Revised as of May 6th, 2015
This is an Agreement ("Agreement") between You (as defined below) and Powernoodle Inc. ("Powernoodle", "We", or "Us") that governs Your use of Powernoodle products. If You do not agree with all the terms of this Agreement, please do not accept this Agreement.
Initial representations by You:
You represent that You are acting on Your own behalf, or, if You are acting on behalf of an organization, company, partnership or other entity (collectively, "Entity") that You have authority to bind that Entity.
You represent that You are not in competition with Powernoodle Inc., or acting in any capacity on behalf of any competitor of Powernoodle Inc., and that You will not knowingly invite any Users (defined below) who are in competition with Powernoodle Inc. to participate in any session.
"Application" is Powernoodle Decision Space available online from Us.
"Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business and marketing plans, technology and technical information, financial information, product plans and designs, and business processes.
"Data" means all electronic data or information submitted by You and Users in the Application.
"Documentation" means the online help and related notes for the Application, available from within the Application.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Our Content" means templates and other information prepared by Us or for Us by Our agents, or that We obtain from publicly available sources and provided to You and Users through the Application.
"Users" means individuals whom You authorize by way of an invitation. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business. Where the context requires, "You" also includes "Users."
"We," "Us" or "Our" means Powernoodle Inc.
"You" or "Your" means the person who has clicked "accept" on his/her own behalf, or if accepting on behalf of an Entity, that Entity, including affiliates and subsidiaries over which the Entity has control.
2.1. Protection of Confidential Information. The Receiving Party shall protect Confidential Information with all reasonable care, and will not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, unless otherwise authorized in writing by the Disclosing Party. 2.2 Protection does not extend to non-Confidential Information. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, (iv) is non-specific data that can be generalized and aggregated, or (iv) was independently developed by the Receiving Party.
2.2. Compelled Disclosure. If a Receiving Party receives legal notice to disclose Confidential Information, the Receiving Party must: (i) give notice to the Disclosing Party before disclosing Confidential Information (if legally permitted), and provide reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
3. USE OF APPLICATIONS
3.1. Usage Limits & Restrictions. You and Users agree to the following:
3.1.1. User's subscription may not be shared with any other individual;
3.1.2. Neither You nor Users will make Application available to, or use Application for the benefit of, anyone other than You or Users;
3.1.3. Neither You nor Users may sell, resell, license, sublicense, distribute, rent or lease Application;
3.1.4. Neither You nor Users may use Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
3.1.5. Neither You nor Users may use Application to store or transmit Malicious Code;
3.1.6. Neither You nor Users may copy Application, or any part, feature, function or user interface of the Application;
3.1.7. Neither You nor Users may use Application in order to build or make recommendations to anyone to build a competitive product or service;
3.1.8. You and Users must follow all applicable laws relating to all laws, including privacy.
3.1.9. Neither You nor Users may reverse engineer or attempt to decompile the Application.
3.2. Your Responsibilities. You will ensure that Users comply with this Agreement, (b) be responsible for the accuracy, quality and legality of Data, (c) use commercially reasonable efforts to prevent unauthorized access to Application, and notify Us promptly of any such unauthorized access or use, and (d) use Application only in accordance with the Documentation and applicable laws and government regulations.
4. OUR RESPONSIBILITIES
4.1. Provision of Application. We will make Application available to Users. We will make standard support available to Users. We will make reasonable efforts to advise Users if Application will not be available due to maintenance. We are not responsible for Application not being available due to circumstances beyond our reasonable control.
4.2. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement.
5. FEES & TAXES
5.1. Unless otherwise agreed, You will pay all fees by credit card or within 30 days of invoice date. Once paid, fees are non-refundable.
5.2. Should You permit usage in excess of the agreed number of Users or storage You agree to pay for the amount of the overage.
5.3. If We do not receive payment by the due date, We may charge late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.
