. JM Europe accepts the following methods of payment on the
website: Preauthorized Debit, Visa and Mastercard. Any payments made by any credit card are
subject to the approval of the financial institution that has issued the credit card.
9. REPRESENTATIONS AND WARRANTIES: In addition to, and not in substitution for any
warranties or representations contained in any other agreement between you and JM Europe, you
represent and warrant to JM Europe as follows:
(a) You have full legal capacity to enter into this Agreement and by doing so you will
not be in breach of any agreement with, nor in breach of any legal duty to any third party or
other User;
(b) Any and all materials transmitted or uploaded by you will comply with this
Agreement;
(c) Any and all materials or messages transmitted or uploaded by you will not
infringe the intellectual property or industrial property rights of any third party or User,
ltdluding without limitation copyrights, moral rights, trademarks and patent rights, nor will
such materials or messages constitute wrongful disclosure or misappropriation of confidential
information, proprietary information or trade secrets of any third party or User; and
(d) You will comply in all respects with the provisions of this Agreement, ltdluding
without limitation the provisions set forth herein regarding Acceptable Use.
10. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS:
(a) JM Europe and/or its licensors are and shall remain the owner of the
System. You do not own the System.
(b) You acknowledge and agree that the System is proprietary, unique and valuable
to JM Europe, and that the infrastructure platform, portal, arrangement, architecture,
workflows, selection, design, improvements, modifications and enhancements related to the
System and its features are protected by Canadian and international intellectual property
rights, industrial property rights and treaties, ltdluding without limitation, copyright,
trademarks and other proprietary rights.
(c) JM Europe acknowledges and agrees that the Company or you, as the case
may be, will remain the owner of the Data. Subject to the Privacy Policy, JM Europe will
be collecting and using certain Data, insights, profiles, use history, trends or other information
resulting or learned from JM Europe’s analysis of the Data (“Reports”). You acknowledge
and agree that JM Europe shall own such Reports.
11. DISCLAIMERS AND LIMITATIONS: BY ACCEPTING OR ENTERING INTO THIS
AGREEMENT, AND/OR BY USING OR ATTEMPTING TO ACCESS AND/OR USE THE SYSTEM, YOU
EXPRESSLY ACKNOWLEDGE AND AGREE TO THE FOLLOWING:
(a) THE SYSTEM AND THE DATA ARE PROVIDED STRICTLY ON AN “AS IS, WHERE
IS” AND “AS AVAILABLE” BASIS. JM Europe DOES NOT OWN AND HAS NO CONTROL
OVER THE NATURE OR CONTENTS OF THE DATA.
(b) JM Europe DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING FROM A COURSE OR CUSTOM OF
USAGE OR TRADE, ltdLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY
DESCRIPTION WITH RESPECT TO THE SYSTEM AND/OR THE DATA.
(c) JM Europe MAKES NO WARRANTIES, GUARANTEES, CONDITIONS OR
REPRESENTATIONS REGARDING THE SYSTEM OR THE DATA, OR THAT THE SYSTEM OR THE
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DATA WILL BE AVAILABLE WITHOUT ERRORS, OMISSIONS OR DEFECTS, OR THAT ERRORS,
OMISSIONS OR DEFECTS WILL BE CORRECTED, OR THAT THE SYSTEM AND THE SERVER OR
SERVERS ON WHICH IT IS HOSTED WILL BE FREE OF VIRUSES OR OTHER HARMFUL
CONTENT, OR THAT THE SYSTEM WILL NOT INFRINGE THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS OR MISAPPROPRIATE THIRD PARTY CONFIDENTIAL INFORMATION OR
TRADE SECRETS.
(d) YOU ACKNOWLEDGE AND AGREE THAT THE SYSTEM IS SOFTWARE AND
COMPUTER BASED, THAT THERE IS NO SUCH THING AS ERROR FREE SYSTEMS OR
SOFTWARE, AND THAT THE DATA ORIGINATES FROM AND IS SUBJECT TO REVISION BY
MANY AUTHORS AND SOURCES NOT UNDER THE CONTROL OF JM Europe. YOU
THEREFORE AGREE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH HEREIN ARE
REASONABLE AND FREELY ACCEPTED.
