TERMS AND CONDITIONS OF USE

Tim Hortons Inc. operates the Internet site located at www.EveryCup.ca and Everycup.com (collectively, including all content available on the pages containing the EveryCup.ca domain name, the "EveryCup Website", or "Website"). As used herein, the terms “you”, “your” and “yours” refer to the user or registered user using this Website. The terms ‘Tim Hortons”, “we”, “us” and “our” refer to Tim Hortons Inc. and its related or affiliated companies.


Your continued access and use of the Website is conditional on your acceptance of and continued compliance with the terms and conditions of use set out below (the “Terms and Conditions”). These Terms and Conditions will govern your use of any new features that augment or enhance the current services (together the “Services”), however from time to time, new Services or features may be made available on this Website and you may be required to review and agree to additional terms and conditions and/or download software. Unless otherwise provided by the additional terms and conditions applicable to the new Services you use, the additional terms and conditions are hereby incorporated into these Terms and Conditions. In addition to these Terms and Conditions and any additional terms, the Tim Hortons privacy notice, found at http://www.timhortons.com/en/privacy.html (the “Privacy Policy”) will govern how your personal information will be used on this Website, and together they form the agreement between you and us (the “Agreement”). Nothing in this Agreement will be deemed to confer any third-party rights or benefits. THIS AGREEMENT CONTAINS DISCLAIMER AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.

By accessing, browsing, using and/or downloading the pages in this Website, you agree to accept and comply with this Agreement for each use and visit to this Website. If you do not agree to accept and comply with this Agreement, you should not access, browse or otherwise use this Website.


Tim Hortons reserves the right, at any time, to modify, alter, or update this Agreement, and you agree to be bound by such modifications, alterations, or updates. Such changes, modifications, additions or deletions will be effective immediately upon notice to you, which may be given by any means, including but not limited to posting on this Website or by electronic or conventional mail. You agree to regularly review this Agreement and to be aware of such revisions. Your use of this Website following any such change constitutes your agreement to follow and be bound by this Agreement as changed.


This Agreement applies to all users of the Website. As a user, you represent and warrant that you are either more than the age of majority in your jurisdiction of residence, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. In any case, you affirm that you are over the age of thirteen (13), as the Every Cup website is not intended for children under thirteen (13).


In cases where you have authorized a minor to use the Website, you recognize that you are fully responsible for: (i) the online conduct of such minor; (ii) controlling the minor's access to and use of the Website; and (iii) the consequences of any misuse by the minor. You acknowledge that some of the areas of the Website may contain content that is inappropriate for minors. You acknowledge that Tim Hortons has no obligation to monitor the content accessible on or through the Website.


GRANT AND RESTRICTIONS ON USE


All information, including, without limitation, all text, design, graphics, drawings, photographs, advertisements, video clips, music and sounds, and all trade-marks, service marks and trade names and the selection and arrangements thereof (collectively the "Content") comprised in the Website, excluding any User Submissions as defined below ("Site Content") is, unless otherwise noted, subject to intellectual property rights including copyrights and trade-marks held by or licensed by Tim Hortons. Except as expressly provided in this Agreement, no licence to use, copy, distribute, republish, transmit or otherwise exploit any Site Content is given to you and all intellectual property rights in and to the Site Content are expressly reserved to Tim Hortons.


ACCOUNT


In order to access some features of the Website, you will have to create an account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. By creating an account, you represent and warrant that the information you provide is true and that you will keep it up to date.


You are solely responsible for the activity that occurs on your account, and you must keep your account password confidential and secure. You must notify Tim Hortons immediately of any breach of security or unauthorized use of your account.


Although Tim Hortons will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Tim Hortons or others due to such unauthorized use.


ACCEPTABLE USE


To register for the account you will be required to provide certain personal information including your full legal name; however, when you post a story or comment you are prohibited from displaying your full legal name (i.e., only the user name you selected will be displayed so do not choose a user name that incorporates your full legal name). You are prohibited from transmitting any "sensitive" personally identifiable information over the Website, which may include, but not be limited to, any information about yourself or another person that may relate to health or medical conditions, social security/social insurance numbers or national identifiers, credit card, bank account or other financial information, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious or philosophical beliefs, racial or ethnic origin, or other sensitive matters ("Sensitive Personal Information"). You are also prohibited from: (i) using the Website to send or post harassing, abusive, or threatening messages; (ii) transmitting through the Website any information, data, text, files, links, software, or other materials that are unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, hateful, racially, ethnically or otherwise objectionable, soliciting passwords or personal information for commercial or unlawful purposes, including hidden pages, links or images, providing instructional information about illegal activities, or which threatens our relationships with our partners, customers or suppliers; (iii) attempting to conceal or misrepresent the identity of the sender or person submitting the information; (iv) disrupting the normal flow of the Website, including any dialogue on the Website or otherwise act in a manner that negatively affects other participants; (v) sending spam or other direct marketing communications or posting, transmitting or linking to any unsolicited advertising, promotional materials, or any other forms of solicitation or commercial content; (vi) intentionally or unintentionally performing or promoting any activity that would violate any applicable local, provincial/state, national or international law, including but not limited to any regulations having the force of law while using or accessing the Website; (vii) posting or transmitting executable programming of any kind, including viruses, spyware, trojan horses, easter eggs, or any other form of computer programming or disabling mechanism; (viii) posting User Submissions or using the Website in such a way that damages the image or rights of Tim Hortons, other users or third parties; (ix) use any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from this Website or the Site Content in whole or in part, including, without limitation, creating any frames at any other Websites pertaining to any portions of this Website.


