Last updated 10 August 2020
Terms of Business
Azurean Coaching & Consulting, Inc.
1. TERMS OF BUSINESS AND AGREEMENT
1.1. These terms of business and all schedules, appendices, attachments, or similar documents attached to it constitute the entire agreement between you (“Customer”) and Azurean Coaching & Consulting, Inc. (“Service Provider”) (“Agreement”) unless a separate agreement has been signed between the Parties, in which case such separate agreement will solely and exclusively apply. The Customer and the Service Provider are individually referred to as “Party” and together as “Parties”.
1.2. The Customer is deemed to have accepted the terms and conditions of this Agreement if the Customer uses, accesses, accepts the Services, or makes payment for the Services, whichever the earlier.
1.3. This Agreement governs and applies to all Services performed by the Service Provider and materials provided to the Customer pursuant to this Agreement.
2. SERVICES AND PROPRIETARY RIGHTS
2.1. Subject to the Customer’s payment of the fees for the Services and subject to the Customer’s compliance with the terms of this Agreement, the Service Provider agrees to provide the Customer access to the coaching services as set out in Schedule 1 (“Services”). Certain Services are provided to the Customer through or using third party platforms, including but not limited to, Kajabi and Facebook (each a “Third Party Platform”). The Customer agrees that its use of any such Third Party Platforms may be subject to Third Party Platform terms, including but not limited to those set out in Schedule 2 to this Agreement. It is the Customer’s responsibility to comply at all times with any such Third Party Platforms terms. Any breach or non-compliance of any such Third Party Platform terms by the Customer constitutes a material breach of this Agreement.
2.2. The Service Provider will perform the Services in accordance with this Agreement and with the degree of skill, care and diligence expected of a professional performing services of the same kind. The Services will be made available to you without undue delay upon your payment of the relevant fees.
2.3. The Customer acknowledges and agrees that the Services are coaching services and do not in any way constitute psychological therapy or psychological counselling, and the Service Provider expressly disclaims any liability and responsibility in connection with any reliance or consequence of relying on the Services, recommendations, suggestions, proposals and/or any materials provided to the Customer pursuant to this Agreement.
2.4. The Service Provider retains ownership of all intellectual property rights and other proprietary rights in the Services and all work products arising out of or in connection with the Services, including, but not limited to, all materials, ideas, concepts, formats, suggestions, feedback, developments, arrangements, inventions, technologies, packages, programs and other intellectual properties that the Service Provider may develop or create in connection with the Services, but excluding Customer Confidential Information. The Service Provider expressly reserves all rights not expressly granted to Customer in this Agreement. For clarity, suggestions and feedback in this clause 2.4 refers to any feedback that the Customer may provide to the Service Provider in relation to the Services (or any part thereof) for the Service Provider’s consideration for improvement of the Services only.
2.5. If applicable, the Customer agrees to grant the Service Provider a non-exclusive, transferable, sub-licensable, perpetual, worldwide, irrevocable and royalty-free licence to all intellectual property rights in any materials (including results of any personality tests (through Third Party Platforms) completed by the Customer as recommended by the Service Provider as part of the Services (“Personality Test Results”)) provided by the Customer which the Service Provider requires to perform the Services and carry out its obligations under this Agreement, and for the Service Provider’s use in accordance with this Agreement.
2.6. The work products and all other materials provided to the Customer pursuant to this Agreement are for the Customer’s exclusive use (as applicable). The Service Provider expressly disclaims any liability in connection with any use other than by the Customer (as applicable).
3. TERM AND TERMINATION
3.1. This Agreement commences on the date on which the Customer is deemed to have accepted this Agreement in accordance with clause 1.2 of this Agreement and remains in effect until terminated in accordance with this Agreement (“Term”).
3.2. This Agreement is deemed terminated if you have not accessed at least one of the Services at any point in time for the last twelve months.
3.3. If the Customer is in default or is in breach of any of the obligations set out in this Agreement, the Service Provider may suspend or terminate the Services at its discretion.
3.4. Termination of this Agreement will not release the Parties from any liability that, at the time of termination, has already accrued or that thereafter may accrue with respect to any act or omission before termination.
4. FEES AND TAXES
4.1. Fees are in US dollars, payable on or before the commencement of the Term and are non-refundable in any circumstance.
4.2. All fees or other amounts payable under this Agreement are exclusive of any and all applicable sales, use, HST, VAT, GST and other taxes, duties and similar charges. The Customer shall pay any such taxes in addition to the fees or other amounts payable under this Agreement.
