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Terms and Conditions of Sale

Last Updated: November 10, 2020

 

These terms and conditions of sale (“Terms”) contain very important information regarding your rights and obligations, as well as conditions, limitations and exclusions that might apply to you. Please read these Terms carefully.

 

These Terms govern the placing of purchase orders (each, a “Purchase Order”) with Ensembl Inc. (“ENSEMBL” or “we”, “us” or “our”) for ENSEMBL products, including Stackware and other accessories (“Products”), or services through ENSEMBL’s website located at https://www.getensembl.com/ (“Website”).

 

By placing your Purchase Order for ENSEMBL Products you affirm that you are of the minimum legal age to enter into these Terms, and that you have read, understood and you accept and agree to be legally bound by these Terms, including ENSEMBL’s Privacy Policy (available at www.getensembl.com/legal). You affirm that if you place an order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these terms and conditions. If you do not accept to be bound by these Terms, please do not submit your Purchase Order and leave the Website immediately.

 

You may not place a Purchase Order or obtain Products from ENSEMBL or this Website if you: (i) do not agree to these Terms, (ii) are not the older of (a) at least 18 years of age or (b) the minimum legal age to form a binding contract with ENSEMBL, or (iii) are prohibited from accessing or using this Website or any of this Website’s contents, products or services by applicable law.

We reserve the right to modify the above Terms at any time without notice. The date of the most recent update is noted at the bottom of this page. You should review these Terms before purchasing any Product or services that are available through this Website. Your continued use of this Website after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.

 

These Terms are an integral part of the Website Terms and Conditions of Use (available at www.getensembl.com/legal) that apply generally to the use of our Website. You should also carefully review our Privacy Policy (available at www.getensembl.com/legal) before placing a Purchase Order for Products or services through this Website.

 

Purchase Order Registration

 

When placing a Purchase Order for the Products, you will be required to provide certain information, such as your address and billing information. You represent and warrant that all such information is accurate, and you shall ensure that such information is kept current. ENSEMBL shall have no responsibility or liability for inaccurate information or information that later becomes outdated and shall have no obligation to make efforts to determine the correct contact or shipping information. You can update your information at any time prior to your Product being shipped by sending an e-mail to help@getensembl.com and/or updating your account information through our Website, additional applicable charges may apply if you change your shipping address (see Shipping and International Orders section below for details).

 

Purchase Order and Acceptance

 

You agree that your Purchase Order is an offer to buy, subject to these Terms, all Products and services listed in your Purchase Order. All Purchase Orders must be accepted by us or we will not be obligated to sell the Products or services to you. We may choose not to accept  Purchase Orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered. ENSEMBL may decline or delay any Purchase Order to avoid oversubscription or as it deems appropriate. In such case, ENSEMBL will notify you as soon as reasonably practicable and refund to you the applicable payment in full.  For clarity, nothing in these Terms requires ENSEMBL to complete a Purchase Order of Products.

 

Prices

 

In order for you offer to be eligible for ENSEMBL’s acceptance, you must pay the applicable Product price as listed in your Purchase Order statement. All prices and Product Purchase Orders are quoted and shall be processed in United States Dollars. For customer’s whose shipping address is Canada, taxes will be calculated at checkout and standard shipping is included. For customers whose shipping address is outside of Canada, your price includes duties and taxes. Customers whose shipping address is United States have standard shipping included. You are responsible for the timely payment of all fees and for providing a valid method of payment. All prices, discounts and promotions posted on this Website are subject to change without notice. The price charged for a Product or service will be the price advertised on this Website at the time the  Purchase Order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to Purchase Orders placed after the time of the increase. We reserve the right, but are not obligated, to limit the sales of our Products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis.

 

We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies or omissions at any time, to modify the prices of Products at any time in light of such errors, inaccuracies or omissions, without prior notice, and to cancel any Purchase Orders arising from such occurrences. If there is such an error in pricing, ENSEMBL will cancel your Purchase Order and reverse any charges that have been applied, then contact you to ask you to place a new Purchase Order for the Product at the correct price.

 

Payment Terms

 

Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of a Purchase Order. We accept approved credit cards and other payment methods as set forth on our Website, as supported by Shopify, for all Purchase Order purchases. When you make a Purchase Order purchase, you authorize us or our third-party payment processor to charge your payment method for any such purchases (plus any applicable taxes and other charges) that may be accrued by or in connection with your purchase. If you are completing the purchase using a third-party payment processor, that processor’s terms and conditions apply to your payment transaction. Payment does not guarantee acceptance of your Purchase Order.

