Last Updated: January 5, 2024
The following terms of service ("Terms of Service") form an agreement between TELUS Health (Canada) Ltd. with an office at 25 York Street, Suite 2100, Toronto, Ontario, M5J 2V5, Canada, (hereinafter "Provider", "Us", "We" or "Our") and you. The term "you" or “your” refer to the person or entity using the Platform or receiving any Platform Services. These Terms of Service govern your use (the term ‘use’ will mean access or use, as applicable) of Provider's online platform, including through the mobile and web application (the "App") (collectively the "Platform"). The Platform provides access to wellbeing services (“Wellbeing Services”) and technical and administrative support, if required (“Technical Support Services”), (collectively the “Platform Services”).
NOT MEDICAL ADVICE
The Platform and Platform Services do not provide medical advice. The information provided on the Platform and as part of the Platform Services is for informational and educational purposes only. You should not use the information provided on the Platform and as part of the Platform Services to diagnose, treat, prevent or mitigate any disease, disorder or abnormal physical state or prescribe any medication or treatment for yourself or any other person. For greater certainty, the information provided on the Platform and as part of the Platform Services should not be considered as a substitute for any clinical support system that exists in a healthcare setting. Always consult with your healthcare professional before relying on any information or acting on any recommendations provided as part of the Platform Services or sent to you in any email by the Provider. If you have any healthcare-related questions, please call or see your physician or other qualified healthcare provider without delay.
1.1. Governing Agreement; Term, Termination and Suspension
A copy of these Terms of Service may be downloaded, saved and printed for your reference. As part of the account registration process, you will be required to consent and agree to these Terms of Service. If you do not accept and agree to be bound by these Terms of Service, please do not use the Platform.
These Terms of Service will take effect on the date and at the time you confirm having read, understood and agreed to these Terms of Service, when presented with the opportunity to view and agree to them.
The Provider may immediately terminate, or suspend, these Terms of Service, or cease providing the Platform and Platform Services, at any time: (i) if you do not comply with these Terms of Service; (ii) if necessary to prevent threats to the privacy, security and integrity of your data or the data of any other user(s); (iii) upon termination of the agreement between the Provider and the third party payor that is paying your subscription fee; and/or (iv) to comply with any applicable law or court order.
Either you or the Provider may terminate these Terms of Service as follows: (1) the Provider may terminate these Terms of Service upon 30 days’ written notice to you, by email (at your current email address on file with the Provider) or through the Platform; (2) you may terminate these Terms of Service at any time upon 30 days’ written notice to the Provider, by requesting (by email or through any then-available interfaces on the Platform) that your Account be deleted or deactivated, ceasing use of the Platform and uninstalling and removing all local software components thereof from your systems, including removing the App from your mobile device.
1.2. Privacy Policy
By providing or uploading any of your Personal Information to the Platform, or otherwise permitting the Technical Support Personnel (defined below) to access your Personal Information, you are consenting to the collection, use and disclosure of your Personal Information for the purposes of providing the Platform Services to you and the use, transfer and disclosure set out in the Provider’s Privacy Policy. Use of the Platform Services are also governed by the Provider's Privacy Policy.
Please click here to review our current Privacy Policy, which contains important information about our practices in collecting, storing, using and disclosing your Personal Information, and which is hereby incorporated into and forms a part of these Terms of Service.. Your privacy is important to Us and Our Privacy Policy explains how we collect, use and disclose your content and information and how you can use the Platform Services to share such information with others.
By creating an account or accessing or using the Platform Services you accept and agree to be bound by these Terms of Service and consent to the collection, use and disclosure of your Personal Information as outlined in these Terms of Service and Our Privacy Policy.
The Platform Services are not intended for children under the age of 16. The Provider does not knowingly collect any Personal Information (as defined in the Provider Privacy Policy) from such children as part of the Platform Services. Users under the age of 16 should not use the Platform Services at any time. In the event that the Provider has inadvertently gathered Personal Information from children under the age of 16, the Provider will take reasonable measures to promptly erase such Personal Information from our records.
