Revised on 22 October 2021
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS WEB SITE
Your use of this Web site is subject to these TOU. You should read them carefully before going further. Additional or separate terms may apply to your use of the Web site.
By using this Web site, you approve, on behalf of yourself and all members of your household, of these TOU and you represent and warrant that you are eligible for the use of the Web site i.e. you are of legal age and you have the capacity to form any binding contracts. If you are not eligible or you do not approve of these TOU, do not use the Web site, exit immediately the Web site and clear browsing data (clear at least each of the cached images and files which is related to the Web site).
DISCLAIMER AND LIMITATION OF LIABILITY IN OUR FAVOR. PLEASE READ THE SECTION 7 “DISCLAIMER” AND SECTION 8 “LIMITATION OF LIABILITY” CAREFULLY AND CONSIDER SEEKING LEGAL ADVICE, THESE SECTIONS MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
1. PRELIMINARY INFORMATION ABOUT THE WEB SITE
This Web site is an e-commerce store at the address eshop.hercules.com. The Web site is legally independent from any other web sites hosted on the domain name hercules.com. The Web site is hosted on the domain name hercules.com with the authorization of Guillemot Corporation S.A.
We are a subsidiary of Guillemot Corporation S.A., the owner of the HERCULES US trademark registration and the HERCULES Canadian trademark registration, who has adopted a regional sales organization.
We are the publisher of the Web site. YOU ACKNOWLEDGE THAT WE (GUILLEMOT INC.) ARE NOT A MANUFACTURER (especially of any the goods which may appear on the Web site that we publish).
Digital River, more precisely DR globalTech Inc. (“DR”) is the seller and merchant of record for all products sold on the Web site. The sales on this Web site are subject to the DR’s Terms of Sale.
We reserve the right to modify this Website, at any time, and without prior notice to you.
2. USE OF THE WEB SITE
When you visit the Web site or provide information (to DR or us), you are communicating electronically. In doing so, you consent to receive communications from DR and/or from us electronically. Guillemot and DR may communicate with you by e-mail or by posting notices on the Web site. You agree that all agreements, notices, disclosures, and other communications that Guillemot or DR provides to you electronically satisfy any legal requirement that such communication be in writing.
Guillemot publishes on the Web site a variety of resources, including documents, graphics, information, images, photos, product information, texts (collectively “Materials”), including an e-commerce service user interface.
Other than for non-commercial, personal and private use, the reproduction, distribution or transmission of any part or parts of this Web site or any information contained therein by any means whatsoever without the prior written permission of Guillemot Inc. is prohibited. You may neither use the Web site in any manner which could damage, disable, overburden, or impair the Web site, nor interfere with any other party's rightful use of the Web site. You may not test the vulnerability of the Web site or use any robot or other automated means -except for indexing or updating of search engines- to access the Web site without our prior express written permission. With the exception of any personal information about you (i.e., with the exception of your rightful access to your Account), you may not access, or attempt to access, any non-public portion of the Web site or any personal information about a user. We reserve the right to monitor your use of the Web site and to monitor your compliance with these TOU; by using the Web site, you acknowledge and consent to such monitoring.
You must not use the Web site in any manner (including with ulterior motive) which could harm Guillemot, DR, or any of their respective affiliated companies (parent company, sister companies, etc.); YOU REPRESENT AND WARRANT THAT YOUR USE OF THE WEB SITE AND ANY MATERIALS IS AND WILL REMAIN AT ALL TIMES FAVORABLE TOWARDS GUILLEMOT, DR, AND THEIR RESPECTIVE AFFILIATED COMPANIES.
