THIS IS A LEGAL AGREEMENT BETWEEN BETTR.ME (A TRACTION ON DEMAND COMPANY) TECHNOLOGY PLATFORM INC. (“Bettr.me”) AND THE CLIENT (“CLIENT”). THIS AGREEMENT GOVERNS CLIENT’S USE OF THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS (THE “TERMS”), YOU ARE NOT AUTHORIZED TO USE THE SERVICES. CLIENT’S USE OF THE SERVICES SHALL CONSTITUTE CLIENT’S AGREEMENT AND INTENT TO BE BOUND BY THE TERMS. THE PERSON AGREEING TO THIS AGREEMENT REPRESENTS AND WARRANTS THAT THEY ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT USING THE SERVICES
AGREEMENT: In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bettr.me and Client agrees as follows:
Definitions. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
- “Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.
- “Aggregate Information” means information about Client’s activities on or in connection with the Services that typically cannot be used to identify, locate, or contact Client including information regarding the frequency of use of the Services, components of the Services most frequently accessed, and browser types used by Client.
- “Agreement” means the entire agreement between Bettr.me and Client for the provision of the Services, includes these Terms.
- “Applicable Law” means any local, state, provincial, federal and foreign laws or orders of any governmental or regulatory authority applicable to the Services and Client’s use thereof, including without limitation all privacy laws, including all applicable legislation regulating use and misuse of electronic messages and marketing e-mails, laws for the protection of Personal Information, and Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation”), to the extent applicable;
- “Business Day” means any day except Saturdays, Sundays or statutory holidays inBritish Columbia, Canada
- “Deliverables” means all products that are made, conceived, developed, or delivered tothe Client by Bettr.me, either alone or jointly with others, in connection with the provisionof the Services and includes all results of Bettr.me’s work pursuant to each SOW, ineach case regardless of the form or format or of how such Deliverables arecommunicated or provided to the Client.
- “Fees” means the aggregate of all fees payable by Client to Bettr.me for the use of theServices in accordance with this Agreement, plus all duties, levies, and taxes inassociation with such fees.
- “Intellectual Property” means all systems, applications, software code (in any form,including source code, executable or object code), algorithms, tool-kits, technology,widgets, formulae, programs, concepts, databases, designs, diagrams, documentation,drawings, charts, ideas, inventions (whether or not such inventions are patentable),know-how, trademarks (whether registered or not), brand names, logos, slogans,methods, techniques, models, procedures, and processes.
- “Intellectual Property Rights” means all copyrights, moral rights, rights associated withworks of authorship, trademark rights, trade name rights, trade secret rights, patent andindustrial property rights (whether registered or not), and other proprietary rights, inIntellectual Property.
- “Personal Data” means any information relating to an identified or identifiable naturalperson (“data subject”). An identifiable natural person is one who can be identified,directly or indirectly, in particular by reference to an identifier such as a name, anidentification number, location data, an online identifier or to one or more factors specificto the physical, physiological, genetic, mental, economic, cultural or social identity of thatnatural person.
- “Personal Information” means any information about an identified or identifiableindividual, including, without limitation, data or information entered into the Services byClient or by Client’s customers or clients, that has not been made publicly available andincludes Personal Data and Sensitive Data.
- “Processing” means any operation or set of operations which is performed on PersonalInformation or on sets of Personal Information, whether or not by automated means,such as collection, recording, organization, structuring, storage, adaptation or alteration,retrieval, consultation, use, disclosure by transmission, dissemination or otherwisemaking available, alignment or combination, restriction, erasure or destruction
- “Salesforce” means the Salesforce.com software as a service (SaaS) platform, including,without limitation, the Salesforce software
- “Security Incident” means accidental or unlawful destruction, loss, alteration,unauthorized disclosure of, or access to, Personal Information
- “Sensitive Data” means (a) social security number, passport number, driver’s licensenumber, or similar identifier (or any portion thereof), (b) credit or debit card number(other than the truncated (last four digits) of a credit or debit card), (c) employment,financial, genetic, biometric or health information; (d) racial, ethnic, political or religiousaffiliation, trade union membership, or information about sexual life or sexual orientation;(e) account passwords; (f) date of birth; (g) criminal history; (h) mother’s maiden name;and (i) any other information that falls within the definition of “special categories of data”under the General Data Protection Regulation or any other applicable law relating toprivacy and data protection.
