14003691 CANADA INC.
SOFTWARE LICENSE AGREEMENT AND TERMS OF SERVICE
for THE COACHES CONSOLE®
© 2022 14003691 CANADA INC.
All rights reserved
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE. BY USING THIS SOFTWARE, EVEN FOR REVIEW AND CONSIDERATION, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE LICENSED SOFTWARE.
The materials on this website and within The Coaches Console® system (together, “Site”) and the services furnished on the Site (“Services”) are provided by 14003691 CANADA INC., hereinafter referred to as the “Corporation”, as a service to its registered and authorized users. By clicking on the “I Agree” button and using the Site or Services you agree to the following terms and conditions (“Agreement”). If you do not agree with these terms and conditions, do not click the “I Agree” button and do not use the Site or the Services.
You agree that this Agreement is the complete and exclusive statement of the Agreement between the Corporation and you, which supersedes any proposal or prior agreement, oral or written, and any other communications between you and the Corporation relating to the subject matter of this Agreement.
THE CORPORATION MAY, AT ANY TIME, REVISE THIS AGREEMENT AND MODIFY, ENHANCE OR DELETE FEATURES OR SERVICES AVAILABLE ON THE SITE BY UPDATING THIS POSTING. YOU SHOULD VISIT THIS PAGE FROM TIME TO TIME TO REVIEW THE THEN CURRENT TERMS BECAUSE THEY ARE BINDING ON YOU. CERTAIN PROVISIONS OF THESE TERMS MAY BE SUPERSEDED BY EXPRESSLY DESIGNATED LEGAL NOTICES OR TERMS LOCATED ON OTHER PARTICULAR PAGES AT THE SITE. THE CORPORATION DOES NOT AND WILL NOT ASSUME ANY OBLIGATION TO PROVIDE YOU WITH NOTICE OF ANY CHANGE TO THESE TERMS AND CONDITIONS. YOUR CONTINUED USE OF THE SITE OR SERVICES FOLLOWING CHANGES TO THESE TERMS AND CONDITIONS BY THE CORPORATION CONSTITUTES AND SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES.
Subject to the terms and conditions of this Agreement and in consideration of your use of the Site and the Services and payment of the user fees, the Corporation grants you a limited, nontransferable, and nonexclusive license to access and use the Site and the Services. This is a license only to use the Site and its Services for its specific and intended purpose and it is not a transfer of title.
You shall not: (1) use any automated process or software robot to print, download, view, or otherwise use content from the Site or its Services; (2) use the Site or its content, or Services for the purpose of soliciting a product, solution, sale or service to any person or company that may have a listing or a content included in the Site; (3) modify the Site or the Services or use them for any type of commercial purpose, public display performance or posting on any computer network; (4) decompile, reverse engineer or disassemble the Site or the Services; (5) remove any trademark, copyright or other proprietary notices from the Site or the Services; (6) transfer your license to any other person; or, (7) create derivative works based on the Site, Site materials, or the Services or the supporting software. the Corporation reserves any and all rights not expressly granted in this Agreement.
You are responsible for providing all equipment necessary to access the Site and use the Services. You may become a registered user by completing an online registration form and paying the subscription fee. Upon submitting the online registration application, the Corporation, or its authorized agent, shall process the application. You warrant and agree that you shall: (1) provide true, accurate, current and complete information about yourself on the registration form and (2) update your registered user information so that it is true, accurate, current and complete at all times that you are a registered user. You must promptly advise the Corporation of all changes including, but not limited to, changes in your address and the credit card used for billing with the Corporation. If the Corporation determines or reasonably believes that the information that you have provided is untrue, inaccurate, or incomplete, then the Corporation or its authorized agent may suspend or terminate your use and refuse any and all current or future use of the Site or Services, preserving the Corporation’ rights to other legal or equitable relief.
If you are a registered user, the Corporation will issue to you a user identification name and password to permit you to access the Site and Services. You warrant and agree that you shall not use a user name that violates the rights of a third party. the Corporation, at its sole discretion, reserves the right to deny the use of any user name it deems inappropriate. Additionally, the Corporation reserves the right, in its sole discretion, to cancel the membership of a registered user who uses his or her user name in violation of the terms and conditions of this Agreement or in any other way which the Corporation, in its sole discretion, deems inappropriate.