5.1. Each Party agrees to protect and keep confidential any Confidential Information provided to it by the other Party. For the purpose of this Agreement “Confidential Information” means and includes: (a) this Agreement and details of the Services, (b) any information or material which is proprietary to the Service Provider or acquired by the Customer solely as a result of the Services, (c) any intellectual property and methodologies and technologies that the Service Provider uses to perform the Services, (d) any information designated as confidential by either Party, (e) Client Information, and (f) any work product, materials and deliverables that the Service Provider provides to the Customer under this Agreement. Confidential Information excludes any information that: (i) is or becomes publicly available, except as a result of a breach of this Agreement, (ii) is disclosed to either Party by a third party provided that the recipient reasonably believes the third party is legally entitled to disclose such information, or (c) was known to a Party before such Party received it from the other Party or is independently developed by such Party.
5.2. Except as set out in this Agreement or as otherwise agreed between the Parties, the Service Provider will only use or disclose Client Information to perform the Services and to be used in connection with this Agreement, and for analytical, statistical and/or research purposes, as part of the Service Provider’s improvement and development of the Service Provider’s services. The Customer agrees that the Service Provider may aggregate results, information and data arising out of the performance of Services (including Personality Test Results and/or other Customer provided materials, information and data) in a de-identified form for research, statistical, analytical and development purposes. The Service Provider may also disclose Confidential Information and Client Information to the Service Provider’s professional advisers on a confidential basis. For clarity, the Customer’s Personality Test Results may be discussed during group coaching calls and/or virtual forums and/or groups, subject to clause 5.3.
5.3. The Customer acknowledges that the Service Provider respects the Customer’s privacy rights and agrees that the Service Provider will not disclose any personal information, Personality Test Results (in a way that identifies the Customer or that a person would reasonably be able connect or associate the Customer with the Personality Test Results), discussions, documents, materials or similar thing that the Customer provides, discusses, discloses or otherwise communicates to the Service Provider in private (or otherwise in any strictly “one on one” discussion or conversation without any third party’s presence), if and to the extent applicable, without the Customer’s consent (“Client Information”), subject always to clause 5.4 of this Agreement. For clarity, despite anything to the contrary in this Agreement or otherwise, the Customer acknowledges and agrees that (and the Customer consents to) the Customer’s questions and discussion in connection with any questions submitted to the Service Provider to be discussed during group coaching calls and/or on virtual forums and/or groups may be heard and/or discussed between the Customer, the Service Provider and other participants of such group coaching calls and/or such virtual forums and/or groups. For clarity, any information disclosed and/or discussed during such group coaching calls and/or such virtual forums and/or groups do not constitute Client Information or Confidential Information. The Customer acknowledges that group coaching calls (and consequently the Customer’s voice and anything the Customer says on such calls) are recorded by the Service Provider through Third Party Platforms, for the purpose of documenting the discussions and making such recordings available on the Service Provider’s website(s) and/or Third Party Platforms as resources as part of the Services made available by the Service Provider’s clients generally. The Customer expressly agrees and consents to such recording of the Customer’s voice and everything the Customer says on such calls and to the Service Provider making such recordings available on the Service Provider’s website(s) and/or Third Party Platforms as resources as part of the Services made available by the Service Provider’s clients generally. If the Customer does not agree to such recording of their voice, the Customer should refrain from speaking on any group coaching calls and instead, provide any questions, comments and responses in writing using the free-text box if such functionality is made available on the Third Party Platforms, for discussion on such group coaching calls.
5.4. Either Party may disclose any Confidential Information if and to the extent required to be disclosed under applicable law, order of any court, tribunal, authority of competent jurisdiction, provided that where practical and if and to the extent permitted by applicable law, the Party required to disclose must notify the other Party of such disclosure requirement and only disclose as much Confidential Information as strictly necessary to comply with applicable law or disclosure requirement.
5.5. Each Party will return or destroy the other Party’s Confidential Information at any time upon request, provided that the Service Provider shall have the right to retain a copy of any such Confidential Information of the Customer and any materials provided by the Customer, including but not limited to Personality Test Results and/or relevant group coaching calls recordings if and to the extent containing recordings of the Customer’s voice, questions, comments and responses), or which forms part of any work products and/or materials delivered by the Service Provider as part of the Services if and to the extent applicable, or otherwise in connection with the performance of the Services under this Agreement, subject always to confidentiality obligations set out in this Agreement.
6.1. The Service Provider expressly disclaims all warranties of any kind or nature, whether express, implied or statutory, including, but not limited to, any warranties of title, non-infringement, accuracy of data or quality, as well as any warranties of merchantability, workmanship, suitability, fitness for a particular purpose, or the absence of any defects or errors therein. The Service Provider does not warrant that the Services will meet Customer’s requirements or that the Services will be error-free. The Services or anything arising from the performance if the Services are coaching and training in nature and the Service Provider expressly disclaims any and all liability in connection with, arising out of, or relating to the outcome, results, reliance, consequences of reliance on the Services. The Service Provider does not guarantee, warrant or represent in any way that the Services will result in or enable the Customer and/or the Client to achieve their expectations or expected outcome.