- “Services” means: i) Bettr.me’s software application currently described as “Bettr.me”,including any updates, upgrades, patches, technology, material, modifications, bug fixes,enhancements, data, features, related website, related technologies, and contents, as itmay be added or removed by Bettr.me from time to time and including all writteninformation, documentation, and materials provided to Client in respect of same; ii) anySalesforce integration services performed by Bettr.me or its affiliates and ii) anysoftware, materials or content made available in connection with the Services
- “SOW” means statement of work
Use and License. Client shall use the Services only in and for Client’s own internalpurposes and business operations. Client may only use the Services during the term of thisAgreement. Client may not use the Services as a service for any third party. No license orright to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease,sublicense or otherwise distribute, transfer or dispose of the Services, in whole or in part, isgranted except as expressly provided by this Agreement. Client shall not modify, copy,create derivative works from, reverse engineer, decompile or disassemble the Services.Nothing in this Agreement will entitle Client to access or use the source code of theServices. Client shall not download or use the Services if Client’s download, installation oruse of the Services is prohibited under Applicable Law. The Client and its Affiliates shall notcreate a product that competes with Bettr.me for a period of 10 years following the Servicetermination date. All or a portion of the Services or Deliverables may be provided by anAffiliate of Bettr.me in Bettr.me’s sole and unfettered discretion.
Client’s Responsibilities. Client are responsible for all of Client’s use of the Services.Client shall:
- Ensure that sufficient and appropriate Salesforce licenses are purchased for Salesforceintegration if desired
- Ensure that sufficient Bettr.me licenses are purchased.
- Use best efforts to prevent unauthorized access to, or use of, the Services, and notifyBettr.me promptly of any such unauthorized access or use; Client acknowledges and agrees that Bettr.me is not be liable for any loss or damage arising from unauthorizedaccess to, or use of, the Services from Client’s account;
- comply with all Applicable Law;
- comply with all anti-corruption or antibribery laws including but not limited to the ForeignCorrupt Practices Act of 1977, the U.K Bribery Act 2010 and the regulations of the Officeof Foreign Assets Control ("OFAC') of the U.S. Department of the Treasury.
- ensure that Client has the necessary consents required for Processing PersonalInformation.
- not use the Services to engage in any deceptive, misleading, illegal or unethicalactivities that may be detrimental to Bettr.me;
- not collect, use, or disclose any Personal Information in connection with the Services,unless Client has obtained all necessary consents under all Applicable Law to do so;
- not attempt to gain unauthorized access to the Services;
- not upload to, or store within, the Services any infringing, obscene, threatening,defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, includingmaterial that is harmful to children or violates third party privacy rights;
- not use the Services to store or transmit any viruses, Trojan horses, worms, time bombs,cancel bots, or other computer programming routines or code that may damage ordetrimentally interfere with the Services or any data or Personal Information maintainedon or in connect with the Services; and
- not include any Sensitive Date in the Services. Client will be liable for any SecurityIncident in connection with the sending of Sensitive Data through such functionalities byClient;
If required, Bettr.me may provide consulting services as part of the Services, Client shall
- appoint a representative to supervise and coordinate the Client’s performance ofits obligations under the Agreement. The representative will coordinate withBettr.me in a professional and prompt manner and will have the necessaryexpertise and authority to act on behalf of the Client;
- Provide Bettr.me with access to the Client’s systems, data, and documentation,as may reasonably be required by Bettr.me to facilitate the provision of theServices;
- Provide Bettr.me with access to necessary personnel, as may reasonably berequired by Bettr.me;
- Provide appropriate direction, as requested by Bettr.me; and
- Perform appropriate and timely testing as reasonably required by Bettr.me
Travel. The Client shall reimburse Bettr.me for reasonable air travel and other businessrelated expenses incurred by Bettr.me in performing the Services if travel is required by theSOW. In the event Bettr.me’s employees are required to travel for the provision of theServices, the Client shall provide a meal allowance in the amount of $75.00 per employeeper day of travel. All travel expenses incurred by Bettr.me are subject to the payment termscontained within this Agreement.
