- This Agreement, which incorporates by reference other provisions applicable to the use of this Website, including, but not limited to, supplemental terms and conditions set forth hereof (“Supplemental Terms”) governing the use of certain specific material contained in this Website, sets forth the terms and conditions that apply to the use of this Website by User. By using Fitzsimmons Creek Hydro L.P. website (other than to read this Agreement for the first time), User agrees to comply with all of the terms and conditions hereof. The right to use this website is personal to each user (“User”) and is not transferable to any other person or entity. User is responsible for all use of User’s account (under any screen name or password) and for ensuring that all use of User’s account complies fully with the provisions of this Agreement. User shall be responsible for protecting the confidentiality of User’s password(s), if any.
- Fitzsimmons Creek Hydro L.P. shall have the right at any time to change or discontinue any aspect or feature of this website, including, but not limited to, content, hours of availability, and equipment needed for access or use.
- CHANGED TERMSFitzsimmons Creek Hydro L.P. shall have the right at any time to change or modify the terms and conditions applicable to User’s use of this website, or any part thereof, or to impose new conditions. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on this website, or by electronic or conventional mail, or by any other means by which User obtains notice thereof. Any use of this website by User after such notice shall be deemed to constitute acceptance by User of such changes, modifications or additions.
- DESCRIPTION OF SERVICESThrough its Web property, Fitzsimmons Creek Hydro L.P. may provide User with access to a variety of resources, including registering areas and information (collectively “Services”). The Services, including any updates, enhancements, new features, and/or the addition of any new Web properties are subject to the TOU.
- EQUIPMENTUser shall be responsible for obtaining and maintaining all telephone, computer hardware, software and other equipment needed for access to and use of this website and all charges related thereto.
- USER CONDUCTUser shall use this website for lawful purposes only. Any conduct by a User that in Fitzsimmons Creek Hydro L.P.’s discretion restricts or inhibits any other User from using or enjoying this website or is inappropriate will not be permitted.
- MEMBER ACCOUNT, PASSWORD, AND SECURITYIf any of the Services requires User to open an account, User must complete the registration process by providing Fitzsimmons Creek Hydro L.P. with current, complete and accurate information as prompted by the applicable registration form. If required, User will also choose a password and a user name. User is entirely responsible for maintaining the confidentiality of User’s password and account. Furthermore, User is entirely responsible for any and all activities that occur under User’s account. User agrees to notify Fitzsimmons Creek Hydro L.P. immediately of any unauthorized use of User’s account or any other breach of security. Fitzsimmons Creek Hydro L.P. will not be liable for any loss that User may incur as a result of someone else using User’s password or account, either with or without User’s knowledge. However, User could be held liable for losses incurred by Fitzsimmons Creek Hydro L.P. or another party due to someone else using User’s account or password. User may not use anyone else’s account at any time, without the permission of the account holder.
- NOTICES REGARDING SOFTWARE, DOCUMENTS AND SERVICES AVAILABLE ON THIS SITEIN NO EVENT SHALL Fitzsimmons Creek Hydro L.P. AND/OR ITS RESPECTIVE SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM THE SERVICES.
- DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
- USER EXPRESSLY AGREES THAT USE OF Fitzsimmons Creek Hydro L.P.’S WEBSITE IS AT USER’S SOLE RISK. NEITHER Fitzsimmons Creek Hydro L.P., ITS AFFILIATES AND PARENT COMPANIES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE WEBSITE.
- THE WEBSITE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
- THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. USER SPECIFICALLY ACKNOWLEDGES THAT Fitzsimmons Creek Hydro L.P. IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER.
- IN NO EVENT WILL Fitzsimmons Creek Hydro L.P., OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THIS WEBSITE, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THIS WEBSITE. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE SITE.
- IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, Fitzsimmons Creek Hydro L.P., NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THIS WEBSITE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.
- FORCE MAJEURE – NEITHER PARTY WILL BE RESPONSIBLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, WAR, RIOT, EMBARGOES, ACTS OF CIVIL OR MILITARY AUTHORITIES, FIRE, FLOODS, ACCIDENTS, SERVICE OUTAGES RESULTING FROM EQUIPMENT AND/OR SOFTWARE FAILURE AND/OR TELECOMMUNICATIONS FAILURES, POWER FAILURES, NETWORK FAILURES, FAILURES OF THIRD PARTY SERVICE PROVIDERS (INCLUDING PROVIDERS OF INTERNET SERVICES AND TELECOMMUNICATIONS). THE PARTY AFFECTED BY ANY SUCH EVENT SHALL NOTIFY THE OTHER PARTY WITHIN A MAXIMUM OF FIFTEEN (15) DAYS FROM ITS OCCURENCE. THE PERFORMANCE OF THIS AGREEMENT SHALL THEN BE SUSPENDED FOR AS LONG AS ANY SUCH EVENT SHALL PREVENT THE AFFECTED PARTY FROM PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.
- MONITORINGFitzsimmons Creek Hydro L.P. shall have the right, but not the obligation, to monitor the content of its WEBSITE, to determine compliance with this Agreement and any operating rules established by Fitzsimmons Creek Hydro L.P. and to satisfy any law, regulation or authorized government request. Fitzsimmons Creek Hydro L.P. shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on Fitzsimmons Creek Hydro L.P. website. Without limiting the foregoing, Fitzsimmons Creek Hydro L.P. shall have the right to remove any material that Fitzsimmons Creek Hydro L.P., in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
- INDEMNIFICATIONUser agrees to defend, indemnify and hold harmless Fitzsimmons Creek Hydro L.P., its affiliates and parent companies and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of Fitzsimmons Creek Hydro L.P. website by User or User’s Account.
- TERMINATIONEither Fitzsimmons Creek Hydro L.P. or User may terminate this Agreement at any time. Without limiting the foregoing, Fitzsimmons Creek Hydro L.P. shall have the right to immediately terminate User’s Account in the event of any conduct by User which Fitzsimmons Creek Hydro L.P., in its sole discretion, considers to be unacceptable, or in the event of any breach by User of this Agreement.
- MISCELLANEOUSThis Agreement and any operating rules for Fitzsimmons Creek Hydro L.P. website established by Fitzsimmons Creek Hydro L.P. constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the Province of British-Columbia, Canada, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.Any rights not expressly granted herein are reserved.
Fitzsimmons CreekBritish Columbia, Canada
Kayakers are welcome to kayak Fitzsimmons Creek. In addition to the freshet period between late May to early August, Fitzsimmons Creek Hydro Limited Partnership will provide flow releases for two weekends (Saturdays and Sundays) annually, for a total of 4 days. The flow releases will occur from 0900 to 1800 hours each day. The amount of flow released will depend on water availability and will be coordinated between the Operator and the kayakers in advance of the weekend.
The Operator will accept no liability for injury to kayakers or for loss of equipment due to kayaking in the bypass reach (between the intake and the powerhouse).
Warning signs have been posted upstream of the intake and near the powerhouse and an audible alarm system is installed at the intake and at the powerhouse to warn recreational kayakers in the bypass reach of sudden changes in flow.
Average, minimum and maximum (m³/s) flows for Fitzsimmons Creek are listed in the table below. Actual creek flow will be verified by the Operator for the time of the booking.