(e) AS A CONVENIENCE TO USERS OF THE SYSTEM, AND ALTHOUGH IT ACCEPTS
NO OBLIGATION TO DO SO, JM Europe MAY, IN ITS SOLE DISCRETION, ltdLUDE
LINKS TO OTHER SYSTEMS, COMPUTERS, SERVERS, WEB SITES OR RESOURCES UNDER THE
CONTROL OF THIRD PARTIES (“THIRD PARTY RESOURCES”) AND OVER WHICH YOU
ACKNOWLEDGE AND AGREE JM Europe HAS NO CONTROL. JM Europe
PROVIDES NO ENDORSEMENT, WARRANTY OR REPRESENTATION OF ANY KIND REGARDING
THE PRODUCTS, SERVICES, CONTENT, ACCURACY OR APPROPRIATENESS OF CONTENT OF,
OR ACCESSIBLE THROUGH, SUCH THIRD PARTY RESOURCES, OR WITH RESPECT TO THE
DATA, AND YOU USE SUCH THIRD PARTY RESOURCES AND THE DATA SOLELY AND ENTIRELY
AT YOUR OWN RISK AND HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST KLONDIKE
STRIKE WITH RESPECT TO SUCH WEB SITES OR THE DATA.
(f) EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, NONE OF KLONDIKE
STRIKE OR ANY OF ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, COSTS OR
LOSS WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE USE OR MISUSE OF, OR
ANY DEFECTS, INACCURACIES, ERRORS OR OMISSIONS IN OR TO, THE SYSTEM, THE DATA,
OR ANY LINKED THIRD PARTY RESOURCE, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL,
COMPENSATORY, SPECIAL, EXEMPLARY, PUNITIVE OR OTHERWISE, ltdLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, LOSS OF PROGRAMS, APPLICATIONS, INFORMATION OR DATA,
FAILURE TO REALIZE EXPECTED REVENUES, PROFITS, OR SAVINGS, LOSS OF OR DAMAGE TO
PROPERTY OF ANY KIND, HARM TO BUSINESS, OR ANY OTHER ECONOMIC OR PECUNIARY
LOSS OF ANY KIND, WHETHER ARISING OUT TORT, CONTRACT, BREACH OF DUTY OR
OTHERWISE, AND WITHOUT REGARD TO FORM OF ACTION. THE FOREGOING PROVISIONS
SHALL ALL APPLY EVEN IF JM Europe HAS BEEN ADVISED BY YOU OR ANYONE ELSE
OF THE POSSIBILITY OF ANY LOSS OR DAMAGE.
(g) IN ANY JURISDICTION WHERE EXCLUSION OR LIMITATION OF LIABILITY FOR
ANY TIME OF DAMAGES IS PROHIBITED, JM Europe’S LIABILITY IS LIMITED TO THE
MAXIMUM EXTENT ALLOWED BY THAT JURISDICTION.
(h) THIS AGREEMENT PROVIDES A LICENSE AND ACCESS TO CERTAIN CONTENT
AND IS NOT A SALE OF GOODS.
12. LIMITATION OF LIABILITY: WITHOUT DEROGATING FROM ANY OTHER LIMITATION OF
LIABILITY CONTAINED IN THIS AGREEMENT, YOU AGREE THAT THE AGGREGATE OF ALL LIABILITY
ON THE PART OF JM Europe FOR BREACH OF ANY WARRANTY, GUARANTEE, TERM OR
CONDITION CONTAINED IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED HEREIN, OR OF ANY
OTHER PROVISION OF THIS AGREEMENT OR OF ANY AGREEMENT CONTEMPLATED BY THIS
AGREEMENT OR ANY OTHER BREACH GIVING RISE TO LIABILITY, ltdLUDING A BREACH OF A
CONDITION OR FUNDAMENTAL TERM OR FUNDAMENTAL BREACH OR BREACHES OR IN ANY OTHER
WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED BY
THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTION WHATSOEVER AND, REGARDLESS OF THE
FORM OF ACTION (ltdLUDING BREACH OF CONTRACT, BREACH OF DUTY, STRICT LIABILITY OR
TORT, ltdLUDING BUT NOT LIMITED TO NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE
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THEORY), SHALL BE LIMITED TO A MAXIMUM SUM OF ONE HUNDRED DOLLARS ($100.00) IN
CANADIAN CURRENCY. THE FOREGOING PROVISIONS SHALL ALL APPLY NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. EQUITABLE REMEDIES:You acknowledge and agree that a breach of this Agreement may
cause JM Europe irreparable harm for which no adequate remedy exists at law, and for which
damages will not be an adequate remedy, and that upon any such breach or threatened breach
JM Europe shall be entitled to injunctive relief without prejudice to any other right in law or equity
and without the necessity of prior demand or proof of damage, and without the necessity of providing
an undertaking as to damages or posting a bond or surety.