1.3. Updates to the Terms of Service and Privacy Policy
We reserve the right, at Our discretion, to change, modify, add or remove portions of these Terms of Service at any time. If we decide to make material changes to these Terms of Service, we will notify you. Any notices regarding modifications to these Terms of Service, will be in a written form and provided to you: (i) by the Provider via email (in each case to the address that you provide); or (ii) via the Platform. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. The Provider may also revise other policies, codes or rules at any time, and the new versions will be available on the Provider's website and/or on the Platform. You should periodically check the Platform and the Terms of Service page for updates.
You are not obliged to continue using the Platform Services after a modification to these Terms of Service is made. If at any point you do not agree to any portion of Our Terms of Service, Our Privacy Policy, or any other policy, rule or code of conduct relating to your use of the Platform Services, your license and right to use the Platform and Platform Services shall immediately terminate, and you must immediately stop using the Platform and Platform Services and provide written notice to the Provider that you are terminating these Terms of Service. Your continued use of the Platform Services following any modification shall be deemed to be your acceptance of the modified Terms of Service, and waiver of any additional notice requirements.
The Provider reserves the right to change any information, material or content contained on or provided through the Platform (the "Content") at any time, and from time to time, without notice. Content does not include your Personal Information.
To the extent the Terms of Service conflict with any other Provider terms, policy, rules or codes of conduct, the terms contained in these Terms of Service shall govern.
1.4. Grant of a Limited License to Use the Platform
In consideration of payment to the Provider by you or a third party on your behalf of the applicable fees for the Platform Services as and when due and subject to your agreement and continuing compliance with these Terms of Service and any other relevant Provider policies, the Provider grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license, subject to the limitations, terms and conditions contained in these Terms of Service, to access and use the Platform and Platform Services solely for your own personal and non-commercial purposes. You agree not to use the Service for any other purpose.
As a condition of your use of the Platform, you warrant that: (1) you have reached the age of majority in your jurisdiction of residence; (2) you possess the legal authority to create a binding legal obligation; (3) you will use the Platform in accordance with these Terms of Service; (4) all information supplied by you on the Platform is true, accurate, current and complete; and (5) if you are accessing or using the Platform on behalf of another person or a corporate entity, you represent and warrant that you have the authority to bind such person or entity to these Terms of Service.
The Platform is provided solely (the "Permitted Use") to: (1) give you access to any services offered to you through the Platform, including access to the Wellbeing Services and Technical Services; and (2) provide feedback and otherwise communicate with the Provider in connection with any of the foregoing.
The Provider retains the right to deny access to anyone to the Platform or the Platform Services it offers, at any time and in its sole discretion, if the Provider deems that you have used the Platform in any manner contrary to the Permitted Use or if you have violated any of the terms of this Terms of Service.
The Provider also reserves the right to cancel or terminate your license, your access to the Platform and Platform Services and your Account (as hereinafter defined) in the event that (a) the agreement between the Provider and your employer or other third party pursuant to which the Provider agreed to make the Platform Services available to you is terminated or expires; or (b) the applicable fees for your access to and use of the Platform Services are not paid by you, your company or another third party on your behalf when due.
You will defend, indemnify and hold harmless the Provider, its affiliates and their respective officers, directors, employees, agents, sponsors, licensors, and suppliers from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of your use of the Platform and Platform Services in violation of these Terms of Service.
1.5. No Unlawful or Prohibited Use
You will not, without the Provider’s prior written permission, use the Platform and the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you will not, and will not permit anyone else to: (1) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, license or circulate in any form any part of the Platform or the Content , or ‘frame’, ‘mirror’ or otherwise incorporate the Platform or the Content or any part thereof on any commercial or non-commercial website; (2) access or monitor any part of the Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (3) violate the restrictions in any robot exclusion headers on the Content or the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform; (4) have more than one Account at any given time, or create an Account using a false identity or information, or on behalf of someone other than yourself; (5) have an Account or use the Platform Services if you have previously been removed by the Provider, or have been banned by the Provider from participating in the Platform Services or any portion thereof; (6) use your Account and the Platform Service for any commercial purposes, including without limitation, use your Account or the Platform Service to advertise, or solicit, or transmit any commercial advertisements or commercial messages, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone; (7) use your Account or the Platform Services to engage in any illegal conduct including the unauthorized distribution of copyrighted material; (8) rent, lease, sell, assign, trade, gift, bequeath or otherwise transfer your Account to anyone without the Provider’s written permission, or access or use an Account which has been rented, leased, sold, assigned, traded, gifted, bequeathed, or otherwise transferred from the Account creator without the Provider’s permission; (9) take any action that imposes, or may impose, in the Provider’s discretion, an unreasonable or disproportionately large load on the Platform; (10) deep-link to any portion of the Platform for any purpose; (11) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in the Platform or the Content; (12) use the Platform or the Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by the Provider and only in the exact manner specified and enabled by the Provider ; (13) attempt to assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform or the Content; (14) create derivative works based on the Platform or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or other exploit any part of the Platform or the Content; (15) use the Platform in a manner that violates the rights (including to intellectual property rights) of any third party, including by providing, uploading or transmitting any User Content or Submissions that violate such third-party rights; or (16) use the Platform in any way that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable.
