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, (Ontario) (together with all regulations and amendments to the foregoing, the "Act").
A. Tarion owns and operates the BuilderLink™ online service for vendors and builders (collectively, including the BuilderLink™ website, portal, BuilderLinkTM Mobile and all services, applications, resources and other content, information, text, images, data, code, tools, correspondence and materials available through the builderlink.tarion.com domain or the BuilderLink™ mobile app and any subdomains and country-specific domains and subdomains thereof, (collectively "BuilderLink™")).
B. BuilderLink™ is a self-serve environment for new home vendors and/or builders and other authorized persons that enables them to, among other things:
- access select information made available by Tarion for informational and educational purposes, including information about warranty coverage and Tarion's policies and procedures;
- access select information in Tarion's records, including relevant enrolled homes, statutory warranty-related activities of applicable homeowners and relevant customer service standard requirements, timeframes and appointments;
- process other matters, including enrolling homes and updating home information, scheduling inspections and generally attending to investigation and resolution of homeowner warranty claims;
- process authorized transactions relating to, among other things, vendor and/or builder registrations, renewals of registration, payments, posting of security, review and release of security, builder education, performance-based pricing and review of select information; and
- participate in such other matters as Tarion may, in its sole discretion, permit to be conducted via BuilderLink™ from time to time.
(collectively "BuilderLink™ Activities").
- an administrator (an "Administrator") appointed in writing by one or more vendor(s) and/or builder(s) (each, a "Vendor/Builder") to access and use BuilderLink™ in a form satisfactory to Tarion (the "Appointment") or an adhesion agreement thereto (an "Adhesion Agreement"), or a user who accesses and uses BuilderLink™ with the permission of an Administrator (a "Permitted User"); and
1. IDENTIFICATION AND AUTHORIZATION. You hereby represent, warrant and covenant that:
(a) as an Administrator or a Permitted User:
you have been expressly authorized to access and use BuilderLink™ by the Vendor/Builder and, in the case of a Permitted User, by an Administrator;
in the case of the Vendor/Builder's payments Administrator (the "Payments Administrator"):
if you use your own bank account to pay any amounts owing by the Vendor/Builder to Tarion via pre-authorized debit ("PAD"), you are the legal and beneficial owner of such bank account and are making such payments on the Vendor/Builder's behalf; and
you shall not use any bank account to pay an amount owing by the Vendor/Builder to Tarion via PAD, other than your own bank account, the bank account of a Vendor/Builder or the bank account of a third party who has executed and delivered a PAD agreement in a form satisfactory to Tarion; and
by clicking the "I agree" button, signing an Appointment or Adhesion Agreement or using and/or accessing BuilderLink™, you have duly executed and delivered this Use Agreement, which constitutes a valid and binding obligation enforceable against you in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency or other legislation affecting creditors' rights, generally; and
(b) as the Vendor/Builder:
- you are a vendor and/or builder of new homes;
- you are operating in the Province of Ontario;
- you were registered with Tarion as of the date of the Appointment or Adhesion Agreement;
- you hold the vendor/builder number (the "Registration Number") specified in the Appointment or Adhesion Agreement;
- you have the necessary corporate power, authority and capacity to perform your obligations under this Use Agreement and your entry into this Use Agreement has been duly authorized by all necessary corporate action on your behalf;
- each Administrator and any Permitted User(s) have full power and authority to bind you and you hereby authorize and direct Tarion to deal with: (1) each Administrator in respect of all matters relating to BuilderLinkTM for which s/he has been appointed, including, in respect of the Payments Administrator, any PAD agreements and authorizations; and (2) any Permitted User(s) in respect of all matters relating to BuilderLinkTM to which their BuilderLinkTM access rights extend, as set by an Administrator; and
by clicking the “I agree” button, signing an Appointment or Adhesion Agreement or using and/or accessing BuilderLinkTM, you have duly executed and delivered this Use Agreement, which constitutes a valid and binding obligation enforceable against you in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency or other legislation affecting creditors’ rights, generally.
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 BuilderLink™ (including any updates, enhancements or modifications to BuilderLink™ made available by Tarion to you from time to time) on an as-available basis via the Internet, solely in object code format and for the purpose of carrying out your or your Vendor/Builder's BuilderLink™ Activities (the "Authorized Purpose"). Your right to use BuilderLink™ is limited to those rights expressly set out in this Use Agreement.
