FRC Connect Terms of Use
IMPORTANT - PLEASE READ CAREFULLY: This is an agreement between you and Tarion Warranty Corporation ("Tarion"), the private non-profit corporation responsible for administering the Ontario New Home Warranties Plan Act (together with all regulations and amendments to the foregoing, the "Act").
BACKGROUND:
A. Tarion owns and operates the FRC Connect online service (collectively, including the FRC Connect platform and all services, applications, resources and other content, information, text, images, data, code, tools, correspondence and materials available through the frcconnect.tarion.com/frc domain, "FRC Connect").
B. FRC Connect is a self-serve environment for Field Review Consultants and other authorized persons that enables them to, among other things, submit documents and information required under Tarion’s Registrar Bulletin No. 19: Condominium Projects Designs and Field Review Reporting (collectively, the "FRC Connect Activities").
C. You wish to access and use FRC Connect to carry out your FRC Connect Activities.
By using and/or accessing FRC Connect, you signify your agreement to both these Terms of Use and Tarion's Access to Information and Privacy Code (the "Privacy Code") (collectively, the "Use Agreement"). If you do not agree to all the terms and conditions of this Use Agreement, do not use or access FRC Connect in any way. Tarion may, in its sole discretion, modify or revise this Use Agreement in whole or in part at any time by posting the modified or revised version on FRC Connect. It is your responsibility to periodically review the most up-to-date version of this Use Agreement available on FRC Connect and you agree to be bound by all modifications and revisions to this Use Agreement immediately when they are posted.
1. IDENTIFICATION AND AUTHORIZATION. You hereby represent, warrant and covenant that:
(a) the information regarding your identity is true and complete in all materials respects; and
(b) you are responsible for all activities of any user of your FRC Connect account, including (for greater certainty) where such user has gained access to your account through mistake, fraud, theft, hacking or any other criminal or malicious activity.
2. LIMITED PERMITTED USE. Subject to the terms of this Use Agreement, Tarion hereby grants to you a limited, personal, non-transferable, non-exclusive right to access, use and display FRC Connect (including any updates, enhancements or modifications to FRC Connect made available by Tarion to you from time to time on an as-available basis) via the Internet, solely for the purpose of carrying out your FRC Connect Activities (the "Authorized Purpose"). Your right to use FRC Connect is limited to those rights expressly set out in this Use Agreement.
3. RESTRICTIONS ON USE. You shall: (a) not use FRC Connect for any purpose other than the Authorized Purpose or alter, damage or destroy FRC Connect or any data or information contained therein or other component(s) thereof; (b) not reproduce FRC Connect except to download, print and/or store such reasonable copies of the content available on FRC Connect as may be required for the Authorized Purpose; (c) not assign this Use Agreement or rent, sell, publish, distribute, communicate, transfer, lease, export or grant a sublicence to use FRC Connect except as expressly permitted by, and in accordance with, Section 5 or when authorized to do so by Tarion in writing; (d) not modify, translate, reverse engineer, decompile, disassemble or make derivative works of FRC Connect; (e) not use FRC Connect to operate a service bureau, drive traffic to your or any third party website for personal or commercial gain or otherwise use FRC Connect except as authorized herein; (f) use FRC Connect only in accordance with any minimum hardware, software and/or system requirements set out therein; (g) not use FRC Connect for any tortious or unlawful purpose, including accessing any other system or network without authorization or transmitting any material (I) in violation of applicable laws (including copyright and privacy laws), (II) constituting unauthorized use or disclosure of a trade secret or (III) reasonably interpretable as threatening, libelous, offensive, pornographic, profane or obscene; (h) observe all security features on FRC Connect and not disable, bypass, defeat or circumvent (or permit a third party to disable, bypass, defeat or circumvent) any such security features; (i) not submit and/or post any content, information or other materials that contain a virus, Trojan horse, worm, bad link or other harmful or disruptive component or otherwise use FRC Connect in any way that might, in Tarion's sole discretion, subvert or conflict or interfere with the integrity, reputation, security or operation of FRC Connect, any component(s) thereof or the system(s) from which FRC Connect is being made available; (j) not use any robots, bots, spiders, web crawlers, data/text mining software or other automated tools or data gathering or extracting applications to collect data or information other than your information from FRC Connect; (k) provide Tarion with accurate, complete and up-to-date information when applying for access, logging in, or submitting User Submissions (as defined below) to, FRC Connect; (l) not use FRC Connect if you are a minor; (m) comply with all password selection guidelines issued by Tarion from time to time; (n) comply with any direction issued by Tarion to update your FRC Connect password(s); (o) take all reasonable precautions to prevent third parties from using FRC Connect or your name, user ID(s), password(s), email address(es) or domain name(s) (including subdomains thereof) in any way that would constitute a breach of this Use Agreement; and (p) set up and use a form of multi-factor authentication when signing into FRC Connect in addition to your FRC Connect password to authenticate your identity (please see Section 13 below for details on multi-factor authentication). Any evidence of the foregoing: (A) may be disclosed by Tarion to law enforcement authorities; (B) may result in criminal prosecution under the laws of Canada and/or such other jurisdictions as may apply; (C) may cause Tarion to suspend or terminate your use of FRC Connect without notice.