USER SUBMISSIONS AND CONDUCT


As an EveryCup account holder you may submit your story, photos, videos and textual content (collectively referred to as "User Submissions"). You will be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licences, rights, consents, and permissions to use and authorize Tim Hortons to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions and have all necessary consents to collect, use and disclose any personally identifiable information, images or likeness contained or displayed in any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and this Agreement. You agree that you will not submit as part of any User Submission any material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner and the necessary consents from any individuals whose personally identifiable information is contained in such material to post the material and to grant Tim Hortons all of the license rights granted herein.


For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Tim Hortons, you hereby grant Tim Hortons a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, transferable licence to use, reproduce, distribute, sublicence to others, modify, translate, prepare derivative works of, display, and perform the User Submissions in connection with the EveryCup Website and Tim Hortons' business, including without limitation for promoting and redistributing part or all of the EveryCup Website (and derivative works thereof) in any media formats and through any media channels now known or hereafter devised, without any compensation or payment of royalties. You also hereby waive any moral rights you may have in your User Submissions and grant each user of the EveryCup Website a perpetual, irrevocable, non-exclusive licence to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under this Agreement.


Your User Submission is voluntary and subject to the Privacy Policy. You are responsible for the content of the User Submission and agree to defend (at Tim Hortons' option and at your sole expense), indemnify and hold Tim Hortons harmless from any damages, losses, costs, or expenses, including attorneys' fees, which Tim Hortons may incur as a result of your User Submission. If you are viewing this Website on a public computer or are otherwise using a computer to which multiple people have potential access, be sure to follow all relevant instructions to ensure you are sufficiently disconnected and logged off this Website and the computer system you are using to prevent unauthorized User Submissions. Tim Hortons retains the right to review, edit, or delete from this Website any User Submission which Tim Hortons in its sole discretion considers illegal, offensive, or otherwise inappropriate or may infringe the rights of Tim Hortons or any third party without prior notice.


Tim Hortons does not endorse any User Submission or any opinion, recommendation, or advice expressed therein. You also acknowledge and agree that you, and not Tim Hortons, are entirely responsible for your User Submission and that Tim Hortons does not control the User Submissions posted on the Website, as such, does not guarantee the accuracy, integrity or quality of such User Submission. You understand that by using or viewing the Website, you may be exposed to content that is offensive, indecent or objectionable. Tim Hortons expressly disclaims any and all liability in connection with User Submissions.


Due to the volume of responses, it may not be possible for us to respond to or publish every User Submission made to the Website.


ACCESS AND ACCOUNT TERMINATION


Tim Hortons reserves the right to deny or revoke access to this Website, or any part thereof, or to otherwise terminate a user's access to its Website, at any time in its sole discretion, with or without cause and without notice to you.


ACCESS TO SITE


While Tim Hortons endeavors to ensure that this Website is available at all times, Tim Hortons will not be liable if, for any reason, this Website is unavailable at any time or for any period.


DISCLAIMER


THE MATERIALS, INFORMATION AND SERVICES ON THIS WEBSITE ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR OTHER TERMS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TIM HORTONS DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND OTHER TERMS, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), INCLUDING THOSE ARISING BY STATUE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. TIM HORTONS DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE AVAILABLE OR ERROR FREE.


LIABILITY


YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TIM HORTONS , ANY OTHER PARTY (WHETHER OR NOT INVOLVED IN CREATING, PRODUCING, MAINTAINING OR DELIVERING THE SITE) AND THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS AND AGENTS OF TIM HORTONS EXCLUDE ALL LIABILITY AND RESPONSIBILITY FOR ANY AMOUNT OR KIND OF LOSS OR DAMAGE THAT MAY RESULT TO YOU OR A THIRD PARTY (INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OR ANY LOSS OF INCOME, PROFITS, GOODWILL, DATA, CONTRACTS, USE OF MONEY, OR LOSS OR DAMAGE ARISING FROM OR CONNECTED IN ANY WAY TO BUSINESS INTERRUPTION AND WHETHER IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, GROSS NEGLIGENCE OR OTHERWISE) IN CONNECTION WITH THE WEBSITE IN ANY WAY OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE WEBSITE, UNAUTHORIZED ACCESS TO OR ALTERNATION OF YOUR SUBMISSIONS OR DATA, STATEMENTS OR CONDUCT OF ANY THIRD PERSON ON THE WEBSITE, ANY OTHER MATTER RELATED TO THIS WEBSITE AND ANY WEBSITES LINKED TO THE SITE, OR THE MATERIAL ON SUCH WEBSITES, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE DUE TO VIRUSES THAT MAY AFFECT YOUR COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING THE WEBSITE OR YOUR DOWNLOADING OF ANY MATERIAL FROM THE WEBSITE OR ANY WEBSITE LINKED TO THE WEBSITE.