3. RESTRICTIONS ON USE. You shall: (a) not use BuilderLink™ for any purpose other than the Authorized Purpose or alter, damage or destroy BuilderLink™ or any data or information contained therein or other component(s) thereof; (b) not reproduce BuilderLink™ except to download, print and/or store such reasonable copies of the content available on BuilderLink™ 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 sublicense to use BuilderLink™ 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 BuilderLink™ (e) not use BuilderLink™ to operate a service bureau, drive traffic to your or any third party website for personal or commercial gain or otherwise use BuilderLink™ except as authorized herein; (f) not network BuilderLink™ or otherwise access BuilderLink™ from more than one computer, per user ID or password, at any one time; (g) use BuilderLink™ in accordance with any minimum hardware, software and/or system requirements set out therein; (h) not use BuilderLink™ 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; (i) observe all security features on BuilderLink™ and not disable, bypass, defeat or circumvent (or permit a third party to disable, bypass, defeat or circumvent) any such security features; (j) 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 BuilderLink™ in any way that might, in Tarion's sole discretion, subvert or conflict or interfere with the integrity, reputation, security or operation of BuilderLink™, any component(s) thereof or the system(s) from which BuilderLink™ is being made available; (k) not use any robots, bots, spiders, web crawlers, data or text, mining software or other automated tools or data gathering or extracting applications to collect data or information other than your information from BuilderLink™ (l) provide Tarion with accurate, complete and up-to-date information when completing an Appointment or Adhesion Agreement for, or submitting User Submissions (as defined below) to, BuilderLink™ (m) not use BuilderLink™ if you are a minor; (n) comply with all password selection guidelines issued by Tarion from time to time; and (o) take all reasonable precautions to prevent third parties from using BuilderLink™ or your name, Registration Number, 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. Any evidence of the foregoing may be disclosed by Tarion to law enforcement authorities and result in criminal prosecution under the laws of Canada and/or such other jurisdictions as may apply.
4. USER SUBMISSIONS. BuilderLink™ provides various services that permit you and other users to submit and/or post using BuilderLink™ certain data, forms, documents, correspondence, images, links and other information and materials that may or may not be viewed by you, Tarion, your homeowners or other third parties (collectively, "User Submissions"). You acknowledge that you are responsible for the User Submissions that you submit and/or post on BuilderLink™ 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 grant to Tarion and its affiliates and their respective directors, officers, employees, members, agents, advisors, consultants, contractors and users (collectively, "Representatives") a limited, worldwide, perpetual, irrevocable, non-exclusive, royalty-free right to use, reproduce, display, publish, distribute, communicate, modify, upload, sublicense and create derivative works of any User Submissions, in any medium whatsoever, for the purpose of operating BuilderLink™, administering the Act and carrying out Tarion's operational, regulatory and consumer protection activities.
You hereby represent, warrant and covenant that: (i) you have the right(s) required to grant the license 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 BuilderLink™ without notice to you if you breach any of the foregoing representations, warranties and covenants, without any liability for such removal.
Tarion may review or monitor User Submissions that are submitted and/or posted on BuilderLink™. 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 BuilderLink™ in any area. Tarion shall have the right (but not the obligation) in its sole discretion to refuse, move or remove any User Submissions. 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 BuilderLink™. Tarion may, in its sole discretion, use any evidence of your use of BuilderLink™, 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 BuilderLink™, its administration of the Act and its regulatory and consumer protection activities.
Tarion deletes User Submissions and other information provided to it in accordance with its business policies and procedures and in accordance with applicable law. BuilderLinkTM is not a means of storing information or documents for future retrieval or use by vendors 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 others and there is no expectation that Tarion will provide or make accessible copies of any such information.
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 BuilderLink™ ("Third Party Service Providers") and for their compliance with this Use Agreement. Without limiting the foregoing, you shall not permit any Third Party Service Provider to access and/or use BuilderLink™ 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. 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, 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 BuilderLink™, its constituent parts, and any materials, logos, names and other supporting materials provided to you by Tarion in connection with BuilderLink™. No title to the intellectual property rights in BuilderLink™, or any supporting materials provided to you by Tarion in connection with BuilderLink™, 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 trade-marks, trade names, logos, product names, service names or icons featured on BuilderLink™ (the "Marks"), which are the property of their respective owners. Without limiting the generality of the foregoing, the display of the Marks on BuilderLink™ does not convey or create any license or other rights in the Marks and any unauthorized use of the Marks is strictly prohibited. The display of any third party Marks on BuilderLink™ does not imply any relationship or license between Tarion and such third party or any endorsement by Tarion of such third party's wares, services or business.
7. LINKS. BuilderLink™ 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 BuilderLink™ (collectively, "BuilderLink™ Resources") are not intended as a source of educational, professional, administrative, legal or other advice. BuilderLink™ 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 BuilderLink™ 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 BuilderLink™ (c) User Submissions that are contributed to BuilderLink™ 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 BuilderLink™. You should consult the Act, the applicable Tarion builder bulletins and construction performance guidelines and other Tarion publications before making any decision or taking any action that might affect the satisfaction or performance of your or your Vendor/Builder's BuilderLink™ Activities and/or legal obligations, including your obligations under the Act.