You need to create on the Web site an account to be able to purchase goods (“Account”). By creating an Account, you agree that:
|a)||You represent and warrant that you have at least reached the age of legal majority (which is 18 in all states of the United States except for Alabama and Nebraska, in which it is 19 and Mississippi, in which it is 21) and are fully able and competent to enter into the TOU; and|
|b)||You’ll provide truthful, accurate and complete information when you create your Account; and|
|c)||You’ll update your Account with truthful, accurate and complete information when any of your information becomes no longer accurate; and|
|d)||You’ll safeguard the password of your Account and won’t share it with anyone (without limiting the foregoing, you will not use the same password for any other account); and|
|e)||You’ll change your email address and update accordingly your Account if you suspect anyone else is using your email address; and|
|f)||You’ll contact us immediately if you become aware of or believe there is or may have been any unauthorized use of your Account or security concerns; and|
|g)||You will not register for more than one Account on the Web site, except under prior authorization that you may be given by us on a case-by-case basis.|
You are responsible for maintaining the confidentiality of your Account password and for each activity that takes place through your Account. We are not liable for any harm caused or related to the theft or misappropriation of your Account password or your authorization of anyone else to use your Account password.
Note: You can permanently delete your Account by sending us a request to delete your Account.
4. YOUR TRUST INFORMATION REPRESENTATION AND WARRANTIES
You represent and warrant to both DR and Guillemot that you have the right to use any credit card or other means of payment that you provide to DR. By providing payment card information to DR, you authorize DR to use the card as a payment method for your purchase made through your Account.
YOU REPRESENT AND WARRANT TO BOTH DR AND GUILLEMOT THAT ANY AND ALL INFORMATION THAT YOU SUBMIT THROUGH THE WEB SITE IS TRUTHFUL, ACCURATE AND COMPLETE; YOU WILL MAINTAIN THE ACCURACY OF SUCH INFORMATION; YOU ARE ADULT AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, REPRESENTATIONS, WARRANTIES, AND RESPONSIBILITIES SET FORTH IN THESE TOU, YOU ABIDE BY AND COMPLY WITH THESE TOU AT ALL TIMES; AND YOUR USE OF THE WEB SITE DOES NOT VIOLATE THESE TOU, OR ANY APPLICABLE LAW OR REGULATION. Providing any untruthful or inaccurate information is a material breach of these TOU and may result in cancellation of your order; without limiting the TOU, your Account profile may be deleted, and your Account may be terminated without warning, if we believe that you are a minor.
5. INTELLECTUAL PROPERTY RIGHTS; LIMITED LICENSE
All intellectual property rights, trademarks, brand names, logos, copyrights, and any other legally protectable item of or on this Web site are owned or controlled by Guillemot’s affiliated companies or their respective licensors or suppliers. You are granted a personal, limited, royalty-free, revocable, non-exclusive, nontransferable and non-sublicensable license, to browse the Web site and to display the Materials, only on the screen of a single personal computer (which means your personal computerized terminal) or personal mobile device, solely for your personal, private, non-commercial use, and provided all copyright, trade mark and other proprietary notices are left intact (the “Limited License”). THE GRANT OF THIS LIMITED LICENSE IS CONDITIONAL UPON YOUR AGREEMENT TO AND COMPLIANCE WITH ALL TERMS AND CONDITIONS OF THE TOU. Any other use of any portion of the Web site, including, but not limited to, reproduction, modification, distribution, or republication, without the prior written permission of Guillemot is strictly prohibited and is a violation of intellectual property rights. Use of any Materials on or in any other internet site, any publication, any works, or elsewhere, without the prior written express permission of Guillemot are strictly prohibited, and each of such use is a violation of intellectual property rights. Except as expressly provided herein, Guillemot does not grant any express or implied right to you under any patent, copyright, trademark, or trade secret information. You will not use (other than to the extent permitted by applicable law) any software, and data accompanying the software (collectively, the “Software”) or any materials (of whatever nature) contained or capable of being downloaded from the Web site to develop, design, produce, manufacture, sell and/or distribute any goods or services nor will you permit any third party to do any of the above. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, or services obtained from the Web site. You do not have our permission to distribute the Materials, publicly display them, charge any fee for them, use it to create your own web site, construct a database with it or replicate the Web site or any parts of it elsewhere. Guillemot intends these only as examples and not as an exhaustive list of things you can’t do with the Web site or the Materials.
