TERMS AND CONDITIONS OF USE
Last Update: [September 20th, 2016]
Please read these terms and conditions of use as set out below (the “Terms”) carefully before using this web site (the “Site”). These Terms govern your access to and use of this Site, including the messages, information, data, text, software, images and other content that make up this site (the “Content,” which content is part of this Site). These Terms exempt Fanatik Baits (“Fanatik,” “we,” or “us”) and others from liability and/or limit our and their liability and contain other important provisions that apply to your use of this site.
Your use of this Site is conditional on your acceptance of these Terms. By visiting or using this Site you agree on your own behalf, and on behalf of any organization on whose behalf you may act (collectively referred to herein as “you”), to accept and abide by these Terms for each use of and each visit to this Site. You also agree to comply with our Privacy Statement.
If you do not agree to abide by these Terms, you cannot use this Site. You agree to have these Terms and any related information made available to you, and to otherwise have communications between you and us occur, electronically. You may also be subject to additional terms and conditions applicable to certain services and which are incorporated by reference into these Terms.
We have the right, in our sole discretion, to add to, remove, modify or otherwise change any part of these Terms, in whole or in part, at any time. If we exercise this right the “Last Update” notice at the top of this document shall be amended to reflect the last date of such changes. Changes will be effective as of the date the changes to these Terms are posted to this Site. It is your responsibility to check these Terms each time you access this Site to determine whether any changes have been made, including by checking the date of the “Last Update” at the top of these Terms. If any change to these Terms is not acceptable to you, you must discontinue your use of this Site immediately. Your continued use of this Site after any such changes are posted will constitute acceptance of those changes. These Terms apply exclusively to your use of this Site and do not alter the terms or conditions of any other agreement you may have with us.
We may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of this Site, including: (i) changing the availability of, restricting access to, or imposing limits on any or all features or services on, or links to, this Site; (ii) removing, adding, modifying or otherwise changing any fees or charges arising out of use of this Site or any features of this Site; and (iii) removing, adding, modifying or otherwise changing any Content on this Site. We reserve the right, in our sole discretion, to correct any errors or omissions in any portion of this Site at any time without notice, but confirm that we have no duty to do so.
You must be 18 years of age or older and of at least the age of majority in the jurisdiction in which you reside as of the time you register with us. You must be legally entitled to rent any property that you list on this Site.
2. Limited Licenses
Subject to these terms, you are granted a non-exclusive, non-transferable, non-sub-licensable, revocable, limited right and license to use this Site, including the Content therein accessible through this Site, solely for informational purposes and solely for your own personal use.
You may not, nor may you cause or assist another to:
(a) modify, reverse engineer, decompile, create derivative works from, or disassemble this Site for any reason whatsoever, including for the purpose of creating competitive products or services;
(b) resell any Content (including Postings, as defined below);
(c) include any Content in or with any product that you create or distribute;
(d) copy any Content onto your own or any other web site or into a database or mobile application;
(e) use this Site in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse, this Site or any other services, system resources, accounts, servers, networks, affiliated or linked sites connected to or accessible through this Site (including without limitation uploading, posting or otherwise transmitting on this Site any computer viruses, trojan horses, worms or other files or computer programs which are potentially harmful, disruptive or destructive or that may impose an unreasonable or disproportionately large load on this Site’s infrastructure);
(f) use any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from this Site or the Content in whole or in part;
(g) use this Site for commercial purposes or activities (other than the renting of property) including without limitation:
(i) selling or offering to sell any goods or services;
(ii) soliciting for advertisers or sponsors;
(iii) conducting contests, gaming or gambling or offering prizes, awards or any other incentives to any person;
(iv) displaying advertising or sponsorship banners, including those generated by banner or link exchange services;
(v) soliciting for donations; or
(vi) sending unauthorized or unsolicited junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
(h) use this Site in any manner that may dilute or depreciate our name or reputation, our Marks (as defined below) or our affiliates or associates; or
(i) interfere with any other persons’ use and enjoyment of this Site or of the Internet generally.