9. NO WARRANTY. BuilderLink™ (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 BuilderLink™ is with you. Without limiting the generality of the foregoing, Tarion does not warrant that: (a) BuilderLink™ will be accurate, complete or up-to-date; (b) defects or errors in BuilderLink™ will be corrected; (c) there will be no modification, disclosure or destruction of, or unauthorized access to, BuilderLink™, including any User Submissions; or (d) the operation of BuilderLink™ 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, BuilderLink™ 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 (including, in the case of the Vendor/Builder, your Administrators' and/or Permitted Users') or your Third Party Service Providers': (a) use of BuilderLink™ (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 any Third Party Service Provider 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, BuilderLink™ , any User Submissions or any Third Party Service Provider Agreement.
13. BUILDERLINK™ SECURITY.
(a) As a Vendor/Builder, you shall designate your representatives to be the Administrators for BuilderLink™ and shall notify Tarion of such Administrators' names and email addresses in an Appointment. If any Administrator ceases to be your representative during the term of this Use Agreement, you shall immediately appoint a new Administrator and notify Tarion by fax at (416) 229-3843 or by email to email@example.com of the name and email address of such new Administrator, and provide Tarion with a copy of an Adhesion Agreement signed by such new Administrator in accordance with the terms of the Appointment. It may take up to two (2) Business Days for Tarion to create, delete or change Administrator access.
(b) Subject to the terms of this Use Agreement, each Administrator may designate one or more Permitted User(s) who shall be permitted to access and/or use BuilderLink™, or particular part(s) thereof, in respect of all matters to which their BuilderLink™ access rights extend, as set by such Administrator.
(c) Each Administrator and any Permitted User(s) shall be assigned a separate user ID and password by Tarion and/or an Administrator. Such user ID and password shall only be valid while the Administrator or Permitted User is a representative of the Vendor/Builder. As an Administrator or a Permitted User, you agree to cease all use of your user ID and password and all access to and use of BuilderLink™ immediately if you cease to represent the Vendor/Builder. It is the Vendor/Builder's responsibility to ensure that the Administrators' and any Permitted User(s)' ability to access and use BuilderLink™ is limited to a level of access and use that is appropriate to that individual, and to ensure that any Administrator or Permitted User who ceases to be your representative cannot use or access BuilderLink™.
(d) As between you and Tarion, you shall be responsible for all use of BuilderLink™ made using your name, Registration Number, 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, Registration Number, 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 BuilderLink™ and shall be under no obligation to confirm actual identity or authority to access and/or use BuilderLink™. You agree to immediately notify Tarion of any unauthorized use of your name, Registration Number, user ID(s), password(s), email address(es) or domain name(s) (including subdomains thereof) in connection with BuilderLink™.
(e) The electronic device that you use to access BuilderLink™, 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 BuilderLink™ has an up-to-date anti-virus program, anti-spyware program and firewall. To prevent unauthorized access, you must properly log off from BuilderLink™ as soon as you have finished accessing and using it and immediately close your browser and sign off from any mobile application(s) used by you to access or use BuilderLink™.
14. TERMINATION, MODIFICATION OR SUSPENSION.
(a) This Use Agreement may be terminated by Tarion immediately at any time without notice to you.
(b) Upon the termination of this Use Agreement, you shall immediately cease to access and use BuilderLink™ and shall destroy any copies of BuilderLink™ in your possession or control and provide Tarion, upon request, with written confirmation of such destruction.
(c) 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, BuilderLink™ 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 BuilderLink™, or the part(s) of BuilderLink™ subject to such suspension.
(d) Tarion shall not be liable to you or any third party for any modification or suspension of BuilderLink™ 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.
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 firstname.lastname@example.org and to you at the email address provided when submitting the Appointment or an Adhesion Agreement or being designated as a Permitted User, as applicable. 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 or 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. GUARANTEE. In consideration of Tarion entering into this Use Agreement, the Vendor/Builder hereby unconditionally and irrevocably guarantees, as principal covenantor and not merely as surety, the due performance by the Administrators and any Permitted Employee(s) of all of their obligations hereunder. The Vendor/Builder shall be a co-primary obligator, jointly liable with each Administrator and Permitted Employee to Tarion for any breach of their obligations under this Use Agreement. The Vendor/Builder hereby indemnifies Tarion against any breach by any Administrator or Permitted Employee of its obligations hereunder. The obligations of the Vendor/Builder under this Section 20 may be enforced by Tarion without first having to take any steps or proceedings against an Administrator or Permitted Employee.
21. 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.
22. GOVERNING LAW. BuilderLink™ is provided by Tarion from its offices in Toronto, Ontario, Canada. 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 BuilderLink™ is appropriate or available for use in locations outside of Ontario, Canada and accessing BuilderLink™ from locations where BuilderLink™ is illegal is prohibited. If you choose to access and/or use BuilderLink™ from a location outside of Ontario, Canada, you do so on your own initiative and are responsible for compliance with local laws.
23. 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.
You hereby agree to be bound by all of the provisions of this Use Agreement by clicking the "I Agree" button.
 BuilderLink™ is a trade-mark of Tarion Warranty Corporation.