GOVERNING LAW AND ATTORNMENT


This Agreement is governed by and will be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. ANY LEGAL ACTION OR PROCEEDING RELATING TO YOUR ACCESS TO, OR USE OF, THE WEBSITE OR THIS AGREEMENT WILL BE INSTITUTED ONLY IN A PROVINCIAL COURT LOCATED IN ONTARIO, CANADA. YOU AND TIM HORTONS AGREE TO SUBMIT TO THE JURISDICTION OF, AND AGREE THAT VENUE IS PROPER IN, THESE COURTS IN ANY SUCH LEGAL ACTION OR PROCEEDING.

You agree that all disputes or disagreements between you and us relating to this Agreement, the use of this Website in any way, the purchase of any product at this Website or to any related matter (a "Dispute") will be settled by final and binding arbitration by a single arbitrator pursuant to the provisions of the Arbitration Act, 1991, S.O. 1991, c. 17 (Ontario). Judgement upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow. The arbitration will take place in the City of Toronto, Ontario, Canada. There will be no discovery. The arbitrator will not limit, expand or modify the terms of this Agreement nor award damages in excess of compensatory damages permitted under this Agreement, and you waive any claim to such excess damages. The arbitrator will not have any ability to award any equitable remedies against us. The arbitrator will not have the right to award any damages in excess of damages that could lawfully be awarded by a court of competent jurisdiction. The arbitrator will issue a written decision containing findings and conclusions on all significant issues. Each party will bear its own expenses and an equal share of all costs and fees of the arbitration. The content and result of any arbitration will be held in confidence by all participants, each of whom will be bound by an appropriate confidentiality agreement.


WAIVER


The delay or omission by either party to enforce or exercise any terms or right pursuant to this Agreement will not impair any such term or right nor be construed to be a waiver thereof and will in no way affect the other party's right later to enforce it. Any waiver by either party of any covenants, conditions or agreements to be performed by the other party will not be construed to be a waiver of any succeeding breach thereof or any covenant, conditions or agreement herein contained.


FORWARD-LOOKING STATEMENTS


This Website may include forward-looking statements. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts. They often include words such as "believes," "expects," "anticipates," "estimates," "intends," "plans," "seeks" or words of similar meaning, or future or conditional verbs, such as "will," "should," "could" or "may." A forward-looking statement is neither a prediction nor a guarantee of future events or circumstances, and those future events or circumstances may not occur. Actual future results and trends may differ materially depending on a variety of factors including the risks detailed in the company's filings with the Securities and Exchange Commission, including the "Risk Factors" section of Tim Hortons Annual Report on Form 10-K for the most recent fiscal year ended. The company assumes no obligation to update any of these forward-looking statements.


THIRD PARTY LINKS


The EveryCup Website may contain links to third party websites that are not owned or controlled by Tim Hortons. Tim Hortons has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Tim Hortons will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly relieve Tim Hortons from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the EveryCup Website and to read the terms and conditions and privacy policy of each other website that you visit.


MISCELLANEOUS


If any part of these Terms and Conditions is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity or enforceability of any remaining provisions. Any information related to your use of this Website for illegal purposes will be provided to law enforcement authorities. This Agreement constitutes the entire agreement between the parties relating to the use of this Website and supersedes and replaces any prior agreement and communication between the parties relating thereto.


DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA") NOTICE


In operating the Website, Tim Hortons may act as a “services provider” (as defined by DMCA) and offer services as online provider of materials and links to third party web sites. As a result, third party materials that Tim Hortons does not own or control may be transmitted, stored, accessed or otherwise made available using the Website. Tim Hortons has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Website. Tim Hortons has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of Tim Hortons or of a third party, or that has otherwise violated any intellectual property laws or regulations, or these Terms. If you believe any material available via the Website infringes a copyright, you should notify Tim Hortons using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). Tim Hortons will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Tim Hortons designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is: Tim Hortons Inc., 874 Sinclair Road, Oakville, ON L6K 2Y1, attention: General Counsel


Please provide the following notice:

  1. Identify the copyrighted work or other intellectual property that you claim has been infringed;

  2. Identify the material on the Website that you claim is infringing, with enough detail so that Tim Hortons may locate it on the Website;

  3. 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;

  4. A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;

  5. Your address, telephone number, and email address; and

  6. Your physical or electronic signature.

Tim Hortons may give notice to its users of any infringement notice by means of a general notice on any of its websites, electronic mail to a user's e-mail address in its records, or by written communication sent by first-class mail to a user's physical address in its records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

  1. Your physical or electronic signature;

  2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

  3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

  4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.


®Every Cup Tells A Story is a registered trade mark of The TDL Marks Corporation in Canada. Used under license.


©Tim Hortons, 2008-2011