You represent and warrant that (i) the payment information you supply to us is true, correct and complete, (ii) you are duly authorized to use such payment method for the purchase, (iii) charges incurred by you will be honoured by your payment provider, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes and duties, if any, regardless of the amount quoted on the Website at the time of your Purchase Order.

 

Shipping

 

ENSEMBL may, at its discretion without liability or penalty, make partial shipment of a Product. Commencement of shipping is subject to change without notice to you. As a result, in the event that a delay arises, and the estimated shipment and/or release of the Product is not met, ENSEMBL is not responsible for any damages that may occur due to the delay, nor shall it be obligated, except as set forth in these Terms, to provide any discounts, refunds or credits due to any such delays. The Products will be shipped in the order in which a Purchase Order was accepted by ENSEMBL.

 

International Orders

 

Customers whose shipping addresses are outside Canada and the United States are responsible for complying with their local laws and regulations. When you place an order and select a shipping address outside of Canada and the United States you or your designated consignee are the Importer of Record and as such are authorizing ENSEMBL to import the goods to your destination country on your behalf. Furthermore, you agree that ENSEMBL may delegate the obligation to import the goods on your behalf to a subcontractor (e.g., a customs broker).

Additionally, for those customers whose shipping and/or billing address is outside Canada and the United States you must also pay all tariff, import, customs, tax, and other charges applicable in your jurisdiction These charges are your responsibility. Please check with your province, state and/or country’s customs office to determine these additional costs prior to completing your Purchase Order.

 

Transfer of Risk of Loss and Title

 

Any Product purchased from ENSEMBL is delivered to you by a third-party delivery company, pursuant to a shipping contract. You shall become the owner of a Product and shall assume the risks of loss or damage at the time of delivery by ENSEMBL of the Product to the third-party delivery company. Claims against the third-party delivery company for loss or damage during shipping are your responsibility. We are not liable for any delays in shipments.

 

Cancellations and Returns

 

Once your order has shipped, you may return the Product in accordance with the Return Policy. Your order may be shipped prior to your receipt of an email confirmation of shipping. ENSEMBL may cancel your order at any time for any or no reason. If ENSEMBL cancels your Purchase Order you will receive a full refund of the purchase price without interest.

 

Product Purchases and User Accounts

 

If you register on the Website for the purchase of Products, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your electronic devices and your account, and you agree to accept responsibility for all activities that occur under your account or password. ENSEMBL reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion.

 

Use and Use Restrictions

 

You represent and warrant that you are buying Products or services from the Website for your own personal use or for gifting purposes only, and not for resale, commercial use or export. You further warrant that you will not reverse engineer the Products or use it to create competitive Products. ENSEMBL reserves the right to take legal action against unauthorized and unofficial sale of Products.

 

Use of the Product may be subject to local laws, regulations, and ordinances in your jurisdiction, including, but not limited to, health and safety laws. You are responsible for complying with all applicable laws. It is your responsibility to determine whether your use of the Product complies with local laws, regulations, and ordinances. You may request information about the Product from ENSEMBL to assist you in making your determination, but ENSEMBL will not be liable for errors in that information or for your determination.

 

You must use the Product in strict accordance with the user documentation provided together with the Product.

 

Intellectual Property

 

ENSEMBL is and will remain the sole and exclusive owners of all intellectual property rights in and to each Product and service made available on this Website and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the Products or services made available through this Website, or of any intellectual property rights relating to those Products or services. Further, ENSEMBL reserves all rights in and to the Products not granted expressly in these Terms or other additional license terms.

 

Online Content

 

(a) Our Content

All of the content that appears on the Website, including all visuals, text, audio and video clips are subject to copyright protections and/or other intellectual property rights or licenses held by ENSEMBL (“Content”). We either own or have a license to all such Content.

Subject to your compliance with these Terms, ENSEMBL grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Website, Products and services and solely for your personal and non-commercial purposes.

 

(b) User Content

“User Content” means any text, graphics, images, works of authorship of any kind or other materials that are posted, generated, provided, or otherwise made available by you through the Services or that you share with other users or recipients. User Content includes without limitation Feedback (defined below) and Tagged Media (defined below).

 

By making any User Content available through the Website, Products and services you hereby grant to ENSEMBL a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content, in whole or in part, in connection with the Website, Products and services and ENSEMBL’s (and its successors’ and affiliates’) business, including without limitation for promoting, marketing or advertising and redistributing part or all of the Website, Products and services (and derivative works thereof) in any media formats and through any media or social channels (whether now known or hereafter devised). You understand that ENSEMBL is not obligated to utilize any of the rights granted in these Terms and we do not guarantee any confidentiality with respect to any User Content you submit or upload.