Deployment and Acceptance
5.1 Deployment. To the extent deployment of Deliverables is required. All deployments will bebetween 8:30 am and 5:00 pm local time in the region where Bettr.me’s deployment team issituated, on Business Days (“Standard Deployment Hours”). In the event the Clientrequires deployment outside of Standard Deployment Hours, the Client shall pay 1.5 timesthe hourly rate agreed upon in the SOW, based on the hours required for deployment.
- Bettr.me and the Client shall use reasonable efforts to set a deployment schedule: (i) atthe commencement of the Services; or (ii) if Bettr.me and the Client are unable to set adeployment schedule at the commencement of the Services, at least one month inadvance of its anticipated deployment date; or (iii) in all other cases, on such other dateas Bettr.me may decide, provided that Bettr.me will consult with the Client when setting adeployment schedule and will take into account the Client’s desired dates; an
- In the event the Client requires a change to the deployment schedule, the Client shallnotify Bettr.me no later than 15 days prior to the scheduled deployment date, failingwhich the Client shall be responsible for the Fees applicable to the delay.
5.2 Acceptance. Unless otherwise set out in each SOW, the Client’s acceptance of theServices and the Deliverables shall be deemed to occur at the time Bettr.me has, in itsreasonable opinion, completed the Services and notified the Client that it has completed theServices or provided the Deliverables (as applicable) unless: (a) the Client has commerciallyreasonable grounds for rejecting the Services or Deliverables, on the basis that suchServices or Deliverables do not materially conform with the requirements set out in therelevant SOW; and (b) the Client provides written notification (the “Client Notice”) toBettr.me within five days of completion of the Services or provision of the Deliverables (asapplicable), such Client Notice to contain a list of deficiencies with sufficient details to permitBettr.me to remedy such deficiencies. Upon receipt of such Client Notice, Bettr.me shallhave a reasonable period of time to remedy such deficiencies, taking into account thesignificance of such deficiencies relative to the scope of the Services and / or Deliverables
- Support. Bettr.me will provide reasonable telephone, web-based, and / or e-mailtechnical support to Client during normal business hours (Pacific Standard Time) onsuch terms and conditions as Bettr.me reasonably determines. Bettr.me will makereasonable efforts to respond to Client’s support queries within one business day ofBettr.me’s receipt of a support query.
- In the event that any request, correspondence, enquiry or complaint from Client’scustomer, regulatory or third party is made directly to Bettr.me in connection withBettr.me’s processing of Personal Information, Bettr.me shall promptly inform Client,providing details of the same, to the extent legally permitted. Unless legally obligated todo so, Bettr.me shall not respond to any such request, inquiry or complaint withoutClient’s prior consent except to confirm that the request relates to Client to which Clienthereby agrees to.