Your membership, unique user name and password are nontransferable and nonassignable. You agree to (1) promptly advise the Corporation of any unauthorized use of your unique user name and password or any other breach of security, and (2) assure that you have correctly exited from the the Corporation Site and Services upon completion of each log-in session. You are responsible and liable for any unauthorized use of the the Corporation Site and Services unless and until you provide notification to the Corporation concerning the alleged unauthorized use. Unauthorized access or use of the Site and Services is illegal and a breach of the terms and conditions of this Agreement. You agree to indemnify the Corporation concerning all activities conducted through or on your account.
You shall pay, in accordance with billing options selected, any fees or other charges at the rate in effect for the billing period in which those charges are incurred. Charges for the Services and the use of the Site will be based on the date of account activation. If you fail to make timely payments or otherwise breach this Agreement, the Corporation may terminate your account without prior notice and you agree to pay to the Corporation the actual costs of collection, including reasonable attorney’s fees and expenses.
5. BILLING ERRORS
If you believe that the Corporation has erroneously charged your credit card account, you agree to promptly notify the Corporation of such error. If you fail to notify the Corporation within thirty (30) days after the alleged error first appears on your credit card statement, the charged amount shall be deemed accepted by you for all purposes, including, but not limited to, the resolution of inquiries or investigations made by the issuer of your credit card. You agree to release the Corporation from all liabilities and claims of loss resulting from any alleged billing error or any discrepancy you fail to report to the Corporation within thirty (30) days of its submission to you.
The term of this Agreement shall be (1) for monthly members, for a period of one (1) month and shall be automatically renewed for successive one-month periods, (2) for annual members, for a period of one (1) year and shall be automatically renewed for successive one-year periods, and (3) for lifetime members, for the life of the Software, without further action by either the Corporation or you, until either you or the Corporation terminates this Agreement as provided below.
7. TERMINATION OF USE
You may request cancellation of your status as a registered user by sending the “Discontinue Membership” form located on the Site by e-mail to the Corporation. The Corporation will process your request within thirty (30) days after receiving the Discontinue Membership form. Your membership will be discontinued and you will no longer incur membership fees after the end of the then-current monthly or annual term (as applicable), or have access to the Site or its Services after the Corporation sends a confirmation e-mail to you within such 30-day period that your membership has been discontinued. See “Refund Policy” below to determine the amount of any refund to which you may be entitled.
Without limiting its other rights or remedies, the Corporation has the right, in its sole discretion, to issue a warning, suspend temporarily, suspend indefinitely, or terminate this Agreement and your access to and use of the Site and Services, with or without prior notification, if: (1) the Corporation believes that you have breached any terms and conditions of this Agreement or any document incorporated herein, if any, by reference; (2) your credit card cannot be processed or you fail to pay any amount due by the payment due date; (3) the Corporation is unable to authenticate, substantiate or verify information which you have provided to the Corporation; (4) the Corporation has a reasonable belief that your actions might give rise to legal liability for the Corporation or its users; or (5) the Corporation decides to cease operations or otherwise discontinue any or all of the Site or Services provided hereunder. Additionally, you understand and agree that neither the Corporation nor a third party acting on its behalf shall be liable to you for termination of your membership or the denial of access to the Site or Services to you.
8. REFUND POLICY
If you are a monthly or annual member, you will receive 100% of your money back if you cancel within the first 30 days of active membership. If you cancel after the first 30 days, the following applies:
(a) Monthly members. If you are a monthly member and you cancel after the first 30 days of your paid membership, you do not get a refund – you simply cancel and your monthly membership fee will stop at the end of the month in which your cancellation is processed, as provided in the “Termination of Use” section above.
(b) Annual members. If you are an annual member (i.e., if you have paid for 12 months up front) and you cancel after the first 30 days of your paid membership, you do not get a refund – you simply cancel and your annual membership fee will stop at the end of the then-current membership year, as provided in the “Termination of Use” section above.
