A. Pursuant to the terms and conditions of this Agreement, COLE LEVITT doing business as DEPTHS OF COMFORT (the “Service Provider”) will license the User (as defined herein) to use the Service Provider’s DEPTHS OF COMFORT program (the “Licensed Program”) for consideration received from the User for use of the Licensed Program.
1.1 Definitions—The parties agree that, in this Agreement, the following terms have the following meanings:
(a) Beta Services: In respect of the Licensed Program, means use of the Licensed Program that is not generally available to customers.
(b) User Content: The electronic data and information submitted by or for the User to the Licensed Program or collected and processed by or for the User using the Licensed Program.
(c) Force Majeure: Any event beyond the reasonable control of a party, including an event of fire, flood, earthquake, pandemic, element of nature or act of God; acts of war, terrorism, rebellions or revolutions in Canada, riots, civil disorders or disobedience, acts of vandalism or other unlawful acts, power failures, or any other similar event.
(d) DEPTHS OF COMFORT: The program licensed for use to the User for stress measurement and as a communication tool.
(e) Term: The time period specified in Section 10.
(f) Use: In respect of the Licensed Program, use means the access of the Licensed Program through a web browser in an educational setting.
1.2 Construction of Agreement—In this Agreement:
(a) words denoting the singular include the plural and vice versa and words importing gender include all genders;
(b) the word “including” shall mean “including without limitation”;
(c) when calculating the period of time within which or following which any act is to be done or step taken, the date which is the reference day in calculating such period shall be excluded, and the last day shall be included, and if the last day of such period is not a business day, the period shall end on the next business day;
(d) all references to currency are to Canadian currency;
(e) words or abbreviations which have well known or trade meanings are used herein in accordance with their recognized meanings;
(f) any reference to a statute shall mean the statute in force as at the date hereof, together with all regulations promulgated there under, as the same may be amended, re-enacted, consolidated and/or replaced from time to time, and any successor statute thereto, unless otherwise expressly provided;
(g) the division of this Agreement into separate Articles, Sections, Subsections and Schedule(s) is for convenience of reference only and shall not affect the construction or interpretation of this Agreement; and
(h) the parties agree that this Agreement shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.
1.3 Parties and Effective Date—This Agreement is between the user of the Licensed Program on this device (the “User”) and the Service Provider.
1.4 Acceptance—YOUR USE OF THE LICENSED PROGRAM ON ANY DEVICE IS SUBJECT TO LEGALLY BINDING TERMS AND CONDITIONS. CAREFULLY READ ALL OF THE APPLICABLE TERMS AND CONDITIONS AS SET OUT BELOW. IF YOU ACCEPT THESE TERMS AND CONDITIONS, CLICK THE “ACCEPT” BUTTON BELOW. THAT ACTION CONSTITUTES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS AND THAT YOU INTEND TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CLICK ON THE “CANCEL” BUTTON BELOW TO EXIT THIS PROGRAM.
1.5 Consent to Electronic Documents—The parties hereby consent to the exchange of information and documents electronically over the Internet or by e-mail and that this Agreement in electronic form shall be the equivalent of an original written paper agreement between the parties.
1.6 Jurisdiction and Language—This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada and shall be treated in all respects as a British Columbia contract, without reference to the principles of conflicts of law. In the event of a dispute, the parties agree to submit to the non-exclusive jurisdiction of the British Columbia courts.
2 TERMS OF FREE TRIAL
2.1 If the User registers on the Service Provider’s website for a free trial, the Service Provider will make the Licensed Program available to the User on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not earlier terminated) or (b) the start date of any subscription purchased by the User. Additional terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER, AND ANY CUSTOMIZATIONS MADE, TO THE SERVICES BY OR FOR YOU, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL UNLESS YOU PURCHASE A SUBSCRIPTION TO THE LICENSED PROGRAM.
2.2 NOTWITHSTANDING SECTION 11 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3 LICENSE GRANT
3.1 The Service Provider hereby grants a license to the User to use the Licensed Program for the Term of this Agreement, subject to the terms and conditions of this Agreement, on any device which the User accesses the Licensed Program.
3.2 The User may not modify the Licensed Program.
3.3 The licenses granted in this Agreement do not grant any ownership or security right or title in any intellectual property right relating to the Licensed Program.
3.4 Sub-licenses—The User has no right to sub-license the use of the Licensed Program.
3.5 The license is non-transferable and is granted specifically for use only by the User through their personal account.
4 LICENSE FEES
4.1 The licenses granted to User under this Agreement are for consideration received from the User for the use of the Licensed Program.
5 USER CONTENT
5.1 The User may only add or create User Content that relates to or describes stressors experienced by students in an educational setting and that is consistent with the purpose of the Licensed Program. As examples only, the User may add User Content that
(a) describes a general school stressor;
(b) describes a social stressor experienced in an educational setting;
(c) describes a deadline or project in an educational setting; and
(d) describes an extracurricular activity experienced in an educational setting.