1.6. Accessing the Service
Before accessing or using the Platform, including browsing any Provider website and/or downloading and using any Provider applications, you must agree to these Terms of Service and the Privacy Policy. You may also be required to register an account on the Service (an "Account").
If you use the Service, you represent that you are of the age of majority in the jurisdiction in which you reside or, if you are below the age of majority in the jurisdiction in which you reside, your parent or legal guardian, must expressly consent to your use of the Service in accordance with these Terms of Service and Our Privacy Policy and agree to these Terms of Service and Our Privacy Policy on your behalf. If at any time the Provider becomes aware that you are below the age of majority and the consent of your parent or legal guardian has not been obtained, we reserve the right, at our sole discretion, to suspend or terminate your Account. If you are a parent or legal guardian, and you consent to your child/ward to use the Service, you represent and warrant that your child/ward complies with these Terms of Service.
You must provide all equipment and software necessary to connect to the Platform, including, but not limited to, a mobile device that is suitable to connect with and use the Platform, in cases where the Platform offers a mobile component.
In most instances a third party (e.g., such as an employer or supplemental health insurance provider) has arranged with the Provider to pay the subscription fee associated with accessing the Platform (which would result in no charge to you).
If you access the Platform from your employer's account, you shall comply with your employer's terms of service/use as well as these Terms of Service.
You are responsible for any fees, including internet connection or mobile fees, that you incur when accessing or using the Platform.
1.7. Platform Services and Limitations
Wellbeing Services
The Wellbeing Services enable you to record what you eat and your exercise, track your health and fitness progress, schedule events and motivate other users (the “Wellbeing Services”). You acknowledge that the Platform Services are voluntary, and by accessing and using the Platform to access Wellbeing Services, you consent to receiving the Wellbeing Services. The Wellbeing Services do not provide you any medical advice or diagnosis. The information available through the Wellbeing Services and from any other service provided to you directly by the Provider or a third party working with the Provider should not be used to make any medical diagnosis or decisions, and is only to be used for educational and informational purposes.
Technical Support Services
You may engage with our team of client service managers, and care / case managers ("Technical Support Personnel") who may perform support tasks related to your account including, but not limited to, changing your login email, identifying your reason for engaging, and verifying the status of your account, (collectively the "Technical Support Services"). Technical Support Personnel do not provide Wellbeing Services and only provide Technical Support Services that are administrative or technical in nature.
Limitations
The Platform Services and Content provided through the Platform should not be used or relied on for medical advice or opinions, nor does it contain or constitute medical advice or opinions. Always consult with a doctor or other recognized medical professional before starting a diet or fitness program or if any training or dieting is causing pain or serious discomfort. We cannot and do not guarantee any health, weight and/or fitness results or improvements as a result of using the Platform Services.
If you have a condition that requires medical treatment, or are pregnant and/or breastfeeding/lactating, have an eating disorder, you may not use the Platform Services without an approval from your physician or other licensed health adviser.
You must immediately stop using the Service if you are not able to comply with the foregoing restrictions.
Technology Risks
You understand, acknowledge and agree that the Provider does not control, and accepts no responsibility for, any content passing through the Internet, the availability of the Internet generally, or for Internet connectivity. You understand, acknowledge and agree that the Internet is inherently risky even if reasonable security measures are taken. You understand, acknowledge and agree that the Provider cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform but have implemented security controls, as well as, reasonable administrative, technical and physical safeguards in an effort to protect against unauthorized access, use, loss, modification and disclosure, of Personal Information in the Provider’s control and adhere to generally accepted industry practices with respect to securing the transmission of data to, from and through the Platform.