 

You understand that your content, including User Content (but not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

Except where prohibited by law, by submitting or uploading User Content through the Website, Products and services, you waive and agree not to assert any “moral” rights or claim resulting from our alteration of the User Content or any photographs, footage, statements or other work contained in the User Content. You are also agreeing to appoint ENSEMBL as your attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, and to protect the rights in any derivative works created from your User Content, and to have the User Content removed from any other website or platform.

 

You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by ENSEMBL on or through the Website, Products and services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

 

We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

 

(c) ENSEMBL-Tagged Media

The Site includes the ENSEMBL page located at @getensembl, which extracts content from our users and customers who share photos and videos on Instagram using ENSEMBL’s brand hashtags, including but not limited to #getSTACKWARE, #getENSEMBL, #cometogether, #ENSEMBLinspiration or tagging the ENSEMBL Instagram account @getensembl (all such hash-tagged or @- labeled photos and videos, “Tagged Media”). You acknowledge and agree that the Tagged Media may be used in ENSEMBL’s marketing, advertising and social media channels, Website or other websites that we operate or control, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Tagged Media for identification, publicity related to the Website, Products and services and similar promotional purposes, including after you terminate your Account or your use of the Website, Products and services. You represent and warrant that posting and use of your Tagged Media, including to the extent such Tagged Media include your name, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark or other intellectual property rights.

 

(d) DMCA/Copyright Policy

ENSEMBL respects copyright law and expects its users to do the same. It is ENSEMBL’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

 

Feedback

 

We welcome feedback, comments, reviews of the Products you purchase through us, and suggestions for improvements to the Website, Products or services (“Feedback”). You can submit Feedback by emailing us at help@getensembl.com or by reviewing a particular Product. By so submitting, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

 

Privacy

 

We respect your privacy and are committed to protecting it. Our Website Privacy Policy governs the processing of all personal information collected from you in connection with your Purchase Order of Products or services through the Website.

 

Limited Warranty and Disclaimer

 

Any warranty we make available for our Products will be published on our website.

EXCEPT FOR THE LIMITED WARRANTIES REFERENCED ABOVE, WE MAKE NO WARRANTY OR CONDITION WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES PURCHASED THROUGH THE WEBSITE, INCLUDING (i) ANY WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE; OR (ii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPURCHASESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

ENSEMBL DOES NOT WARRANT THAT USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. ENSEMBL DOES NOT WARRANT THAT ANY PRODUCT COMPLIES WITH ALL APPLICABLE LAWS OR REGULATIONS IN ANY PARTICULAR JURISDICTION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE PRODUCT.

 

Limitation of Liability

 

IN NO EVENT SHALL ENSEMBL, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS OR LICENSORS  BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INJURY, LOSS, CLAIM OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS OR ANY SIMILAR DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, and in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

 

IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS AND/OR SERVICES SOLD THROUGH THE WEBSITE OR, IF YOU HAVE NO PAYMENT OBLIGATIONS TO ENSEMBL, ONE HUNDRED CANADIAN DOLLARS ($100).

 

Indemnity

 

You shall defend, indemnify and hold harmless ENSEMBL and its officers, directors, officers, employees, agents, affiliates, contractors, interns, licensors and suppliers (“Indemnitees”) from and against any claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your use of, or alleged use of, any Product; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

 

Applicable Laws

 

These Terms and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to these Terms will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflict of law provisions. The Ontario Superior Court of Justice will have exclusive jurisdiction to resolve any disputes relating to these Terms. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

 

General Terms

 

(a) Force Majeure

We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, tsunami, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.

 

(b) Assignment

You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

 

(c) No Waivers

The failure or delay by us to exercise or enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of ENSEMBL.

 

(d) Entire Agreement

These Terms, our Website Terms and Conditions of Use, and our Website Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms, and supersede all communications, representations or agreements, either oral or written, between ENSEMBL or its affiliates and you with respect to this subject matter. If for any reason a court of competent jurisdiction finds any provision of the Terms or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Terms, and the remainder of the Terms shall continue in full force and effect.

 

Termination

 

We may terminate your access to and use of the Website and related services at our sole discretion, at any time and without notice to you. You may disable access to your Account at any time by sending an email to us at help@getensembl.com. Upon any termination, discontinuation or cancellation of services or your Account, the following sections will survive: Intellectual Property, User Content, Payments, Feedback, Limited Warranty and Disclaimer, Limitation of Liability, Indemnity, Applicable Law, and General Terms.

 

Contact Us

 

If you have any questions or concerns about these Terms, you can contact us in writing at: help@getensembl.com.

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