“Confidential Information” means any information that is of a confidential nature that isdisclosed by one party to this Agreement (the “Disclosing Party“) to the other party to thisAgreement (the “Receiving Party “), including, but not limited to the Disclosing Party’sbusiness information, customer information, trade secrets (including all IntellectualProperty contained within the Services), and Personal Information. ConfidentialInformation does not include any information that is disclosed by one party to anotherparty if that information:
- is at the time of disclosure in the possession of the Receiving Party or anyof its Affiliates and was obtained without an obligation of confidence
- is independently developed by the Receiving Party or any of its Affiliateswithout any use of or reference to the Disclosing Party’s ConfidentialInformation;
- is or becomes publicly available without breach of any obligation ofconfidence;
- is acquired by the Receiving Party from a third party who provided theinformation without breaking any express or implied obligations or dutiesto the Disclosing Party; or
- is intentionally released for disclosure by the Disclosing Party or with theDisclosing Party’s prior written consent
- The Receiving Party will take all reasonable precautions necessary to safeguard theconfidentiality of the Confidential Information. The Receiving Party will not make anyunauthorized use of the Confidential Information or disclose, in whole or in part, any partof the Confidential Information to any individual or entity, except as otherwise permittedhereunder or to those of the Receiving Party’s employees or consultants who requireaccess for the proper operation of the Services and only on the condition that suchemployees or consultants agree to comply with the use and nondisclosure restrictionsapplicable to the Confidential Information under this Agreement. The Receiving Partyacknowledges that any unauthorized use or disclosure of Confidential Information maycause irreparable damage to the Disclosing Party. In all cases, the Receiving Party shalluse the same degree of care to protect the Confidential Information as it uses to protectits own information of a confidential and proprietary nature, but in no event shall theReceiving Party use less than a reasonable degree of care.
Notwithstanding the foregoing, Client acknowledges and agrees as follows
- Client grants to Bettr.me a non-exclusive, royalty free right during Client’s use ofthe Services to process Client’s Personal Information and Aggregate Informationto the extent required to provide the Services to Client, to improve the featuresand functionality of the Services, and to communicate with Client in the eventClient submits any questions or requests to Bettr.me;
- that Bettr.me may access or disclose Client’s Confidential Information if: (i)Bettr.me in good faith believes that disclosure is necessary to comply with anyApplicable Law, legal process or government request, (ii) to enforce theAgreement; (iii) to protect the security or integrity of the Services, or (v) torespond to an emergency which Bettr.me believes requires Bettr.me to disclosedata to assist in preventing a death or serious bodily injury. In each of theforegoing cases, Bettr.me will disclose only such Confidential Information asBettr.me believes, in good faith, is necessary; and
- if, but only to the extent that Client authorizes the use of the Services inconnection with Third Party Applications, Client consents to Bettr.me releasing toThird Party Developers any Confidential Information entered into the Servicesreasonably required by such Third Party Developers for the proper use of suchThird Party Applications, and such Third Party Developer’s use of suchConfidential Information shall be governed by Client’s agreement with such ThirdParty Developers.
- Indemnification. Client shall defend, indemnify, and hold Bettr.me and its directors,officers, employees, and Affiliates harmless against any loss, damage, or cost (includingreasonable attorneys’ fees) incurred in connection with a claim, demand, suit, orproceeding alleging that Client’s use of the Services has harmed a third party or infringesupon the privacy rights of a third party or is in violation or alleged violation of anyApplicable Laws. Bettr.me shall provide reasonable information, cooperation andassistance in defending any such claim.
- Third Party Developers. The Services may include features that permit Client toconnect the Services to third party applications (“Third Party Applications“) developed bythird parties (“Third Party Developers“). Client acknowledges and agrees that: (1)Bettr.me is not such Third Party Developers and is not an Affiliate of such Third PartyDevelopers; and (2) Bettr.me makes no representations or warranties regarding ThirdParty Developers, Third Party Applications, or their use of Confidential Information, toanyone, express, implied or statutory (including warranties of design, operation, orfitness for any use or purpose). No representation or warranty by such Third PartyDevelopers is binding on Bettr.me nor shall breach of such representation or warrantyrelieves Client of Client’s obligations to Bettr.me. Third Party Developers may requireClient to enter into license agreements or pay license fees for the use of their Third PartyApplications, which, unless expressly set out herein, are not included in the Fees
- Outage Policy. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT Bettr.meDOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT Bettr.me MAY OCCASIONALLY EXPERIENCEDISRUPTION DUE TO INTERNET DISRUPTIONS OR DISRUPTIONS THAT ARE NOTWITHIN Bettr.me’S CONTROL. ANY SUCH DISRUPTION SHALL NOT BECONSIDERED A BREACH OF THIS AGREEMENT.