Although reasonable encryption technology and other reasonable security protocols will be implemented to protect your Personal Information, you acknowledge by using the Platform that there are inherent risks to any technology that could cause security protocols to fail or be breached, which could result in the unauthorized collection, use or disclosure of your Personal Information. The Provider will notify you to the extent required by law of any breach that has resulted in the unauthorized collection, use or disclosure of your Personal Information or User Content.
1.8. Account Information
When creating or updating an Account on the Service, you are required to provide Us with the personal information described below and this information will be collected, held, used and disclosed in accordance with Our Privacy Policy. You agree that you will supply accurate and complete information to establish your Account and that you will update that information promptly after it changes.
1.9. Username and Password
When you create an Account you will be required to provide: i) your legal full name; ii) a valid email address; iii) a password created by you; and iv) any other mandatory information requested in order to create your Account (collectively, "Login Information"). The following rules govern the security of your Login Information:
The Provider reserves the right to disable any Account issued to you at any time in the event of a breach of any of your warranties, representations or obligations under these Terms of Service. If the Provider disables access to an Account issued to you, you may be prevented from accessing the Platform, the Content, your account details, or any User Content.
We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party's rights or where the Provider, in its sole discretion, deems a username to be offensive or inappropriate.
2.1. Platform and Content
As between you and the Provider, all Content, including without limitation any designs, infrastructure, texts, pictures, video, graphics, illustrations, titles, applications, software, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, logos, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, documentation, transcripts, character profile information, recordings and other materials, and the selection and arrangement thereof, as displayed or made available on or through the Platform, including the App, are copyrighted works owned by the Provider or licensed to the Provider, and are protected by copyright, trademark and other intellectual property laws.
The Provider and its licensors expressly reserve all rights in the Platform, including the App, and all materials provided by the Provider in connection with these Terms of Service that are not specifically granted to you. You acknowledge that all right, title and interest in the Platform, all materials provided by the Provider in connection with these Terms of Service (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with the Provider (or third party suppliers, if applicable), and that the Platform, including the App, and all materials provided by the Provider hereunder are licensed and not ‘sold’ to you.
2.2. Accounts
THE PROVIDER RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
2.3. User Content
"User Content" means any communications, messages, comments, photos, videos, images, sounds, data, information and other content or material that you upload or transmit to or through the Platform, or that other users upload or transmit, including without limitation any chat text.
By transmitting or submitting any User Content while using the Platform and Platform Services, you affirm, represent and warrant that such User Content is (a) accurate and not confidential; (b) not in violation of any applicable laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content to transmit or submit such User Content and grant the license granted in this section by you to the Provider; (c) not threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable and will not cause injury to any person or entity; and (d) free of viruses, adware, spyware, worms or other malicious code.
Subject to these Terms of Service and the terms of the Privacy Policy, you grant the Provider a transferrable, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, store and use any User Content that: (1) you load, transmit to or enter into the Platform, or (2) the Platform collects, retrieves or obtains from your local computer system or from third parties with your permission or on your behalf, and (in each case) including all results from processing such data, including compilations, and derivative works thereof for the purposes of: (A) providing the Platform Services to you and other users within your organization, (B) complying with applicable law, (C) reasonable audit and data retention policies, and (D) to the extent that the data is anonymous and non-identifiable, for research and analytical purposes and to operate and expand our business opportunities.
2.4 Submissions
By submitting any reviews, questions, comments, suggestions, ideas or similar information through the Platform in connection with the Platform Services, (collectively, "Submissions"), you grant the Provider and its affiliates, a royalty free, worldwide, transferable, sublicensable, irrevocable, perpetual license to: (1) use, reproduce, edit (length, size or clarity), translate, distribute, publish, create derivative works from and publicly display such Submissions in any media; and (2) use the name that you submit in connection with such Submission. You acknowledge that the Provider may choose to provide attribution of your Submissions (for example, listing your name and city on a review that you submit) at Our discretion, and that such submissions may be shared with others using the Platform. You acknowledge and agree that Submissions are non-confidential and non-proprietary. You also acknowledge that the Provider may exercise its rights (e.g. use, publish, delete) to use any Submissions without any notice to you.
