Last updated February 5, 2018

Welcome to Powernoodle.  These Terms of Use govern Your use of Powernoodle.

YOUR ORGANIZATION MAY HAVE ANOTHER WRITTEN AGREEMENT DIRECTLY WITH POWERNOODLE INC. THAT SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
 

1.     Definitions

a.     Terms of Use

 i.      “Terms” are the online click-through Terms of Use that are agreed to by Facilitators and Participants when they set up their account.

b.    Roles

i.     “Facilitator” is a named person who holds a subscription to access and use the Platform.

 ii.     “Participant” is a person invited by an Facilitator to access the Platform and contribute Content into the Platform.

iii.     "We," "Us" or "Our" means Powernoodle Inc.

iv.     "You" or "Your" means Facilitator or Participant.

c.     Platform and Other Services

 i.     “Content” are templates, Decision Spaces, and Data resident in the Platform whether they are sourced from Powernoodle and/or entered by an Facilitator, and/or entered by Participants.

ii.      “Data” is information entered into the Platform by Facilitators and Participants.

 iii.     “Compiled Data” has the meaning given to it in section 7(b).

iv.      “Decision Space” is the work area inside the Platform that is controlled by an Facilitator.

v.     "Malicious Code" means code, files, scripts, agents or programs intended to gather unauthorized information or otherwise to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

vi.     “Other Services” includes training, design, facilitation, and other services that may be offered by Powernoodle.

vii.     “Platform” is the Powernoodle product, offered and operated as a cloud-based subscription service.

 

2.     Use of Platform

a.     You will access the Platform only by:

  i.     Using a personal account, or

  ii.     Using an access code or a URL address that was provided to You by an Facilitator or their authorized representative.

b.     Your account may not be shared with any other individual;

c.     You may not sell, resell, license, sublicense, distribute, rent, lease, or trade Your access rights;

d.     You may use not use the Platform 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;

e.     You may not use the Platform to store or transmit Malicious Code;

f.      You may not copy the Platform, or any part, feature, function or user interface of the Platform;

g.     You may not use the Platform to build or make recommendations to anyone to build a competitive product or service;

h.     You must follow all applicable laws, including those related to privacy.

i.      You may not reverse engineer or attempt to decompile the Platform.

j.      POWERNOODLE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SUBSCRIPTION AND OTHER SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
 

3.     Authorizing and Terminating Subscriptions

a.     We activate Facilitator subscriptions upon payment of a subscription fee or under other arrangements.

b.     Except as otherwise agreed, all Subscriptions will automatically renew for periods equal to Your initial Subscription Term (and You will be charged at the then-current rates) unless You cancel Your Subscription before your renewal date.

c.     We have the right to limit, suspend and/or terminate Platform access if, in Our reasonable determination, Your use of the Platform is: (a) materially adversely affecting Our facilities or Our ability to provide services to other customers; (b) unlawful, unauthorized or fraudulent; or (c) otherwise in breach of these Terms of Use. If We terminate  Your subscription, You will pay to Us any and all amounts due to Company under the Terms, immediately upon receipt of any applicable invoice,.

4.     Facilitator Responsibilities

a.     It is solely the responsibility of Facilitator

                                      i.     To decide which method of access to use when inviting participants, and

                                    ii.     To inform participants of any relevant policies and practices, terms from these terms of use, and terms from a master agreement that may affect use by participants.

b.     Unless otherwise agreed, new Facilitators must complete training as offered by Powernoodle.
 

5.     Participants

a.     Participant access to Decision Spaces and to Content is authorized by and at the discretion of an Facilitator.

b.    Participant access rights to a Decision Space may be disabled if an Facilitator’s subscription lapses.

c.     There are no subscription fees to or for Participants.

 

6.     Support

a.     Standard support for Platform and Other Services is available during the hours of 9am-5pm ET via our Live Chat interface or via 226-333-9000 (toll free: 1-855-797-6353 (1-855-PWRNDLE)) or via email to support@powernoodle.com.  Extended hours are available as a premium offering and with advance notice.  A knowledge base is also available online. 
 

7.     Data and Content

a.     Facilitator or, as applicable, their organization, owns the Data.

b.     We may use Content for Our internal research, testing and development of improvements or enhancements to the Platform or for the development of new services that provide a more tailored and meaningful experience for users. In doing so, We may compile and analyze, in aggregated and anonymized format, summary information reflecting Content and the use of the Platform by Facilitators and Participants, and may prepare reports, studies, analysis and other work product resulting from this compilation and analysis (collectively the "Compiled Data"). Powernoodle retains ownership rights in and to the Compiled Data.

c.     Powernoodle Platform is owned exclusively by Powernoodle and may include licensed content from partners. Powernoodle represents and warrants that it has the right and authority to grant Facilitators and Participants access rights granted hereunder on the terms set forth in this Agreement and such rights and license shall not infringe the intellectual property rights of any other parties.  The subscription confers no title or ownership and does not represent the purchase or sale of any rights except the right to access, participate in and use Platform and Other Services.
 

8.     Our Responsibilities

a.     Provision of Platform.  We will make Platform available to users.  We will make standard support available to users.  We will make reasonable efforts to advise users if Platform is not available due to maintenance.  We are not responsible for Platform not being available due to circumstances beyond our reasonable control.

b.    Our Personnel.  We will be responsible for the performance of our personnel delivering services (including our employees, partners, and contractors) and their obligations under this Agreement.
 