3. Membership and Accounts
We offer two levels of users, users who are seeking a Customer (as defined below) to . purchase fishing equipment (“Customers”) and an individual user seeking to sell fishing equipment (“Fanatik”). In these Terms, “Postings” refer to the text, images, comments, or other information posted by a Customer and/or shared by a Customer through this Site including, but not limited to, product postings.
(a) For Customers:
(i) You must register as a member by providing your real name, password, and valid email address. You must provide complete and accurate information to us and notify us if your information changes.
(ii) You are responsible for all activity that occurs under your account, including any activity by unauthorized users and the content of any profiles you create and/or share. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you become aware of an unauthorized access to your account, you must change your password and notify us immediately. You agree to notify us promptly of any unauthorized use of your password and you will remain liable for any use of this Site to the extent permitted by law.
(iii) You must not use this Site in any manner that is unlawful (including by accessing this Site from any location where such access may be illegal or prohibited), unethical, indecent, offensive, defamatory, derogatory, fraudulent, deceptive, harmful, abusive, threatening, vulgar, profane, pornographic, obscene, sexually explicit, sexist, racist, hateful, offensive, harassing, invasive of the privacy rights of others (this includes the posting of any materials that depict, encourage, indicate, advocate or tend to incite any such conduct), or is otherwise objectionable or which does not respect the legal rights and interests of others.
(iv) Equipment and Charges
You will provide all hardware required to access and use this Site and agree to be responsible for all telephone, data and other charges necessary to access this Site.
(A) You represent that you have the authority to enter into these Terms on behalf of your company, Customer or other person on whose behalf you may be entering into these Terms (“Organization”).
(B) You agree, and represent that you have the right to agree, to have the name and logo of your Organization listed on this Site.
(C) Your use of this Site to engage a Customer is contingent upon your payment of fees. The fees are set out at, as may be amended from time to time (the “Customer Fee Statement”). Please note that prices and charges associated with this Site are set out in Canadian dollars.
(D) Fanatik (or a third party payroll processor on our behalf) will invoice you for all fees due with respect to the listing of products on this Site (the “Fanatik Fee”). If you use our third party payroll processor, we will also add any processing fee charged to Fanatik by such third party payroll processor.
(F) You are responsible for and agree to pay promptly, all charges to your account, including applicable taxes on use by you or anyone you allow to use your account and password to access this Site. You agree and accept responsibility for keeping all your account information current, including address, payment information, telephone number, and email address.
(vi) Rights and Responsibilities
(A) You agree that Fanatik has no control and assumes no responsibility regarding a Customer’s obligation to your Organization as a result of using this Site.
4. Proprietary Rights
This Site is protected by Canadian copyright laws and treaty provisions. Any unauthorized copying, redistribution, reproduction or modification of this Site (including any element of the Content) by any person may be a violation of trade-mark and/or copyright laws and could subject such person to legal action. You agree to comply with all copyright laws worldwide in your use of this Site and to prevent any unauthorized copying, redistribution, reproduction or modification of this Site or any of the Content.
Certain names, graphics, logos, icons, designs, words, titles and phrases on this Site, including without limitation “Fanatik,” constitute trade-marks, trade names, trade dress and associated products and services of Fanatik or its affiliates (the “Marks”) or constitute trade-marks, trade names, trade dress and associated products and services of Fanatik suppliers or other third parties (the “Third Party Marks”) and are protected in Canada and internationally and their display on this Site does not convey or create any licence or other rights in the Marks or the Third Party Marks. Any use of the Marks or the Third Party Marks, in whole or in part, without prior written authorization of Fanatik or such third party, as applicable, is strictly prohibited.