The Provider takes no responsibility and assumes no liability for any Submissions posted or submitted by you. The Provider has no obligation to post your Submissions and reserves the right, in its absolute discretion, to determine which Submissions are published on the Platform. You are fully responsible for the content of your Submissions, including reviews posted to the Platform. Without limiting the foregoing, you will not post or transmit to or from the Platform any commercial material or content (including solicitation of funds, advertising, or marketing of any good or services), or upload to or transmit through the Platform any User Content or Submissions that is offensive, hateful, obscene, defamatory or violates any applicable laws, in each case as determined by the Provider in its sole discretion. You will be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Platform.
If you do not agree with any of the above, please do not provide any Submissions.
2.5 Monitoring; Suspension and Termination
The Provider reserves the right, but is not obligated, to (without notice or liability to you):
You understand that the Platform Services may evolve over time. The Provider may require that you accept updates to the Platform Services. You acknowledge and agree that the Provider may update the Platform Services with or without notifying you. You may need to update third party software from time to time in order to continue receiving the Platform Services.
4.1. Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE PLATFORM, PLATFORM SERVICES AND CONTENT ARE AT YOUR SOLE RISK AND ARE PROVIDED ON AN "AS IS" “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROVIDER DOES NOT MAKE AND DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, PLATFORM SERVICES OR THE CONTENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, TIMELINESS OR FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, NEITHER THE PROVIDER NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF ITS DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, SUPPLIERS OR LICENSORS (COLLECTIVELY, “PROVIDER PARTIES”) WARRANT THAT THE PLATFORM, PLATFORM SERVICES OR THE CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR WILL ALWAYS BE SECURE, FREE OF OMISSIONS OR INACCURACIES; NOR DO PROVIDER PARTIES MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE PLATFORM, PLATFORM SERVICES OR THE CONTENT, OR AS TO THE ACCURACY, RELIABILITY, CURRENCY OR COMPLETENESS OF ANY CONTENT, PRODUCTS OR SERVICES PROVIDED OR MADE AVAILABLE THROUGH THE PLATFORM OR THE PLATFORM SERVICES. PROVIDER PARTIES DOES NOT GUARANTEE THE QUALITY, SUITABILITY OR SAFETY OF THE WELLBEING SERVICES OR THE TECHNICAL SUPPORT SERVICES.
4.2. Limitations; Waivers of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE PLATFORM, PLATFORM SERVICES OR THE CONTENT UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS OF BREACH OF WARRANTY, BREACH OF CONTRACT,TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY, AND THAT THE PROVIDER PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES, WHETHER OR NOT THE PROVIDER PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN ANY WAY WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF, OR INABILITY TO USE, THE PLATFORM, PLATFORM SERVICES OR THE CONTENT.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE PROVIDER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PROVIDER PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE PLATFORM, PLATFORM SERVICES OR THE CONTENT, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE PLATFORM, PLATFORM SERVICES AND CONTENT, AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
WITH RESPECT TO ANY DIRECT DAMAGES, YOU AGREE THAT THE TOTAL AGGREGATE LIABILITY OF THE PROVIDER PARTIES IN CONNECTION WITH OR UNDER THESE TERMS OF SERVICE OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM, PLATFORM SERVICES OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF, OR INABILITY TO MAKE USE OF, THE PLATFORM, PLATFORM SERVICES OR THE CONTENT IS LIMITED TO $20.00 OR THE AGGREGATE AMOUNT OF THE FEES PAID BY YOU, OR ON YOUR BEHALF, FOR A THREE MONTH SUBSCRIPTION, WHICHEVER IS GREATER. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF SERVICE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU, OR A THIRD PARTY ON YOUR BEHALF, HAVE NOT PAID PROVIDER ANY AMOUNTS IN THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH PROVIDER IS TO STOP USING THE PLATFORM, PLATFORM SERVICES AND CONTENT, AND TO CANCEL YOUR ACCOUNT.
THE LIMITATION ABOVE REFLECTS THE ALLOCATION OF RISK BETWEEN YOU AND PROVIDER. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS IN SECTIONS 4.1 AND 4.2 MAY NOT APPLY TO YOU.