- All Intellectual Property contained in the Deliverables or made available ordisclosed to the Client, as part of the Services under any SOW or otherwiseprovided by Bettr.me to the Client (collectively, “Bettr.me IntellectualProperty”), and all Intellectual Property Rights in Bettr.me Intellectual Propertyare and shall remain the sole and exclusive property of Bettr.me and except forthe license to use the Bettr.me Intellectual Property pursuant to section 11(a) ofthis Agreement, the Client is granted no right, title, or interest in the Bettr.meIntellectual Property.
- Bettr.me grants to the Client a worldwide, perpetual, non-exclusive royalty freelicense (the “License”) to use the Bettr.me Intellectual Property solely for theClient’s internal purposes as part of the Deliverables or as part of any systemsimplemented by Bettr.mein the provision of the Services. Other than the License,no ownership or license in any Bettr.me Intellectual Property shall be granted tothe Client and, for greater certainty, but without limitation, the Client shall not begranted any rights to license, sub-license, sell, assign, transfer, or grant theBettr.me Intellectual Property to any third parties without the prior express writtenconsent of Bettr.me
- All Intellectual Property that was owned by or developed by or acquired by theClient or its Affiliates separate from this Agreement and without any use of theServices, Deliverables, or the Bettr.me Intellectual Property (collectively, “ClientIntellectual Property”) shall remain the exclusive property of the Client. No rightsof any kind shall be granted to Bettr.me in the Client Intellectual Property or anyConfidential Information belonging to the Client.
- Bettr.me and its Affiliates shall own all rights, title and interest, including allIntellectual Property Rights, in and to any improvements to the Services or anynew programs, upgrades, modifications or enhancements thereto, even whensuch refinements and improvements result from Client’s requests or comments.To the extent, if any, that ownership in such refinements and improvements doesnot automatically vest in Bettr.me or its Affiliates by virtue of this Agreement orotherwise, Client hereby transfers and assigns to Bettr.me all rights, title, andinterest which Client may have to such refinements and improvements
Fees and Payment Terms.
- Client shall pay all Fees in advance, promptly when due in accordance with thefollowing:
- All Fees will be billed monthly or yearly, based on a subscription model, on the firstday of the month or the year, as applicable, of the subscription term, and are due onthe signature date of the applicable invoice;
- Fees are based on the number of licenses being used to access the Services, basedon the subscription package selected by Client from the packages available, as theymay be updated from time to time
- To the extent that Fees are billed and paid through a third party credit cardprocessor, such third party’s standard terms and conditions shall apply;
- Failure to pay Fees shall constitute a material breach of this Agreement;
- All outstanding amounts owing under this Agreement will incur interest at a rate of1.5% per month (or if such interest rate is not permitted by applicable law, then themaximum interest rate permitted by applicable law), commencing on the due date,calculated monthly, until such time as they are paid in full. Client shall pay all costsincurred by Bettr.me in collecting unpaid invoices, including but not limited to legalfees;
- If Bettr.me is required to do any integration as part of the Services and Deliverables,the cost of such integration will incur a 2% tech fee;
- Client is solely responsible for payment of any goods and services taxes, salestaxes, value added taxes, and excise taxes, as applicable (but excluding any taxesattributable to Bettr.me’s income), resulting from Client’s use of the Services; and
- Except where otherwise expressly provided, all monetary amounts in this Agreementare stated and shall be paid in U.S. Dollars (USD)
Term and Termination.