5. Linked Sites
Certain links on this Site or in Postings made or shared through this Site may take you to other web sites that are not owned or operated by Fanatik. Fanatik provides these links only as a convenience. Fanatik is not responsible for the content of any such linked web sites. Fanatik makes no representation or warranty regarding, and does not endorse, such linked web sites, the information or other content appearing thereon or any of the products or services available on or through such web sites. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. We welcome you to link to this Site. However, you agree that if you link to this Site your website shall not (a) alter the visual presentation of this Site; (b) imply that Fanatik is endorsing you or any other person, or your or such other person’s products or services; (c) imply an affiliation between you or any other person, or your or such other person’s products or services, and Fanatik without the prior written consent of Fanatik; (d) misrepresent the relationship of you or any other person with Fanatik or present false, misleading or otherwise damaging information or impressions about Fanatik or any of its products or services; or (e) contain materials that may be illegal or interpreted as distasteful, harmful, offensive, or inaccurate.
You acknowledge and agree that in no event will Fanatik provide any form of remuneration for any links you may make to this Site or any Fanatik products. Any remuneration or reward provided in connection with a Posting shall be the subject to the terms set out in the terms associated with that particular campaign and will be for the account of the Customer. In no event will Fanatik be liable for any such remuneration or reward.
6. Privacy Statement
Any personal information which Fanatik collects via this Site is subject to the Fanatik Privacy Statement, which is incorporated by reference into these Terms.
When you use our mobile applications or interact with this Site, you agree that information about you and your use of this Site, including but not limited to, the type of device, your mobile carrier, your internet access provider, your physical location, and/or web pages containing plugins that load in your browser may be communicated to us.
7. User Communications
Any non-identifiable information gathered by us through your use of this Site may be used by us for our own marketing, promotional and product development purposes and more specifically may be stored in a database and used by us to identify, customize and personalize user access, and assess utilization of this Site. Such information may be shared with our affiliates, suppliers, licensors, partners and clients in furtherance of the forgoing purposes.
8. User Submissions (solicited and unsolicited)
(a) Subject to any applicable law and the requirements of our Privacy Statement:
(i) We do not wish to obtain unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved products, goods, services or technologies, product enhancements, processes, materials, marketing plans, or new product names. Accordingly, please do not send any unsolicited ideas, suggestions or other materials ("Submissions") to us.
(ii) Any communications sent by you to us via this Site or otherwise, including Submissions, whether solicited by us or otherwise, are on a non-confidential basis (other than personal information which is covered under our Privacy Statement), and we are free to use and disclose the content of any such communication, including without limitation any ideas, inventions, concepts, techniques or know-how disclosed therein, for any purpose including without limitation developing, manufacturing and/or marketing goods and services. You agree to not assert any ownership right of any kind in such communications (including without limitation copyright, trade-mark, patent, trade secret, unfair competition, moral rights, or implied contract) and you hereby waive such moral rights in favour of Fanatik and its affiliates, licensees, successors and assignees. You also acknowledge that you have no right to receive any financial or other consideration in connection with such communication.
(b) We are not obliged to monitor, screen, police or edit your use of this Site, including Postings you or others may make to this Site, although we may choose to do so in our sole discretion. We will respond as we consider appropriate, in our sole discretion, if we become aware of any inappropriate uses of this Site, including without limitation use that constitute copyright infringement.
(c) Users of this Site may be permitted to create, submit, or share Postings to this Site. In submitting any Postings, you agree:
(i) you are solely responsible for your Postings and any other actions and communications undertaken or transmitted in the course of your usage of this Site, and that you will comply with all laws that apply or may apply to your use of or activities on this Site. Fanatik may investigate occurrences which may involve violations of such laws and co-operate with law enforcement authorities in prosecuting users who are involved in such violations. We reserve the right at all times to disclose any information (including without limitation your personal information or your identity) regarding your usage of this Site (including any perceived violations of applicable law), in each case as may be permitted by or required to satisfy applicable law.
(ii) not to post any Postings that may: (A) harm, threaten, harass, abuse or intimidate any other person in any way; (B) involve materials that constitute, depict, promote, encourage, indicate, advocate or tend to incite the commission of a crime or other unlawful activities, violence, hatred, cruelty or discrimination against any individuals or groups, for any reason, or any act of cruelty to animals; (C) conceal or misrepresent the author or origin of any messages or communication, or that impersonate any person, or that falsely state or otherwise misrepresent an affiliation with any other person, including Fanatik; or (D) disclose any private or personal information about any person without that person’s permission.