5.1. Severability
You and the Provider agree that if any portion of these Terms of Service is found illegal or unenforceable in any jurisdiction, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms of Service, which shall continue to be in full force and effect.
5.2. Law and Forum for Legal Disputes
Any dispute arising out of or related to these Terms of Service or the Platform or the Platform Services shall be governed in all respects by the laws of the Province of Ontario, Canada, without regard to conflict of law provisions. You agree that any claim or dispute you may have against the Provider must be resolved exclusively by a court located in the City of Toronto, Ontario, Canada, except as otherwise agreed by the parties. You agree to submit to the jurisdiction of the courts located in the City of Toronto, Ontario, Canada for the purpose of litigating all such claims or disputes.
5.3. Assignment
The Provider may assign these Terms of Service, in whole or in part, to any person or entity at any time with or without your consent. You may not assign any rights or obligations under these Terms of Service without the Provider’s prior written consent, and any unauthorized assignment by you is ineffective. Subject to the foregoing, these Terms of Service will inure to the benefit of the parties, their successors and permitted assigns.
5.4. Supplemental Policies
The Provider may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
5.5. Entire Agreement
These Terms of Service, any other applicable Provider policies and any documents expressly incorporated by reference herein (including the Provider Privacy Policy), contain the entire understanding of you and Provider with respect to the Platform and Platform Services, and supersede all prior understandings of the parties hereto relating to this subject matter, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Us with respect to the Platform and Platform Services. Any headings or titles herein are for convenience only.
5.6. No Waiver
The failure of the Provider to require or enforce strict performance by you of any provision of these Terms of Service or the Provider Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of the Provider's right to assert or rely upon any such provision or right in that or any other instance.
The express waiver by the Provider of any provision, condition, or requirement of these Terms of Service or the Provider Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Except as expressly and specifically set forth in these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by the Provider shall be deemed a modification of these Terms of Service nor legally binding, unless documented in writing and signed by You and a duly appointed officer of the Provider.
5.7. Notices
We may provide notices to You with respect to the Platform and Platform Services and these Terms of Service via postings on your company Provider deployment site (i.e. https//companyname.sproutatwork.com), and via e-mail or any other communications means sent to the contact information you provide to us. You acknowledge and agree that copies of such notices may also be given to your company or third party paying for the Platform and Platform Services on your behalf in accordance with the notice provisions of the agreement between the Provider and such party. All notices given by you or required from you under these Terms of Service or the Provider Privacy Policy shall be in writing and addressed to: 25 York Street, Suite 2100, Toronto, Ontario, M5J 2V5, Canada or to such other address as Provider may notify you in writing.
5.8. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to the Provider are of a unique and irreplaceable nature, the loss of which may irreparably harm the Provider and which cannot be replaced by monetary damages alone so that the Provider shall be entitled to seek injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
5.9. Force Majeure
The Provider shall not be liable for any delay or failure to perform resulting from causes or circumstances outside the reasonable control of the Provider, including without limitation, acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, denial of service attacks, power failures, Internet service provider failure or delay, or shortages or unavailability of transportation facilities, fuel, energy, telecommunications, labor or materials.
5.10. Customer Service and Technical Support
Customer service and technical support is available via email, in French and English, at support@sproutatwork.com in accordance with the Provider’s support terms and conditions in effect from time to time.
5.11. Distribution of Third Party Content
The Provider is a distributor (and not a publisher) of content supplied by third parties and users. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of the Provider. The Provider does not guarantee the accuracy, reliability, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose.
5.12 Links to Third-Party Websites; Viruses
The Platform may provide links to third-party websites. These links are provided for your convenience only and the Provider does not control or endorse the information contained on such websites and is not responsible or otherwise guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. Please read the terms and conditions of use and privacy policies of any third-party website you may link to from the Service. If you decide to access any third-party site linked to the Platform Services, you do so at your own risk. The Provider reserves the right to terminate any such link at any time. The Provider disclaims all warranties, express and implied, including as to the accuracy, reliability, validity and legality of any materials or information contained on such third-party websites.
The downloading and viewing of Content is done at your own risk. The Provider cannot and does not guarantee or warrant that the Platform or the Content are compatible with your computer system or that the Platform or the Content, or any links from the Platform or the Content, will be free of viruses, worms, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Platform.