9. OWNERSHIP OF MATERIAL
All intellectual property rights in the software for the Services and Site and user documentation are owned by the Corporation or its suppliers and are protected under applicable United States copyright law, other applicable copyright laws and international treaties. You own all data and content entered into the Software by you and your clients. The Corporation and its suppliers retain all rights not expressly granted in this Agreement.
You shall not use any automatic device or manual process to monitor or reproduce the Site or its Services, and you shall not use any device, software, virus, or computer code to interfere, or attempt to disrupt or to damage, the Site and any communication or Services on it. You understand that the introduction by the Corporation of various technologies may not be consistent or operational across all platforms, e.g., Windows or Macintosh. You understand that your use of the Site and Services are at your sole risk. the Corporation provides its services on a commercially reasonable basis and does not guarantee that you will be able to access the Site or its Services at a given time or location of your choosing or that the Corporation will have adequate capacity for the Site or Services as a whole.
11. DISCLAIMER OF WARRANTY
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR OWN AND SOLE RISK. THE SITE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON INFRINGEMENT. THE CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THE CORPORATION MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, USEFULNESS, ACCURACY OR COMPLETENESS OF THE SITE OR SERVICES. THERE IS NO WARRANTY, EXPRESS OR IMPLIED, AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR INFRINGEMENT. YOU ALSO UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES OR LINKS IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YOU UNDERSTAND THAT THE CORPORATION CAN NOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. THE CORPORATION DOES NOT ASSUME ANY RESPONSIBILITY OR RISK FOR YOUR USE OF THE INTERNET. YOU AGREE AND ADMIT THAT USE OF THE INTERNET IS RISKY AND YOU VOLUNTARILY ASSUME THAT RISK BY USING THE INTERNET. THE CORPORATION MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTION ENTERED INTO THROUGH THE SITE AND IS NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR PRIVATE INFORMATION BY SELLERS OR THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE CORPORATION (OR ITS LICENSORS, AGENTS, SUPPLIERS, RESELLERS, SERVICE PROVIDERS, OR ANY OTHER SUBSCRIBERS OR SUPPLIERS) BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE, OR GOODWILL, WHICH MAY ARISE FROM ANY PERSON’S USE, MISUSE, OR INABILITY TO USE THE SITE OR SERVICES, EVEN IF THE CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS IS FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF THE CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE CORPORATION ’ MAXIMUM TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR DIRECT DAMAGES EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU FOR USE OF THE SITE OR SERVICES FOR A PERIOD OF NO MORE THAN ONE (1) MONTH FROM THE ACCRUAL OF THE APPLICABLE CAUSE OR CAUSES OF ACTION. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to defend, indemnify, and hold harmless the Corporation and its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, losses, liabilities, expenses, costs, or demands, including without limitation, legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your use, misuse, or inability to use the Site or Services, or your breach of this Agreement. the Corporation shall promptly notify you by electronic mail of any such claim or suit, and cooperate fully (at your expense) in the defense of such claim or suit. the Corporation reserves the right to participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but the Corporation is not obligated to do so.
14. LINKS AND ACCOUNT INFORMATION
Some websites which are linked to the Site are owned and operated by third parties. Because the Corporation has no control over such websites and resources, you acknowledge and agree that the Corporation is not responsible for the availability of such external websites or resources, is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources. You further acknowledge and agree that the Corporation shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party content, goods or services available on or through any such website or resource. If you decide to access any such third party websites, you do so entirely at your own risk and subject to any terms and conditions and privacy policies posted therein. You further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by this Agreement. Links to external websites or inclusions of advertisements do not constitute an endorsement by the Corporation of such websites or the content, products, advertising or other materials presented on such websites, but are for your convenience. You access them at your own risk. the Corporation expressly disclaims any liability for any damages whatsoever incurred by you in connection with the use of any websites, the access to which was found through the Site. the Corporation expressly disclaims any liability derived from the use and/or viewing of any links that may appear on the Site. You hereby agree to hold the Corporation harmless from any and all damages and liability that may result from your use of links that may appear on the Site.