(d) Comments or opinions expressed in each Posting are those of their respective contributors, and do not represent the views of Fanatik. Fanatik has no obligation to screen or censor any of the Postings, although as described above Fanatik reserves the right to do so from time to time. As a result, Fanatik has no control over, and disclaims any responsibility and liability for, the content, truth, accuracy, or completeness of any Posting, or the quality, safety or legality of the subject of the Posting. Each person making a Posting is solely responsible for the form, content and accuracy of such Posting. In addition, because user authentication on the Internet is difficult, Fanatik cannot and does not confirm that each user is who they claim to be. As a result, you acknowledge there may be, and you assume all, risks associated with dealing with other users with whom you come in contact through this Site, including without limitation risk of harm in dealing with strangers, foreign nationals, underage persons or people acting under false pretenses.
We make no representation or warranty and there are no conditions of any kind regarding this Site, the Content or Postings, including without limitation any representation, warranty or condition regarding the accuracy, reliability, currency, or completeness of the Content or Postings, including that they are appropriate or available for use at any locations outside Canada. Accessing the Content or Postings from locations where the Content or Postings are illegal is prohibited. You are advised that accessing the Site from locations where its contents are illegal is prohibited. Any diversion of the services and/or any Content obtained from or through the services contrary to Canadian is also prohibited. If you access the Site from locations other than Canada, then you do so on your own initiative and you are solely responsible for compliance with all applicable laws, including export and import regulations and intellectual property laws of other countries.
You acknowledge and agree that this Site (including without limitation the Content or Postings) and all Customers are provided on an “AS IS” basis and that any use of or reliance on this Site and your engagement of any Customers shall be at your sole risk.
We do not screen or censor the Postings, including any Customer profiles or the Customers. We are not involved in, not party to, and do not control, the actual engagement between Customers and Customers. You agree that we are not responsible for the quality, safety, and condition of the properties offered or profiles posted, the ability of Customers to rent properties to Customers or the ability or suitability of the properties for such opportunities.
FANATIK AND ITS AFFILIATES DO NOT MAKE ANY, AND EXPRESSLY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THIS SITE (INCLUDING THE CONTENT OR POSTINGS) OR ANY CUSTOMERS. FOR GREATER CERTAINTY, FANATIK DOES NOT WARRANT THAT THIS SITE WILL (i) MEET YOUR REQUIREMENTS, (ii) BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE OR ANY RELATED EQUIPMENT, (iii) BE RELIABLE, ACCURATE, AUTHENTIC, CURRENT OR COMPLETE, (iv) CONTINUE TO OPERATE, (v) OPERATE WITHOUT INTERRUPTIONS, OR (vi) BE ERROR-FREE.
10. Limitation of Liability
YOU AGREE THAT IN NO EVENT WILL FANATIK OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY “FANATIK REPRESENTATIVES”) HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH THIS SITE, THE CONTENT, THE POSTINGS OR ANY CUSTOMER FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE BASIS, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOSS OF INFORMATION OR DATA, LOSS OF PROFIT, LOSS OF SAVINGS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC LOSS), ARISING FROM OR IN CONNECTION WITH OR RELATING TO THE USE OF OR ACCESS TO, OR ANY INCONVENIENCE, DELAY OR LOSS OF USE OF OR ACCESS TO, THIS SITE, THE CONTENT, THE POSTINGS OR ANY CONTENT OF ANY LINKED WEB SITE, OR FAILURE OF SUCH WEB SITES (INCLUDING WITHOUT LIMITATION ANY DAMAGES SUFFERED AS A RESULT OF OMISSIONS OR INACCURACIES IN SUCH WEB SITES OR CONTENT OR POSTINGS, OR THE TRANSMISSION OF CONFIDENTIAL OR SENSITIVE INFORMATION TO OR FROM SUCH WEB SITES), EVEN IF WE OR ANY FANATIK REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF SUCH DAMAGE OR LOSS WAS FORESEEABLE. IN NO EVENT WILL FANATIK BE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY CUSTOMER, OR FOR ANY LOSS YOU MAY SUFFER AS A RESULT OF ENGAGING SUCH CUSTOMER.