9.     Your Responsibilities

a.     You will ensure that Facilitators and Participants comply with this Agreement and (a) be responsible for the accuracy, quality and legality of Data, (b) use commercially reasonable efforts to prevent unauthorized access to Platform, and notify Us promptly of any such unauthorized access or use, and (c) use Platform only in accordance with this Agreement, online help, instructions from Powernoodle personnel, and applicable laws and government regulations.
 

10.  Our Proprietary Rights

a.     This is an agreement for access to and use of a subscription service, and You are not granted a license to any software by these Terms. The subscription service is protected by intellectual property laws.

b.     Reservation of Rights. Except as expressly granted to You, Facilitators, and Participants under this Agreement, we reserve all rights, title, and interest in the Platform and Our Content.

c.     License to Use Our Content. We grant to You, Facilitators, and Participants a worldwide, time-limited license to use Powernoodle-owned Content or Content licensed by Us, subject to this Agreement and documentation.
 

11.  Your Proprietary Rights

a.     As between the parties, Facilitator or, as applicable Your organization, owns and retains all rights to Data. These Terms do not grant Us any ownership rights to Data. Subject to Terms, You grant to Powernoodle a non-exclusive, worldwide, royalty-free right to

                                      i.         Collect, use, copy, store, transmit, modify and create derivative works of the Data, in each case to the extent necessary to

1.     Provide the subscription services to You, and

2.     As described in 7(b); and

                                    ii.         Access your account or Data to respond to Your support requests.

b.     License by You to Host Data. You grant Us a worldwide, time-limited limited- term license to host, copy, transmit and display Data.

c.     You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Content and Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by You, Facilitators, or Participants relating to the Platform.
 

12.  Representations

a.     Each party has validly entered into this Agreement and has the legal power to do so.

b.     You are not in competition with Powernoodle Inc., or acting in any capacity on behalf of any competitor of Powernoodle Inc., and You will not knowingly assign Subscriptions to Facilitators or invite Participants to participate in any Powernoodle activity who are in competition with Powernoodle Inc.

c.     You are not using the Platform to build or make recommendations to anyone to build a competitive product or service.

d.    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.
 

13.  Indemnification.

a.     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 Platform 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.

b.     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 all or some Content from Platform.
 

14.  Limitation of Liability

a.     If We believe that there is a violation of these Terms of Use, We will, in most cases, ask the Facilitator to take action.  We may disable Your access rights if the Facilitator does not take appropriate action or We believe there is credible risk to Us, the Platform, users, or any third parties.

b.     Limitation of Liability. EXCEPT WITH RESPECT TO CLAIMS BROUGHT UNDER SECTIONS 2(b) THROUGH 2(i) OR 13, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT WE HAVE INVOICED YOU 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.

c.     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.
 

15.  General Terms

a.     Surviving Provisions.  The following Sections shall survive any termination or expiration of this agreement as applicable:  Section 2 (Use of Platform); 7 (Data and Content); 9 (Your Responsibilities); 10 and 11 (Proprietary Rights); 13 (Indemnification); 14 (Limitation of Liability); and 15 (General Terms).      

b.     Notices.  Except as otherwise set forth herein, all notices under Agreement will be by email, although we may instead choose to provide notice to Facilitators and Participants through the Platform.   General notices to Powernoodle should be sent to info@powernoodle.com, except for legal notices, which must be sent to legal@powernoodle.com. A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email; and (b) the same day, in the case of a notice sent through the Platform. No notice to Powernoodle is effective unless receipt is acknowledged by Powernoodle. 
 

c.     Privacy Policy.  Our Privacy Policy describes how we collect and use data relating to the use and performance of our products.
 

d.     Assignment.  You may not assign any of Your rights or delegate Your obligations under these terms whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld). We may assign these terms in their entirety (including all terms and conditions incorporated herein by reference), without Your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
 

e.      Governing Law.  This Agreement will be governed exclusively by the internal laws of the Province of Ontario, Canada without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
 

f.     Venue; Waiver of Jury Trial; Fees.  The provincial and federal courts located in Toronto, Ontario will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these terms or their formation as a contract between us or their enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the User Terms. In any action or proceeding to enforce rights under the User Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
 

g.     Name and Logo.  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 marketing@powernoodle.com. Your request to not be included in marketing materials will be effective upon acknowledgement by Us. 
 

h.      Relationship.  We have no employment relationship with You or Facilitators or Participants.

 

i.      No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. For the purposes of this Agreement, Facilitators and Participants are not third-party beneficiaries.

 

j.     Waiver & Severability. No delay or failure by You 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.

 

k.      Dispute Resolution.  Either Party may upon written notice given to the other, pursuant to the terms hereof, invoke the assistance of a mediator to resolve any dispute between them arising out of the terms of this Agreement.  Such mediation shall be non-prejudicial to the rights of either Party.  If the Parties are unable to agree upon a mediator or if the dispute cannot be settled by mediation within thirty days of the notice given, either Party may pursue other remedies available to it at law.
 

16.  Term and Termination

a.     If You are an Facilitator and there is no separate agreement between Your organization and Us, you can cancel your Subscription at any time.

b.     No refunds will be issued for payments received before termination of Subscription.
 

17.  Entire Agreement

a.     Unless there is a separate written agreement between Your organization and Us, these Terms of Use constitute the entire agreement between You and Us.
 

18.  Contacting Powernoodle

a.     If You have any questions about these Terms You may contact Us at legal@powernoodle.com or at our mailing address below:
 

Powernoodle
10 Downie St., Suite 201
Stratford, Ontario, Canada   N5A 7K4