You may post product reviews on the Web site. We reserve the right (but not the obligation) to publish or reject, and to remove or edit such content, and we reserve the right not to regularly review posted content. If you do post product reviews, you grant us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant us and our sublicensees the right to use the name or nickname that you submit in connection with such content, if they choose.
DMCA COPYRIGHT NOTICE. If you believe your work or content has been copied and posted to the Web site in a way that constitutes copyright infringement, please provide our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (“DMCA”): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed upon; (c) a description of where the material that you claim is infringing is located on the Web site; (d) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) your name, address, telephone number and email address (if available); and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
You can contact our DMCA designated copyright agent for notifications of claimed infringement at:
Guillemot Inc., Attention to Legal Manager -DMCA Notice-, 6300 avenue du Parc, Bureau 440, Montreal, H2V 4H8, Canada
Note: the above contact information is provided exclusively for notifying us that copyrighted material may have been infringed.
6. NOTICE SPECIFIC TO SOFTWARE
If you download any Software from this Web site, the downloading of any such Software including but not limited to any images or files incorporated in the Software shall be subject to the Limited License set out above. Any other use of Software, including but not limited to the use of any images or files generated by the Software, is either subject to a separate end-user license agreement, or forbidden (if not expressly authorized by the end-user license agreement). Guillemot’s respective licensor(s) shall retain all right, title, interest, and intellectual property rights in and to the Software. You may not distribute, sell, or transmit the Software nor alter, modify, or adapt the Software, including but not limited to translating, decompiling, reverse engineering, disassembling, or creating derivative works therefrom other than to the extent permitted by applicable law.
YOUR USE OF THE WEB SITE REQUIRES INTERNET ACCESS; YOU ACKNOWLEDGE THAT ACCESS TO THE INTERNET MAY RESULT IN CHARGES TO YOU, AND THAT WE ARE NOT RESPONSIBLE FOR ANY SUCH CHARGES, NOR FOR THE AVAILABILITY OR SPEED OF THE INTERNET. GUILLEMOT AND ALL THEIR AFFILIATED COMPANIES ARE NOT RESPONSIBLE FOR THE FAILURE OF ENCRYPTION TECHNOLOGIES PROVIDED BY THIRD PARTIES. GUILLEMOT AND ALL ITS AFFILIATED COMPANIES ARE NOT RESPONSIBLE FOR THE ACTIONS OF THIRD PARTIES, SUCH AS THE DISTRIBUTION OF A USER’S PERSONAL INFORMATION BY A THIRD PARTY. WE DO NOT GUARANTEE THAT THE INFORMATION CONTAINED IN THIS WEB SITE WILL NOT CONTAIN ERRORS, INACCURACIES, OR OMISSIONS. THIS WEB SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT ANY REPRESENTATION, TERM, CONDITION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED (AND WHETHER IMPLIED BY LAW, CUSTOM OR OTHERWISE) IN RESPECT OF THE WEB SITE, INCLUDING, BUT NOT LIMITED TO, ITS CONTENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BOTH GUILLEMOT AND ALL ITS AFFILIATED COMPANIES (INCLUDING ITS PARENT COMPANY AND ITS SISTER COMPANIES) DISCLAIM ALL REPRESENTATIONS, TERMS, CONDITIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, AS TO SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GUILLEMOT AND ALL ITS AFFILIATED COMPANIES EXCLUDE ANY REPRESENTATION OR WARRANTY THAT THE INFORMATION AND/OR FACILITIES ACCESSIBLE VIA THIS WEB SITE ARE ACCURATE, COMPLETE OR CURRENT, OR THAT THIS WEB SITE WILL BE FREE OF DEFECTS INCLUDING, BUT NOT LIMITED TO, VIRUSES OR OTHER HARMFUL ELEMENTS. THE USER OF THIS WEB SITE ASSUMES ALL COSTS AND RISKS ARISING AS A RESULT OF ITS USE OF THIS WEB SITE.