YOU ACKNOWLEDGE THAT FANATIK ACTS AS TRUSTEE FOR THE FANATIK REPRESENTATIVES WITH RESPECT TO ALL RIGHTS CONTEMPLATED HEREUNDER ARISING IN FAVOUR OF A FANATIK REPRESENTATIVE. FANATIK AGREES TO ACCEPT SUCH TRUST AND HOLD AND ENFORCE SUCH RIGHTS ON BEHALF OF EACH FANATIK REPRESENTATIVE.
YOU WILL INDEMNIFY AND HOLD US AND THE FANATIK REPRESENTATIVES (THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIMS BROUGHT BY THIRD PARTIES ARISING OUT OF YOUR USE OF THIS SITE AND YOUR USE OF THE SERVICE, AND ANY BREACH OF THESE TERMS AND CONDITIONS BY YOU, INCLUDING ANY USE OF THE CONTENT OR POSTINGS OTHER THAN AS EXPRESSLY AUTHORIZED IN THE TERMS AND CONDITIONS. YOU AGREE THAT THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY IN CONNECTION WITH ANY SUCH BREACH OR UNAUTHORIZED USE OR MODIFICATION, AND AGREE TO INDEMNIFY AGAINST ANY AND ALL RESULTING LOSS, DAMAGES, JUDGMENTS, AWARDS, COSTS, EXPENSES, AND LAWYERS’ FEES OF THE INDEMNIFIED PARTIES IN CONNECTION THEREWITH.
12. Choice of law
You agree that all matters relating to the access to, or use of, this Site shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to its conflict of laws principles, and that you will comply with all such applicable laws.
Any dispute between us and you or any other person arising from, in connection with or relating to this Site, these Terms, any transaction through this Site or any related matters must be resolved before the Courts of the Province of Ontario, Canada sitting in the City of Toronto, and you hereby irrevocably submit and attorn to the exclusive jurisdiction of those Courts in respect of any such dispute.
13. Termination of Use
If you breach any provision of these Terms, then you may no longer use this Site. We, in our sole discretion, shall determine whether these Terms have been violated. You agree that we may, in our sole discretion, terminate or suspend your account with or without notice.
Upon termination or suspension of your account, regardless of the reasons therefore, your right to use the Site immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this Site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
These Terms constitute the entire agreement between us and you with respect to the subject matter hereof, and supersede all communications, representations or agreements, either oral or written, between us or our affiliates and you with respect to this subject matter. Notwithstanding the foregoing, if you and Fanatik agree to a written services agreement and such agreement expressly overrides these Terms, the provisions of such agreement will prevail. If for any reason a court of competent jurisdiction finds any provision of these Terms or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms, and the remainder of these Terms shall continue in full force and effect.
No waiver of or consent to depart from the requirements of any provision of these Terms will be binding unless it is in writing and signed by Fanatik. You and Fanatik are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms.
The provisions of these Terms will enure to the benefit of and be binding upon you and Fanatik and its respective successors and assigns, and, if you are contracting as an individual, your heirs, executors, administrators and personal representatives. You may not assign these Terms or your rights and obligations under these Terms without our express prior written consent, which may be withheld in our sole discretion. We may assign these Terms and our respective rights and obligations under these Terms without your consent.
All notices to us shall be in writing and shall be made via email. Notices to us must be sent to the attention of our customer service representatives at email@example.com . Notices to you may be sent, in our sole discretion, to the address or email address supplied by you as part of your membership. In addition, we may broadcast notices or messages through this Site to inform you of changes to this Site or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
The parties have required that this agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y attachent soient rédigés en langue anglaise.