5.2 The Service Provider does not control any User Content and is not responsible for any actions or conduct that may be found to result from or be caused by User Content.
6 CONSENT TO USE OF DATA
6.2 The User agrees that the Service Provider may collect and use technical data and related information-including but not limited to technical information about the User’s device, system and application software, and peripherals-that is gathered periodically to facilitate the provisions of software updates, product support, and other services to the User (if any) related to the Licensed Program. The Service Provider may use this information, as long as it is in a form that does not personally identify the User, to improve its products or to provide services or technologies to the User.
7 OBLIGATIONS OF THE USER
7.1 The User shall not make any copies of the Licensed Program nor permit anyone else to use, have access to, or copy the Licensed Program other than those that are specifically authorized to be made under this Agreement.
7.2 The User shall only create User Content for a purpose consistent with the Licensed Program (see examples in section 5.1 of this Agreement.)
7.3 Upon termination of this license, the User shall cease all use of the Licensed Program.
7.4 Except to the extent otherwise expressly provided for in this Agreement, the User shall not adapt, translate, re-configure, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Licensed Program in any manner or to any extent whatsoever, whether in whole or in part.
7.5 The User shall not use the Licensed Program on, or in conjunction with, any computer hardware or link to any (or use in conjunction with) any computer program or database other than the computer program platform specified by Service Provider.
7.6 The User shall not be permitted to use the Licensed Program to act as a “service bureau” to provide the benefit of the use of the Licensed Program to third parties.
7.7 The User shall only use the Licensed Program in accordance with any applicable laws.
8 BETA SERVICES DISCLAIMER
8.1 BETA SERVICES ARE PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. DEPTHS OF COMFORT DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITING LIABILITY, DEPTHS OF COMFORT WOULD NOT PROVIDE THE SERVICE TO YOU.
9 UPGRADES/MAINTENANCE RELEASES
9.1 Maintenance Releases and updates to the current version of the Licensed Program licensed to the User under this Agreement are included in the User Fees and will be provided by the Service Provider to the User at no additional charge.
9.2 New Releases and versions are not included in the User Fees and may be provided by the Service Provider at an additional charge to the User.
10 TERM AND TERMINATION
10.1 The term of this Agreement shall commence upon acceptance of these license terms by the User and shall continue until terminated by Service Provider or User as provided in this Agreement.
10.2 Service Provider shall have the right to terminate the Agreement if the User has breached any material provision of the Agreement.
10.3 This Agreement terminates automatically if the User becomes insolvent, files a voluntary petition in bankruptcy or insolvency or a petition for reorganization under any bankruptcy law, the User consents to any involuntary petition in bankruptcy or if a receiving order is given against the User under any bankruptcy law, or an order, judgment or decree is entered by any court of competent jurisdiction, upon the application of a creditor, receiver, trustee or liquidator of all or a substantial part of the User’s assets, and the same has not been discharged or terminated without prejudice to Service Provider’s rights under this Agreement within thirty (30) calendar days.
11 NO WARRANTY
11.1 USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LICENSED PROGRAM IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED PROGRAM AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED PROGRAM AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND / OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, SERVICE PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE LICENSED PROGRAM, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED PROGRAM WILL MEET USER’S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED PROGRAM OR SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT DEFECTS IN THE LICENSED PROGRAM OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED PROGRAM OR SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
12 NO ADVICE
12.1 The Service Provider does not provide advice of any kind. The Service Provider does not endorse or recommend any mental health care provider, therapist, counsellor or treatment through the system, and does not provide any care, advice, or recommendation. The Licensed Program is an educational communication tool only and does not stand in for, or provide any advice. Without limiting the application of any other limitation or exclusion of liability under this Agreement or at law, the User hereby expressly acknowledge and agree that the Service Provider has no liability whatsoever however arising under any theory of law for any advice, result or lack of result from such advice or care obtained from any care provider.
13.1 User shall indemnify Service Provider against all claims (including reasonable legal costs and disbursements) made against Service Provider arising from User’s use of the Licensed Program otherwise than in accordance with this Agreement or applicable laws.
13.2 User shall indemnify Service Provider against all claims (including reasonable legal costs and disbursements) made against the Service Provider arising from the interpretation, application or use of User Content in any manner whatsoever.
14 EQUITABLE RELIEF AND RISK MANAGEMENT
14.1 User acknowledges that any unauthorized use of any intellectual property rights of the Service Provider made or caused by the User or any breach of its obligations of confidentiality will result in irreparable harm to the Service Provider which cannot be adequately compensated for by damages. Neither the User, nor any term in this Agreement, shall interfere with, delay, or prevent the Service Provider from seeking an interim and interlocutory equitable remedy to enforce any provision concerning its intellectual property or confidentiality rights. The User agrees not to oppose an application for equitable relief by the Service Provider in such circumstances. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. User agrees that the provisions of this Section are fair and reasonable in the commercial circumstances of this Agreement.