YOU ACKNOWLEDGE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, YOUR USE OF THE WEB SITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE WEB SITE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE WEB SITE MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER DR, GUILLEMOT, EACH OF THEIR AFFILIATED COMPANIES NOR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENT OR OTHER REPRESENTATIVES, IS RESPONSIBLE FOR ANY LOSS OR DAMAGE, TO YOUR PROPERTY OR DATA, THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE WEB SITE OR OTHERWISE FROM YOUR USE OF THE WEB SITE. THIS SECTION 7 “DISCLAIMER” CONSTITUTES AN ESSENTIAL PART OF THESE TOU.
8. LIMITATION OF LIABILITY
To the fullest extent permitted by applicable law, our sole obligation and your sole remedy in case one or more Web pages of the Web site fail to work properly is for us to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied within a reasonable time, for you to terminate your use of the Web site.
Instead of using the Web site, you may use e-commerce services which are published by third parties; this sentence does not imply any endorsement by us.
To the fullest extent permitted by applicable law, we shall not be liable for the truthfulness of the content of advertising on the Web site.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GUILLEMOT, GUILLEMOT CORPORATION S.A., EACH OF GUILLEMOT CORPORATION S.A.’S AFFILIATED COMPANIES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES WILL BE LIABLE TO YOU OR TO ANY OTHER PERSON, FOR ANY LOSS OR DAMAGE RELATED TO THE WEB SITE, INCLUDING, BUT NOT LIMITED TO, (A) DIRECT LOSS OR DAMAGE, LOSS OF DATA, INCOME, PROFIT OR OPPORTUNITY, LOSS OF OR DAMAGE TO PROPERTY, INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DELAY IN OPERATION OR TRANSMISSION, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, VIRUSES, FILE CORRUPTION, COMMUNICATION FAILURE, NETWORK OR SYSTEM OUTAGE, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OF USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS, (B) DIRECT COSTS OR EXPENSES, INCLUDING BUT NOT LIMITED TO, LAWYER FEES, (C) CLAIMS OF THIRD PARTIES, EVEN IF GUILLEMOT OR ANY OF ITS AFFILIATED COMPANIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND/OR SUCH LOSS OR DAMAGE WAS REASONABLY FORESEEABLE, EVEN IN CASE OF NEGLIGENCE.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, NEITHER GUILLEMOT, EACH OF ITS AFFILIATED COMPANIES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, OR REPRESENTATIVES, WILL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF DR, OTHER SHOPPER, OR OTHER USER OF THE WEB SITE.
Certain laws may not allow limitations on implied warranties or the exclusion or limitation of certain damages; solely to the extent that these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.
You commit to indemnify, defend and hold harmless each of Guillemot and its affiliated companies, providers and all of their respective agents, directors, officers, employees, information providers, service providers, suppliers, licensors and licensees, and all other related, associated, or connected persons (collectively, the "indemnified parties") from and against any and all liabilities, expenses and costs, including without limitation reasonable legal fees and expenses, incurred by the indemnified parties in connection with any claim or demand arising out of, related to, or connected with your use of the Web site or your breach of the TOU. You will assist and co-operate as fully as reasonably required by the indemnified parties in the defense of any such claim or demand.
You acknowledge that Guillemot would not have published the Web site if Guillemot would have known that a use of the Web site -in particular, your use- would be or become unfavorable to any of Guillemot, DR, and their respective affiliated companies and, without limiting the foregoing, you commit to indemnify all the other users of the Web site, in addition to the indemnified parties, in case the Web site is temporarily or permanently, in whole or in part, stopped following your non-favorable use.
You agree that in the event of any breach of your obligations under the Section 12 “TERMINATION” of the TOU, Guillemot suffers an irreparable injury, such that no remedy at law shall afford it adequate protection against, or appropriate compensation for, such injury. Guillemot shall be entitled to specific performance of your obligations under these TOU, as well as further relief.