4. USER SUBMISSIONS. FRC Connect permits you and other users to submit and/or post certain data, documents, correspondence, photographs, images, links and other information and materials (collectively, "User Submissions"). You acknowledge that you are responsible for the User Submissions that you submit and/or post on FRC Connect and that you, and not Tarion, have full responsibility for User Submissions, including their legality, reliability, accuracy, completeness, timeliness, appropriateness, originality and copyright. You hereby acknowledge that User Submission may contain personal information and you agree that you will take all reasonable steps to limit the amount of unnecessary personal information that you provide to Tarion.
You hereby grant to Tarion its and their directors, officers, employees, members, agents, advisors, consultants, contractors and users (collectively, "Representatives") a limited, worldwide, perpetual, irrevocable, non-exclusive, royalty-free right to use, disclose, reproduce, display, publish, distribute, communicate, modify, upload, sublicence and create derivative works of any User Submissions, in any medium whatsoever, for the purpose of operating FRC Connect, facilitating the FRC Connect Activities, administering the Act and carrying out Tarion's operational, regulatory and consumer protection activities.
You hereby acknowledge and agree that Tarion is entitled to provide your User Submissions to Vendors and Owners (as those terms are defined in the Act) without notice to you in connection with the FRC Connect Activities. Vendors and Owners are not Representatives of Tarion and Tarion makes no representation or warranty as to the use that Vendors or Owners may make of your User Submissions. You hereby acknowledge that User Submissions proffered by Vendors, Owners or you to third parties (including courts, governmental or regulatory authorities, or tribunals) may become part of the public domain through operation of law or regulation.
You hereby represent, warrant and covenant that: (i) you have the right(s) required to grant the licence granted in this Section 4; (ii) the User Submissions shall be free from defects, viruses, Trojan horses, worms and other harmful or disruptive components; and (iii) the User Submissions shall otherwise comply with the restrictions in Section 3 above. You hereby irrevocably and unconditionally waive in favour of Tarion and its successors in interest all moral rights (including the right to attribution of authorship and to restrain any distortion of the work) in any User Submissions. Notwithstanding any other term or condition of this Use Agreement, Tarion shall have the right to immediately remove any User Submissions from FRC Connect without notice to you if you breach any of the foregoing representations, warranties and covenants, without any liability for such removal.
Tarion shall have the right (but not the obligation) in its sole discretion to refuse, move or remove any User Submissions. Tarion may review or monitor User Submissions that are submitted and/or posted on FRC Connect. However, Tarion is under no obligation to do so and will not assume liability or responsibility for any User Submissions submitted and/or posted by users to FRC Connect in any area. Tarion will fully cooperate with any legal obligation to disclose the identity of anyone posting unlawful, threatening, libellous, obscene, pornographic, profane or otherwise offensive or illegal materials on FRC Connect. Tarion may, in its sole discretion, use any evidence of your use of FRC Connect, including information relating to such use such as identification of senders and receivers of information, use frequency and content of transmissions, in connection with Tarion's operation of FRC Connect, its administration of the Act and its regulatory and consumer protection activities. Tarion deletes User Submission and other information provided to it in accordance with its business continuity policies and procedures and in accordance with applicable law. FRC Connect is not a means of storing information or documents for future retrieval or use by Field Review Consultants and you should maintain copies of all information submitted. Tarion expressly disclaims any obligation or promise to maintain records of any information submitted by you or your Third Party Service Providers and there is no expectation that Tarion will provide or make accessible copies of any such information.