14.2 Limitation of Liability—SERVICE PROVIDER SHALL NOT BE LIABLE TO THE USER FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR ANY OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WITH RESPECT TO LOSS OF DATA OR PROFITS OR BUSINESS INTERRUPTION) SUFFERED BY THE USER HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S TOTAL LIABILITY AND OBLIGATION TO THE USER, IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND OR NATURE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE LICENSE FEES PAID BY THE USER.
15 DISPUTE RESOLUTION
15.1 Governing Law—This Agreement shall be governed by and interpreted in accordance with the laws of British Columbia.
15.2 Disputes—Excluding (i) the right of either party to apply to a court of competent jurisdiction for an interim or interlocutory injunction or other provisional remedy to preserve the status quo or prevent irreparable harm pending final award of an arbitrator; or (ii) with respect to any disputes that may arise in connection with the ownership of any intellectual property; or (iii) with respect to any disputes that may arise in connection with a breach of a party’s obligations of confidentiality hereunder, shall be finally settled by a single arbitrator in a location to be agreed to by the parties (or if the parties are unable to agree on a location, by the arbitrator), in accordance with the Arbitration Act of British Columbia at such place and time as the arbitrator may fix. A party wishing to pursue arbitration of the dispute shall give notice of arbitration to the other party containing a concise description of the matter submitted for arbitration. Within ten (10) business days after a party gives a notice of arbitration, the parties shall jointly appoint an arbitrator. If the parties fail to appoint an arbitrator within that time, each party shall appoint an arbitrator and the two arbitrators so appointed shall appoint a third arbitrator whose decision shall be final and binding upon the parties. The arbitrator may determine all questions of law and jurisdiction (including questions as to whether a dispute is arbitrable) and all matters of procedure relating to the arbitration. The arbitrator shall have the right to grant legal and equitable relief (including injunctive relief) and to award costs (including legal fees and the costs of the arbitration) and interest. The arbitrator shall be a suitably qualified, impartial person who is experienced in contractual disputes concerning computer law, including technology licensing. The arbitration proceedings shall be conducted in the English language. The written decision of the arbitrator shall be final and binding upon the parties in respect of all matters relating to the arbitration, the procedure, the conduct of the parties during the proceedings and the final determination of the issues in the arbitration. There shall be no appeal from the determination of the arbitrator to any under the Arbitration Act of British Columbia and the rules set forth in this Section. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of any arbitration shall be borne by the parties in the manner specified by the arbitrator in his or her determination. Insofar as they do not conflict with the terms of this Section, the arbitration shall be governed by the Arbitration Act of British Columbia and the arbitrator shall have jurisdiction to take such action and make such orders as are contemplated in such Act.
16 REVERSE ENGINEERING
16.1 The User shall not reverse engineer, decompile or disassemble the object code version of the Licensed Program without the prior written approval of Service Provider.
17 GENERAL PROVISIONS
17.1 This Agreement constitutes the entire agreement between the parties concerning all the matters herein and supersedes all prior agreements, understandings, letters of intent, negotiations and discussions between the parties, whether oral or written.
17.2 This Agreement cannot be amended or modified other than by express agreement of the parties.
17.3 In the event that any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.
17.4 All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing, to the address specified at the beginning of this Agreement or at such other address for notice which may be given by notification of the other party. Notice shall be given by delivery in person or by courier service (with signature required) or by registered or certified mail (postage prepaid, return receipt requested) or by facsimile (and telephoning to confirm receipt). Notice is deemed to be made and effective on the date that the notice is received.
17.5 No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
17.6 If, by reason of Force Majeure, a party is delayed or unable, in whole or in part, to perform or comply with any of its obligations under the Agreement, then, subject to the remainder of this Section, it shall be relieved of liability and shall suffer no prejudice for failing to perform for such time and to the extent that the inability was caused by Force Majeure, provided that such party gives to the other party reasonably prompt notice of such inability. In the event of a Force Majeure, the non-performing party shall use commercially reasonable efforts to remedy the situation and remove the cause of its inability to perform as soon as is reasonably possible.
17.7 Each party shall be acting as an independent contractor in performing its obligations hereunder and this Agreement does not establish a joint venture or partnership between Service Provider and User.
17.8 This Agreement shall be recorded in any and all offices where such recordal is necessary under the laws of the respective country.
17.9 The obligations and covenants of the parties described in this Agreement shall survive the termination of this Agreement for any reason.
17.10 This Agreement is binding on the parties to this Agreement, their successors and assigns.