7.1. Despite anything to the contrary in this Agreement or otherwise, the cumulative and total aggregate liability of the Service Provider arising out of, in connection with or relating to this Agreement will shall be limited to an amount equal to the fees paid by the Customer under this Agreement. In no event will the Service Provider be liable to the Customer for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, even if the Service Provider has been advised of the possibility of such damages.
7.2. The Service Provider is not liable for any losses, damages or failure to perform the Services which are caused by the Service Provider’s reliance on inaccurate, false, misleading or incomplete information, data and/or materials provided by the Customer and/or the Client.
8.1. This Agreement is governed by and construed in accordance with the laws of Ontario, Canada and each Party irrevocably submits to the exclusive jurisdiction of the courts of Ontario, Canada.
8.2. The Service Provider will be excused from any delays in performance of its obligations under this Agreement if such a delay results from compliance with any requirement of applicable law, acts of god, fire, epidemic or pandemic, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of the Service Provider. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
8.3. The Service Provider is an independent contractor and neither Party is an agent or representative of, or has the authority to bind the other Party. Neither Party will act or represent the other Party directly or by implication, as an agent of the other Party or in any manner assume or create any obligation on behalf of, or in the name of, the other Party. This Agreement is not intended to and will not be taken to constitute a partnership, agency, employment, joint venture or fiduciary relationship between the Parties. The Service Provider may modify this Agreement at any time and from time to time upon notice to the Customer and the Customer will be deemed to have accepted any such modifications if the Customer continues using any of the Services. If any provision, or portion thereof, of this Agreement is held unenforceable or invalid by a court of competent jurisdiction, the enforceability of the remaining provisions will not be affected. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof. No waiver under this Agreement will be binding unless set forth in writing and duly signed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay by either Party in exercising any right hereunder will not be deemed a waiver of that right. The rights and remedies in this Agreement are cumulative and not exclusive of any rights or remedies provided by applicable law.
DESCRIPTION OF SERVICES AND SPECIFIC TERMS
The Services include the following:
(a) access to the Service Provider’s course content and all updates thereof as may be provided by the Service Provider from time to time and at any time, at its discretion,
(b) access to group coaching calls offered by the Service Provider on a weekly basis during which questions that you submit prior to the weekly call as instructed by the Service Provider will be addressed,
(c) access to Service Provider-created virtual forums and/or members only dedicated support groups where the Service Provider may discuss topics relevant to members of such virtual forums and/or groups, and
(d) reasonable support in connection with matters relating to the Services that cannot be addressed under (a), (b) or (c), such as technical problems, complaints, suggestions, feedback, etc.
Your access to the Services are made available to you for as long as the Service Provider operates as a business, and on any platform as the Service Provider deems appropriate from time to time. The Service Provider will notify you in the event of any change to the platform and your access to it. The Service Provider may discontinue the Services in the event of a change of control.
You acknowledge and agree that your questions and discussion in connection with any questions submitted to the Service Provider hereunder may be heard and/or discussed between you, the Service Provider and other individuals during such group coaching calls and/or such virtual forums and/or groups. You agree to indemnify, defend and hold the Service Provider harmless from any claims against the Service Provider in connection with, arising out of or relating to your questions, discussions and behavior, including but not limited to any type of abuse, trolling, harassment, misconduct, defamation, insult, libel, injury, slander, unethical, immoral, criminal conduct, etc. If the Service Provider becomes aware that you have done any of those things, the Service Provider reserves the right to suspend, discontinue and/or terminate your access to the Services at the Service Provider’s discretion, without prior notice to you.
Despite the Service Provider’s efforts to maintain an amicable, respectful, non-discriminatory, healthy and professional environment on group coaching calls and virtual forums and/or groups, the Service Provider does not represent or warrant that group coaching calls and virtual forums and/or groups that it hosts are free from unacceptable behavior and conduct by participants. As such, to the extent permitted under applicable law, the Service Provider disclaims all liability and responsibility for and in connection with the behavior and conduct of participants in group coaching calls and/or virtual forums and/or groups, provided that the Service Provider will use its reasonable efforts to monitor participants’ behavior and conduct on its group coaching calls and virtual forums and/or groups and address any unacceptable behavior and conduct as soon as practicable upon becoming aware of such unacceptable behavior and conduct, at the Service Provider’s sole discretion.
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