You shall take all reasonable steps to limit the amount of unnecessary personal information which you provide to Tarion in your User Submissions.
5. THIRD PARTY SERVICE PROVIDERS. You are fully responsible for the activities of any third party software vendor(s) or other service provider(s) that you engage to facilitate your access to and/or use of FRC Connect ("Third Party Service Providers") and for their compliance with this Use Agreement. Any act or omission by a Third Party Service Provider that, if performed by you would constitute a breach this Use Agreement, will be deemed to be an act or omission by you Without limiting the foregoing, you shall not permit any Third Party Service Provider to access and/or use FRC Connect or your password(s) or user ID(s) unless you obtain the written agreement of such Third Party Service Provider to comply with your obligations under Sections 2 to 12 and Section 14 of this Use Agreement (the "Third Party Service Provider Agreement"). The parties acknowledge and agree that Tarion shall have the benefit of any Third Party Service Provider Agreement and that, for such purpose, you shall be contracting both on your own behalf and as agent and trustee of Tarion and its Representatives. Without limiting the generality of the foregoing, you hereby agree to enforce any Third Party Service Provider Agreement, including the indemnity contemplated by Section 10 hereof, on behalf of Tarion or its Representatives, at Tarion's request.
6. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS. You acknowledge that Tarion and its licensors are the owners of all intellectual property rights in FRC Connect and its constituent parts and any materials, logos, names and other supporting materials provided to you by Tarion in connection with FRC Connect and its constituent parts. No title to the intellectual property rights in FRC Connect, or any supporting materials provided to you by Tarion in connection with FRC Connect, is transferred to you or any third party by this Use Agreement. You agree not to display, use or reproduce in any manner the Tarion or third-party trademarks, trade names, logos, product names, service names or icons featured on FRC Connect (the "Marks"), which are the property of their respective owners. Without limiting the generality of the foregoing, the display of the Marks on FRC Connect does not convey or create any licence or other rights in the Marks and any unauthorized use of the Marks is strictly prohibited. The display of any third-party Marks on FRC Connect does not imply any relationship or licence between Tarion and such third party or any endorsement by Tarion of such third party's wares, services or business.
7. LINKS. FRC Connect may contain links to third party websites, web apps or interactions with third party apps or services, as well as links to websites owned and/or operated by you ("Links"). The inclusion of any Links does not imply approval, endorsement or recommendation of such Links or any component(s) thereof or any association with its owners or operators by Tarion. Without limiting Section 4, your use of any Links is entirely at your own risk. Among other matters, it is your responsibility to ensure that you review and approve of the terms and conditions of any Links before using it.
8. INFORMATIONAL PURPOSES, ONLY. Services, data, resources and other information and materials provided by FRC Connect (collectively, "FRC Connect Resources") are not intended as a source of educational, professional, administrative, legal or other advice. FRC Connect Resources are for informational purposes only and are not intended to be a substitute for professional advice, assessment and evaluation. You agree that you must evaluate, and bear all risks associated with, the use of any FRC Connect Resources, including any reliance on the availability, accuracy, completeness, timeliness, usefulness or appropriateness of same. This includes the following: (a) unsolicited information of a general or educational nature; (b) data and information generated in response to transactions or searches by you or other users of FRC Connect; (c) User Submissions that are contributed to FRC Connect by you or other users; and (d) reminders, appointments, timelines, correspondence or third-party information or materials that Tarion may provide to you or otherwise make available on FRC Connect. You should consult the Act, the applicable Tarion registrar bulletins and other Tarion publications before making any decision or taking any action that might affect the satisfaction or performance of your FRC Connect Activities and/or legal obligations.