- This Agreement shall commence on the earlier date of (1) Client’s acceptance of thisAgreement; or (2) delivery or download or first use of the Services (the ”Commencement Date “), and shall continue for the term setout in the order formgoverned by these Terms (the “Initial Term“) unless otherwise agreed to between theparties, in writing, or unless otherwise terminated earlier by either party pursuant tothis Agreement. Subject to section 13(b), unless otherwise agreed to between theparties in writing, at the end of the Initial Term (and each renewal term thereafter),this Agreement will automatically renew for additional consecutive periods of samelength as the Initial Term. Other than the Fees, the terms and conditions containedherein shall apply to renewal terms;
- At the end of the Initial Term, either party may terminate this Agreement withoutcause upon providing no less than one full calendar month’s written notice to the other. Notwithstanding the foregoing, Bettr.me may terminate this agreement atanytime with 30 days written notice to the Client;
- Either party may terminate this Agreement for cause immediately upon a materialbreach of this Agreement by the other party. Except in the case of termination byClient for cause, termination under this part shall not relieve Client of Client’sobligation to pay any Fees accrued or payable to Bettr.me under the terms of thisAgreement and Client shall remain obligated to pay all Fees owed for the remainderof any subscription term(s) for the Services, all of which Fees shall becomeimmediately due and payable in full.
- Upon the termination or expiration of this Agreement, Client shall immediatelydiscontinue use of the Services on all licenses and Client shall delete or destroy allelectronic and physical stand-alone copies of the Services. Upon Client’s request,provided such request is made within 30 days of the date of termination of thisAgreement, Bettr.me will make available a CSV extract of Client’s data entered intothe Services, that is in Bettr.me’s possession or control and at the end of that period,Bettr.me will have no obligation to maintain or provide Client’s data, and Bettr.memay, at its option, delete or destroy all copies of Client’s data in its possession orcontrol.
Limitation of Liability and Disclaimers
- Disclaimer of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLYPROVIDED HEREIN: (1) THE SERVICES ARE PROVIDED “AS IS” WITHOUTWARRANTY OF ANY KIND; AND (2) TO THE MAXIMUM EXTENT PERMITTED BYLAW, Bettr.me AND ITS AFFILIATES EACH EXPRESSLY DISCLAIMS ANY ANDALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEESWITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED,ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OROTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ORNONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OFFACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDINGCAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES,WHETHER MADE BY EMPLOYEES OF Bettr.me OR OTHERWISE, WHICH ISNOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE AWARRANTY BY Bettr.me FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITYOF Bettr.me WHATSOEVER. EXCEPT AS MAY BE OTHERWISE SPECIFICALLYPROVIDED HEREIN, Bettr.me SPECIFICALLY DISCLAIM, WITHOUT LIMITATION,ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS,IMPLIED OR OTHERWISE.
- Neither party shall be liable to the other for any incidental, special, indirect,consequential or punitive damages of any character, including without limitation,damages for loss of business or good will, work stoppage, loss of information ordata, or loss of revenue or profit, resulting from the provision of the Services or theuse by the Client of the Deliverables or the reliance upon the Deliverables, or other financial loss arising out of or in connection with the Services or the Deliverables,regardless of the legal theory asserted, whether based on breach of contract, breachof warranty, tort (including negligence), product liability, or otherwise. Even ifBettr.me has been advised of the possibility of such damages and even if a remedyset forth herein is found to have failed of its essential purpose, Bettr.me’s aggregateand total liability under the Agreement for any and all claims arising out of the shallbe limited to direct damages and shall not exceed amounts paid or due by the ClienttoBettr.me in the year in which the claim arose
- Changes. Bettr.me reserves the right to modify these Terms at any time, which modifiedTerms will supersede prior versions. Unless otherwise provided, any modifications to theTerms will be effective fourteen (14) days after Client has been notified of such modifiedTerms or they have been published, whichever occurs first. In the event of materialchanges to this Agreement, Bettr.me will provide notice to Client, either through theServices, by way of an electronic (including e-mail) notification, or by other reasonablemeans prior to the effective date of such material changes, and should Client elect not toagree to such material changes, Client’s sole remedy shall be to terminate thisAgreement in accordance with its terms. Client’s continued use of the Services will bedeemed acceptance thereof.
- Trial Accounts. Bettr.me may, but is not obligated to, provide a trial account to Client,and this Agreement shall apply to Client’s use of the Services during such trial accountperiod.