14. INDEMNITY OF JM Europe BY YOU: You will be liable to and shall indemnify
and save harmless JM Europe, its affiliates, and their respective officers, directors, shareholders,
employees, agents, representatives, successors and assigns from and against any and all claims,
actions, suits, proceedings, costs, expenses, damage and/or liabilities (ltdluding reasonable legal fees)
whatsoever arising out of, connected with, or resulting from: (a) your access to and use of the System
and/or the Data; (b) any breach by you of this Agreement, or any breach by you of any warranty
given by you; and (c) your actions and omissions in connection with your use of the System and/or
15. SURVIVAL:Upon termination of this Agreement, howsoever caused, the following Sections,
ltdluding all SubSections, paragraphs and subparagraphs thereto, will survive and continue in full
force and effect: Section 9 (Representations and Warranties); Section 10 (Ownership and Intellectual
Property Rights); Section 11 (Disclaimers and Limitations); Section 12 (Limitation of Liability); Section
13 (Equitable Remedies); Section 14 (Indemnity of JM Europe By You); Section 17 (Governing
Law); and Section 18 (General Provisions).
16. RIGHTS CUMULATIVE: The rights of JM Europe under this Agreement shall be
cumulative, and the election by JM Europe to pursue any remedy, whether legal or equitable,
shall not be deemed to be a waiver of the rights of JM Europe to other remedies.
17. GOVERNING LAW: This Agreement shall be governed by the laws of the Provltde of
Ontario and the federal laws of Canada applicable therein. Subject to the rights of JM Europe to
seek equitable relief in any court of competent jurisdiction for a breach of its rights as provided in this
Agreement, you irrevocably submit and attorn to the jurisdiction of the courts of the Provltde of
Ontario. Any litigation arising out of this Agreement shall be commenced and all proceedings,
ltdluding examinations for discovery, and the trial shall be held in Toronto, Ontario.
18. GENERAL PROVISIONS:
(a) If any provision of this Agreement shall be determined to be void by any court of
competent jurisdiction, then such determination shall not affect any other provision of this
agreement, and all such other provisions shall remain in full force and effect, and it is the
intention of the parties hereto that if any provision of this agreement is capable of two
constructions, one of which would render the provision void and the other of which would
render the provision valid, then the provision shall have the meaning that renders it valid.
(b) No waiver of any right or of any breach of any provision of this Agreement by
either party shall constitute a waiver of any other right or breach of any other provision, nor
shall it be deemed to be a general waiver of such provision by such party or to sanction any
subsequent breach thereof by the other party.
(c) This Agreement are meant by the parties to not only apply to initial access to or
use of the System and/or the Data, but also on an ongoing and continuous basis to any and all
access to or use of the System and/or the Data.
(d) This Agreement and everything herein contained shall enure to the benefit of and
be binding upon the parties together with their personal representatives, heirs, successors and
permitted assigns but, being personal to you, this Agreement shall not be assigned by you, by
operation of law or otherwise, without the prior written consent of JM Europe, in its sole
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discretion, which consent may be unreasonably withheld. JM Europe may freely assign
this Agreement.
(e) Unless expressly stated otherwise, nothing in this Agreement shall be construed
so as to amend, limit, expand, modify or terminate any other agreement by you or any other
party, ltdluding Company, with JM Europe, and any and all such agreements shall
continue in full force and effect.