9. NO WARRANTY. FRC Connect (including any User Submissions) is provided "as is" and "as available" without any representation, warranty or condition of any kind, including but not limited to the implied warranties or conditions of merchantable quality, fitness for a particular purpose, non-infringement of third-party rights and those arising by statute or otherwise in law or from a course of dealing or usage of trade. The entire risk as to the quality and performance of FRC Connect is with you. Without limiting the generality of the foregoing, Tarion does not warrant that: (a) FRC Connect will be accurate, complete or up-to-date; (b) defects or errors in FRC Connect will be corrected; (c) there will be no modification, disclosure or destruction of, or unauthorized access to, FRC Connect, including any User Submissions; (d) the operation of FRC Connect will be timely, uninterrupted or error-free; or (e) that any User Submission or other information provided by you or your Third Party Service Providers will be retained, retrievable or returned to you. Among other matters, FRC Connect or any part thereof may be periodically unavailable to allow for maintenance.
10. INDEMNITY. You hereby agree, during the term of this Use Agreement and after the termination hereof, to indemnify and save Tarion and its Representatives harmless from and against any and all liabilities, losses, damages, suits, claims, demands, costs (including court costs and legal fees), fines and actions of any kind or nature whatsoever to which they shall or may become liable for, or suffer by reason of your or your Third Party Service Providers': (a) use of FRC Connect; (b) contribution, submission and/or posting of User Submissions; (c) breach, violation or non-performance of any term or condition of this Use Agreement; or (d) violation of any third party's rights.
11. NO LIABILITY. In no event shall Tarion be liable, whether in contract (including fundamental breach and breach of a fundamental term), tort (including negligence) or otherwise, for damages (including direct, indirect, incidental, consequential, special, punitive, exemplary and aggravated damages and damages for loss of use, profits or revenue or failure to realize expected savings) or any other remedy relating to this Use Agreement, FRC Connect, any User Submissions or any Third Party Service Provider Agreement.
12. CONFIDENTIAL INFORMATION, ETC. FRC Connect incorporates trade secrets and constitutes the confidential information of Tarion and its licensors and you shall use all reasonable efforts (and in any event, efforts that are no less than those used to protect your own confidential information) to protect such aspects of FRC Connect from unauthorized use or disclosure. You hereby represent that you have obtained all necessary consents to the collection, use, disclosure and/or processing by Tarion and its Representatives, for the purposes contemplated by this Use Agreement and the Privacy Code, of any information, including personal information about individuals, that you provide to Tarion, or permit Tarion to access, in connection with FRC Connect Activities. The parties agree that money damages may not be a sufficient remedy for breach of this Section 12 or Section 13, and therefore, in addition to all other remedies available to Tarion in the event of a breach or a threatened breach of this Section 12 or Section 13 by you, Tarion shall be entitled to seek specific performance and injunctive or other equitable relief. In addition to any other remedy available at law or in equity, you hereby consent to the entry of a temporary restraining order, injunction or other similar order or action of any judicial authority, without the necessity of posting a bond to enforce this Use Agreement.
13. FRC CONNECT SECURITY AND COOKIES. To access and use FRC Connect, you must supply data that may include, but is not limited to, your name, password and email address and must also be assigned a user ID ("Account Data"). You agree to provide true and complete data and to update your Account Data as necessary to maintain it in an up-to-date and accurate fashion.
You agree that Tarion may collect and use technical and other data, including your IP address and technical information about your Electronic Device as defined below, operating system and browser, to improve your user experience and facilitate the provision of software updates, product support and other services to you if any, relating to your interactions with Tarion.