- Proper Law. This Agreement shall be governed by and construed in accordance withthe laws of the province of British Columbia and the parties agree to attorn to theexclusive jurisdiction of British Columbia
- Arbitration. All disputes arising out of or in connection with the Agreement shall befinally settled under the Rules of Arbitration of the International Chamber ofCommerce by one or more arbitrators appointed in accordance with the said Rules.
- Survival. Sections 2, 5, 7,8, 10, 11, 12, 13, and 14 of this Agreement shall surviveany expiration or termination of this Agreement for any reason.
- Headings. The headings used in the Agreement are for convenience and referenceonly and shall not affect the construction or interpretation of this Agreement.
- Assignment. This Agreement may not be transferred or assigned by either partywithout the prior written consent of the other party, which consent may not beunreasonably withheld or delayed. Notwithstanding the foregoing, either party maytransfer or assign this Agreement (1) to an Affiliate; (2) in the event of a sale, mergeror other transfer of substantially all of its business and assets; or (3) in the event of asale or transfer by Bettr.me of the Services and substantially all Bettr.me’s businesscomponents required to operate the Services, without the other party’s consent. The terms and conditions of this Agreement shall enure to the benefit of and beenforceable by the parties hereto and their permitted successors and assigns.
- Notice. Any notice or communication from one party to the other required orpermitted to be given hereunder shall be in writing and either personally delivered,sent by postal service, sent via courier (with evidence of delivery in any case), or, inthe case of notice of changes to these terms and conditions, sent by secureelectronic means. All notices shall be in English and shall be effective upon actualreceipt, except for notices sent by secure electronic means, which shall be deemedto have been received the Business Day after such notices are sent. Unlessotherwise requested, all notices to Bettr.me shall be sent to the attention of “Legal”and may be sent by registered mail or courier to #500 – 2700 Production Way,Burnaby, B.C. V5A 0C2. Unless otherwise requested, all notices to Client shall besent to the attention of “Legal” and may be sent by registered mail or courier to theaddress provided by Client at the time of entering into this Agreement, or such otheraddress as Client may provide, in writing, to Bettr.me.
- Force Majeure. Neither party shall be deemed in default hereunder, nor shall it holdthe other party responsible for, any cessation, interruption or delay in theperformance of its obligations hereunder due to causes beyond its reasonablecontrol including, but not limited to, earthquake, flood, fire, storm or other naturaldisaster, act of God, labor controversy or threat thereof, civil disturbance orcommotion , act of terrorism, disruption of the public markets, war or armed conflictor the inability to obtain sufficient material, supplies, labor, transportation, power orother essential commodity or service required in the conduct of its business,including Internet access, or any change in or the adoption of any law, ordinance,rule, regulation, order, judgment or decree.
- Waiver. The waiver by any party hereto of a breach or a default of any provision ofthis Agreement by another party shall not be construed as a waiver of anysucceeding breach of the same or any other provision, nor shall any delay oromission on the part of either party to exercise or avail itself of any right, power orprivilege that it has, or may have hereunder, operate as a waiver of any right, poweror privilege by such party.
- Relationship. The Agreement shall not be construed as creating any partnership,joint venture, or agency among the parties and no party shall be deemed to be thelegal representative of any other party for the purposes of the Agreement. No partyshall have and shall not represent itself as having, any authority to act for, toundertake any obligation on behalf of any other party, except as expressly providedin the Agreement.
- Gender, Plural and Singular. In the Agreement, unless the context otherwiserequires, the masculine includes the feminine and the neuter genders and the pluralincludes the singular and vice versa, “or” is not exclusive” and “including” is notlimiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions ofthe Agreement may be made accordingly as the context requires.
- Entire Agreement. This Agreement constitutes the entire understanding of the partieswith respect to the subject matter herein. This Agreement supersedes all previouscommunications between the parties, whether written or oral, with respect to thesubject matter herein.
- U.N. Convention. The parties agree that the United Nations Convention on theInternational Sale of Goods shall not apply to the Terms and shall not apply to anypurchase order issued in connection herewith.