10. PERSONAL INFORMATION PRIVACY
11. UNSOLICITED COMMUNICATIONS POLICY
If you breach any provisions of the TOU or you terminate these TOU, your authorization to use this Web site is automatically terminated and you must immediately destroy any material copied, reproduced, republished, downloaded, captured, or printed from the Web site. You represent and warrant that, in case your authorization to use this Web site is terminated, without limiting the foregoing, you will neither, access to nor use the Web site, in any manner whatsoever, directly or indirectly, and you will promptly destroy all the downloaded files (including at least cached images, Software, and all other files) which are related to the Web site, all the Materials, as well as their electronic or printed copies if any-, and clear your browsing and download history.
The Sections 2, 7, 8, 9, 11, 12, 15, 16, 17, and 18 in the TOU survive indefinitely after the termination of the TOU.
13. THIRD PARTY SITES
The Web site may include links to other Internet sites or resources and businesses operated or controlled by other persons (collectively "Third Party Sites"). Third Party Sites are independent from us, and we have no responsibility or liability for or control over Third Party Sites, their business, goods, services, content, links, webcasting or any other form of transmission, changes, or updates to such sites. Links to Third Party Sites are provided solely for your convenience and the inclusion of any link or advertising does not imply any endorsement by Guillemot. Your use of Third Party Sites and your dealings with the owners or operators of Third Party Sites is at your own risk, and you shall not make any claim against Guillemot arising out of your use of any Third Party Sites, or your dealings with the owners or operators of any Third Party Sites.
14. LINKING, FRAMING AND MIRRORING THE WEB SITE
Guillemot reserves the right to prohibit any link to the Web site, at any time, for any reason, without any prior notice, and without any liability to you or any other person. The framing of the Web site or any of its content in any form and by any method is strictly prohibited. The mirroring of the Web site, in whole or in part, in any form, by any methods, is strictly prohibited.
15. GOVERNING LAW AND JURISDICTION
WE EXCLUDE ALL REPRESENTATIONS AND WARRANTIES THAT ANY PRODUCTS, MATERIALS, FACILITIES, OR SERVICES PUBLISHED ON THIS WEB SITE IS AVAILABLE FOR USE IN THE COUNTRY, PROVINCE, OR STATE WHERE YOU RESIDE, OR THAT THEY COMPLY WITH ANY LEGAL OR REGULATORY REQUIREMENTS OF THE LOCATION WHERE YOU RESIDE. THOSE WHO CHOOSE TO USE THIS WEB SITE DO SO AT THEIR OWN RISK AND ON THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LOCAL LAWS.
THESE TOU (NOT THE DR’S TERMS OF SALE) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF QUEBEC, CANADA (AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN). SHOULD ANY DISPUTE ARISE IN RELATION TO THE CONCLUSION, INTERPRETATION, PERFORMANCE OR TERMINATION OF THE TOU, THE COURTS OF QUEBEC (CANADA) SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL ASPECTS OF THE DISPUTE; AND, THE LAWS OF QUEBEC SHALL APPLY TO DETERMINE WHICH COURT WILL BE COMPETENT OVER ALL ASPECTS OF THE DISPUTE.
16. ESSENTIAL PART OF THE BARGAIN
The parties acknowledge that the disclaimers set forth in Section 7 and limitations set forth in Section 8 are each an essential element of these TOU between the parties and the parties would not have entered into these TOU without such disclaimers and limitations.
Any notice required or permitted under the TOU shall be provided to (a) you to the address and contact information you provided in your Account; (b) us at the address mentioned at the beginning of these TOU. Such notice shall be deemed to have been provided upon personal delivery of the notice or, if notice is sent by certified or registered mail, postage prepaid, five (5) days after the mailing date.
If any court of competent jurisdiction finds any provision of these TOU to be void or unenforceable for any reason, then such provision shall be ineffective to the extent of the court’s finding without affecting the validity and enforceability of any remaining provisions.
These TOU inure to the benefit of the parties. Your rights and obligations under these TOU and in using the Web site are not assignable. We have the right to assign our rights and obligations under these TOU.
The parties agree the TOU is drawn up in the English language. To the fullest extent permitted by applicable law, in the event of any discrepancy between the English language version and any non-English language version of the TOU, the English language version shall prevail.