As between you and Tarion, you shall be responsible for all use of FRC Connect made using your name, user ID(s), password(s), email address(es) and domain name(s) (including subdomains thereof), regardless of the identity of the person(s) making such use, and without limiting the generality of the foregoing, Tarion shall have no responsibility or liability in connection with any unauthorized use of your name, user ID(s), password(s), email address(es) or domain name(s) (including subdomains thereof), including any loss or damage arising from a failure to protect your user ID(s) or password(s) or any other breach of security. You agree to use all reasonable measures to protect your user ID(s) and password(s) from unauthorized access or use, including by refraining from the use of any customized password scripting or synchronization. Tarion shall have the right to use your user ID(s) and passwords to authenticate your identity in connection with FRC Connect and shall be under no obligation to confirm actual identity or authority to access and/or use FRC Connect. Tarion shall have the right, but no obligation, to require you to change your FRC Connect user ID(s) and/or password(s) at any time for security or other purposes. You agree to immediately notify Tarion of any unauthorized use of your name, user ID(s), password(s), email address(es) or domain name(s) (including subdomains thereof) in connection with FRC Connect.
The electronic device that you use to access FRC Connect, including any personal computer, cellular phone, telephone, smart phone or personal digital assistant ("Electronic Device") may be vulnerable to viruses or online attacks that seek to intercept or alter information, including sensitive information that you provide through the Internet. You agree to take all reasonable security precautions, including by ensuring that any Electronic Device you use to access or use FRC Connect has an up-to-date anti-virus program, anti-spyware program and firewall. To prevent unauthorized access, you must: (a) properly log off from FRC Connect as soon as you have finished accessing and using it and immediately close your browser and (b) set up and use multi-factor authentication when signing into FRC Connect in addition to your FRC Connect user ID and password. Multi-factor authentication is an authentication method that requires you to provide an additional verification factor to authenticate your identity. Depending on the method of authentication you choose, you agree to use an Electronic Device to either: (i) receive an authentication code through SMS, email or authenticator app; or (ii) verify your identity through biometric tokens already stored on your Electronic Device.
"Cookies" are small pieces of data that are stored on your Electronic Device. Tarion and its Representatives may use cookies to provide, monitor and analyze how FRC Connect is used. Cookies can be disabled, but some functions of FRC Connect may not work if cookies are not enabled. Refer to your browser or Electronic Devices' help material to learn what controls you can often use to remove or block cookies or block or remove other data stored on your computer or device (such as by using the various settings in your browser). If you do this, it may affect your ability to use the FRC Connect or other websites and applications.
14. TERMINATION, MODIFICATION OR SUSPENSION. This Use Agreement may be terminated by Tarion immediately at any time without notice to you. Upon the termination of this Use Agreement, you shall immediately cease to access and use FRC Connect.
Without limiting the generality of the foregoing, Tarion reserves the right at any time and from time to time to modify or suspend, temporarily or permanently, FRC Connect or any part thereof (including your access thereto) without notice to you. In the event and for the duration of any suspension, you shall cease to access and use FRC Connect, or the part(s) of FRC Connect subject to such suspension.
Tarion shall not be liable to you or any third party for any modification or suspension of FRC Connect or any part thereof (including your access thereto), or any termination of this Use Agreement. All sections of this Use Agreement other than Section 2 shall survive any such termination, modification or suspension.
If termination occurs, any necessary interactions with Tarion can be achieved through other channels.
15. NOTICE. Any notice or other communication required or permitted to be given or made hereunder shall be in writing and shall be well and sufficiently given or made if delivered by email to Tarion at b19@tarion.com and to you at the email address provided by you to Tarion in connection with your use of FRC Connect or through a notification posted on or sent via FRC Connect. Any notice or other communication given or made in accordance with the foregoing shall be deemed to have been given or made and to have been received on the day of sending thereof, if sent during Business Hours on a Business Day and, if not, then on the first Business Day after the sending thereof.
"Business Day" means any day from Monday to Friday inclusive, other than New Year's Day, Family Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any special holiday proclaimed by the Governor General or Lieutenant Governor; and "Business Hours" means the hours of 8:00 am to 5:00 p.m. (EST) on a Business Day, unless the context otherwise reasonably requires based on the nature of the communication.
Either party may from time to time change its email address for notice by giving notice to the other party in accordance with this Section.
16. FURTHER ASSURANCES. You agree that you will do all such acts and execute all such further documents and the like, and will cause the doing of all such acts and the execution of all such further documents as are within your power to cause the doing or execution of, as Tarion may from time to time reasonably request, in writing, and as may be necessary or desirable to give effect to this Use Agreement.