15. INTELLECTUAL PROPERTY
Any materials accessible from the Site are the proprietary information and valuable intellectual property of the Corporation or the party that provided the material to the Corporation, and the Corporation or the party that provided the material to the Corporation retains all right, title, and interest in the material. Accordingly, the material may not be copied, distributed, republished, uploaded, posted, or transmitted in any way without the prior written consent of the Corporation, except that you may print out a copy of the material solely for your personal use. In doing so, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the material. Modification or use of the content except as expressly provided in these Terms and Conditions violates the Corporation’ intellectual property rights. Neither title nor intellectual property rights are transferred to you by access to the Site. All material included on the Site, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the exclusive property of the Corporation or its content suppliers and is protected by United States and international copyright laws, as well as other laws and regulations.
16. LEGAL COMPLIANCE
You shall conform to all applicable domestic and international laws, statutes, ordinances, and regulations regarding use of the Site and Services. IF THE CORPORATION DETERMINES THAT YOU INTEND TO USE THE THE CORPORATION SITE OR SERVICES FOR ANY ILLEGAL OR IMPROPER PURPOSES, THE CORPORATION EXPRESSLY RESERVES THE RIGHT TO TERMINATE YOUR MEMBERSHIP IMMEDIATELY.
17. NO AGENCY RELATIONSHIP
Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture or formal business entity of any kind between the Corporation and you; and the rights and obligations of the parties shall be limited to those expressly set forth in this Agreement.
Any notice required to be given under this Agreement shall be provided by e-mail to a functioning e-mail address of the party to be noticed, or by personal delivery by commercial carrier, such as FedEx or Airborne. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
19. FORCE MAJEURE
The Corporation shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including, but not limited to: acts of God, fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Corporation performance.
20. GENERAL PROVISIONS
a. Governing Law. You and The Coaches Console agree that this Agreement is, and shall be, governed by, enforced and interpreted in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein.
b. Rights to Injunctive Relief. You and the Corporation acknowledge and agree that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
c. Choice of Forum. Regardless of what venue would otherwise be permissive or required, the parties stipulate that all actions arising under or related to this Agreement shall be brought in the Province of Quebec, Canada. The parties agree that either of such forums is mutually convenient and bears a reasonable relationship to this Agreement, and the parties waive objection to any venue in those forums. The parties irrevocably submit to the jurisdiction of such courts for the purpose of any suit, action or other proceeding arising under or related to this Agreement. Process in any action or proceeding may be served on any party anywhere in the world.
d. Limitations Period. You and the Corporation agree that the statute of limitations for causes of actions for suits at law or claims in equity arising from a breach of this Agreement or pertaining to a claim under this Agreement is one (1) year from the date the action accrues or it is forever barred.
e. Assignment. The rights and liabilities of the parties to this Agreement will bind and inure to the benefit of the parties and their respective assignees, successors, executors, and administrators, as the case may be. Neither these terms and conditions nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred by you, in whole or in part.
f. Severability. If any term, clause or provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision. Such invalid term, clause or provision shall be deemed to be severed from these terms and conditions, and the remainder of this Agreement will continue in full force and effect.
g. Attorneys’ Fees. If any party breaches any of its obligations under this Agreement, the breaching party shall pay all reasonable costs and fees, including all attorney’s and other professional’s fees, incurred by any non-breaching party in protecting, enforcing, or interpreting its rights under this Agreement, including fees incurred in pre-trial proceedings and discovery, trial and on appeal. In addition, the nonprevailing party in any suit or action relating to this Agreement shall pay all such costs and fees incurred by the prevailing party.
h. No Waiver. No waiver by the Corporation shall be deemed a waiver of any subsequent default of the same provision of these terms and conditions.
i. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of these terms and conditions.
j. Other Jurisdictions. the Corporation makes no representation that the Site or Services are appropriate or available for use in other locations. Those who choose to access the Site or Services from such locations do so on their own initiative and are solely responsible for compliance with all applicable laws and regulations.
k. Language. The parties have required that this Agreement and all documents or notices related thereto be in the English language. Les parties ont exigé que cette convention et tout document ou avis afférents soit en langue anglaise.