5.4. If We do not receive payment by the due date, We may suspend Your, and Users’ use of Application.
5.5. Payment Disputes. We will not exercise Our rights under Subsections 5.3 above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. You are responsible for any and all taxes, duties, associated with Your, and Users’ use of Applications. If We are required to collect taxes, You agree to promptly pay the required amount.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Except as expressly granted to You and Users under this Agreement, We reserve all rights, title, and interest in the Application and Our Content.
6.2. License by Us to Use Our Content. We grant to You and Users a worldwide, time-limited license to use Application and Content, subject to this Agreement and Documentation.
6.3. License by You and Users to Host Data. You and Users grant Us a worldwide, time-limited limited- term license to host, copy, transmit and display Data, and to make use of non-specific aggregated, non-identifiable information.
6.4. License by You and Users to Use Feedback. You and Users grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Content and Applications any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the Application.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2. Our Warranties. We warrant that We will not materially decrease the overall security of the Application during the Term and that the Application will perform materially in accordance with the Documentation.
7.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.1. Indemnification. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Data, or Your use of Application or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a "Claim"), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us. We retain the right to select counsel.
8.2. Removal of Content. If We are required to remove Content, or receive information that Content provided to You or Users may violate applicable law or third-party rights, We may so notify You and remove Content from Application.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT WITH RESPECT TO CLAIMS BROUGHT UNDER SECTION 8, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THIS LIMITATION DOES NOT APPLY TO FEES RELATED TO NON-PAYMENT BY YOU.
9.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. Except as otherwise agreed, this Agreement commences on the date You first accept it and continues for 12 months.
10.2. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if the breach remains uncured at the end of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11. General Terms
11.1. Surviving Provisions. The following Sections shall survive any termination or expiration of this Agreement: Section 2 (Confidentiality); Section 3 (Use of Applications); Section 5 (Fees & Taxes); Section 6 (Proprietary Rights); Section 7 (Representations & Warranties); Section 8 (Mutual Indemnification, to the extent that the Claim arose during the Term); Section 9 (Limitation of Liability); and Section 11 (General Terms). In addition, other sections not specifically names shall survive if needed to give meaning to the above survival sections.
11.2. Notices. Notices shall be provided to Us through: (a) personal delivery to 10 Downie Street, Suite 201, Stratford, Ontario, Canada N5A 7K4, (b) mail delivery; or (c) email addressed to: email@example.com (provided that email notices will be invalid if not acknowledged within 2 business days of delivery). Any notice under this Agreement delivered to Powernoodle must bear, on the envelope (if mailed or couriered) or in the subject line (if emailed) the phrase "Legal Notice". Notices shall be provided to You through email addressed to the email used for Accepting this Agreement. Should that email be unusable or ineffective, You agree to bear all costs of providing notice by courier.
11.3. Governing Law & Venue; Jury Trial. This Agreement shall be governed by the laws of the Province of Ontario, without regard to their conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Any proceeding will be filed in Ontario. You and We waive any right to trial by jury.
11.4. Agreement modifications. We reserve the right to make changes to this Agreement. Any changes will be reflected on this webpage. If You and Users use the Application after the revised terms are posted, You and Users are deemed to have accepted revised terms.
11.5. We have no employment relationship with You or Users. We agree that You and Users and We have no relationship except for independent contractors.
11.6. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. For the purposes of this Agreement, Users are not third-party beneficiaries.
11.7. We are permitted to use Your name and logo as a client on Our website and in marketing materials. If You do not agree, send an email to firstname.lastname@example.org. Your request to not be included in marketing materials will be effective upon acknowledgement by Us.
11.8. Waiver & Severability. No delay or failure by You or Users or Us to exercise rights under this Agreement shall be construed as a waiver of that right. If any part of this Agreement is held to be invalid or contrary to law by a court or other authority with competent jurisdiction, You and We agree to request that the court modify that provision to give it meaning as intended by You and Us.
11.9. Assignment. You may not assign Your rights or obligations under this Agreement, without first obtaining Our written consent.
11.10. Entire Agreement. This is the entire Agreement between You and Us with respect to the Application. No other writing or oral statement may modify this Agreement unless agreed by You and Us, or except as provided in Subsection 11.4.