17. FORCE MAJEURE. Tarion shall be excused from performance under this Use Agreement to the extent and for the period of time that Tarion is prevented from so performing by reason of any cause beyond its reasonable control.
18. INDEPENDENT CONTRACTORS. It is understood and agreed that in giving effect to this Use Agreement, neither party shall be or be deemed a partner or agent of the other party for any purpose and that the relationship of the parties shall be that of independent contractor. Nothing in this Use Agreement shall constitute a partnership or a joint venture between the parties. Neither party shall have the right to enter into agreements, pledge the credit of or incur expenses or liabilities on behalf of the other party. You further acknowledge and agree that Tarion is not, nor shall it be deemed, a partner or agent of any Ministry, Province or other institution for any purpose.
19. THIRD PARTY BENEFICIARIES. The parties acknowledge and agree that, although nothing in this Use Agreement shall confer upon any third party other than Tarion's Representatives any benefit of any kind, Tarion's Representatives shall have the benefit of this Use Agreement and, for such purpose, Tarion is contracting both on its own behalf and as agent and trustee for its Representatives. Without limiting the generality of the foregoing sentence, you agree that Tarion may enforce the indemnity in Section 10 on behalf of any of its Representatives.
20. ASSIGNMENT. Tarion may, at any time, without your consent, novate this Use Agreement, or any of its rights and/or obligations hereunder, in whole or in part, to any third party. You may only assign this Use Agreement, or any of your rights hereunder, in whole or in part, to a third party with the prior written consent of Tarion. This Use Agreement shall inure to the benefit of and be binding upon each of the parties and their respective successors and permitted assigns.
21. GOVERNING LAW. The parties agree that all matters relating to this Use Agreement shall be governed by and construed in accordance with the laws of Ontario and federal laws of Canada applicable therein, without regard to conflict of law rules. The parties submit to the non-exclusive jurisdiction of the courts of Ontario. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. Tarion makes no representation that FRC Connect is appropriate or available for use in locations outside of Ontario, Canada and accessing FRC Connect from locations where FRC Connect is illegal is prohibited. If you choose to access and/or use FRC Connect from a location outside of Ontario, Canada, you do so on your own initiative and are responsible for compliance with local laws.
22. CHOICE OF LANGUAGE. You confirm that you prefer that this Use Agreement and any related documents be written in English. Vous confirmez préférer que cette convention et les documents s'y rattachant soient rédigés en anglais.
23. MISCELLANEOUS. This Use Agreement, including the Terms of Use and the Privacy Code, is the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior or collateral oral or written representations or agreements relating to such subject matter. Notwithstanding the foregoing, nothing in these Terms of Use shall diminish or derogate from the Vendor's obligations under the Act or any other agreements with Tarion, to the extent that such other agreements do not relate specifically to FRC Connect. Any conflict or inconsistency between the Terms of Use and the Privacy Code shall be resolved in favour of the Terms of Use. In the event that one or more of the provisions of this Use Agreement are held to be illegal or unenforceable, the parties shall substitute, by mutual consent, valid provisions for such invalid provisions, which valid provisions in their economic effect shall be similar to the invalid provisions, such that it may be reasonably assumed that the parties would have entered into this Use Agreement pursuant to such valid provisions. In the event that the parties cannot agree upon such valid provisions, the invalidity of any provisions of this Use Agreement shall not affect the validity of this Use Agreement as a whole or in part, unless such invalid provisions are held to be a material part of this Use Agreement such that it may be reasonably assumed that the parties would not have entered into this Use Agreement without such provisions in place. A waiver by either party hereto of any of its rights hereunder or of the performance by the other party of any of its obligations hereunder shall be without prejudice to all of the other rights hereunder of the party so waiving and shall not constitute a waiver of any other rights or, in any other instance, of the rights so waived, or a waiver of the performance by the other party of any of its other obligations hereunder or of the performance, in any other instance, of the obligations so waived. No waiver by either party of any of its obligations hereunder shall be effective or binding upon such party unless same shall be expressed in writing.